Additional changes will further restrict employers' use of the Tier 2 (Sponsored Skilled Worker) category, and the increased maintenance requirement will impose a greater burden on migrants.
In line with its goal to reduce net migration, the UK government has announced further measures to restrict the number of migrants from outside the European Economic Area who can enter the UK to work. These changes to the Immigration Rules will take effect from 14 June 2012.
A summary of the main changes is set out below.
The minimum skills threshold of jobs which may be sponsored under Tier 2 (General) and Tier 2 (Intra Company Transfer) is being raised from jobs at NQF level 4 to jobs at NQF level 6. The new skill level will take effect from 14 June 2012. The change will not apply to Tier 2 (General) applicants with an offer of a job on the Shortage Occupation List or to migrants who already hold a Tier 2 (General) or Tier 2 (ICT) visa and who will be applying to extend their visa after 14 June 2012.
This means that some roles, such as IT technicians and office managers, will no longer be open to migrant workers seeking sponsorship under Tier 2.
Any migrant who is preparing a visa application and whose role may not qualify under the higher skills threshold should submit their visa application before 14 June 2012.
Resident Labour Market Test
The rules for businesses advertising highly paid and PhD jobs will be relaxed. Sponsors will no longer have to advertise roles attracting a salary of at least £70,000 or PhD roles on Job Centre Plus—where they are unlikely to get applicants for these types of jobs—but they will still have to advertise externally.
The level of funds required to satisfy the maintenance requirement will increase to become more in line with the cost of living in the UK. This change to the Immigration Rules came into effect from 6 April 2012, but the implementation of this change has been delayed to allow migrants time to hold these funds for a 90-day period.
For Tier 2 (General) migrants, this will be increased to £900 for the main applicant and £600 for each dependant. Sponsors may continue to certify maintenance on the certificate of sponsorship so only those migrants whose sponsor is unwilling to certify maintenance will be affected.
Tier 1 (General) migrants wishing to extend their leave whilst in the UK will also be required to evidence £900 for the main applicant and £600 for each dependant.
For the Tier 1 (Entrepreneur) category, the funds required will increase to £3,100 for the main applicant and £600 for each dependant when applying for initial entry clearance. However, if the migrant is applying to switch into this category from within the UK, the funds required will be £900.
Cooling Off Period
Employers who are intending to sponsor a migrant who already holds or has previously held Tier 2 status should be aware that a "cooling off" period of 12 months now applies and should seek legal advice before finalising any arrangements with the migrant.
During the cooling off period, Tier 2 migrants who have left the UK after 6 April 2012 will be ineligible to apply to return to the UK under any Tier 2 category, and migrants who have "switched" out of Tier 2 will be ineligible to "switch" their immigration permission back to Tier 2 whilst in the UK.
Students who worked as interns in the UK last summer and want to return to a graduate job with the same company are now temporarily exempt from cooling off rules until 31 October 2012.
To qualify for the temporary exemption, students must fulfil the following requirements:
1. Be sponsored by the same company they worked for as an intern in the summer of 2011.
2. Have previously been granted permission under Tier 2 (General) with that company for a temporary job lasting no more than four months as an intern or a summer associate.
3. Have completed a degree course within 18 months of their application.
4. Be returning to the UK on a graduate trainee scheme and be making a Tier 2 (General) application with a start date on the certificate of sponsorship of 31 October 2012 or before.
As this exemption is temporary, it will not be included in the Immigration Rules.
Route to Settlement
Employers of migrant workers will now have to confirm that the migrant is paid a minimum salary of at least £35,000 or the sum set out in the relevant UK Border Agency Code of Practice (whichever is higher) before the migrant can apply for settlement in the UK. This will affect all migrants who entered or switched into Tier 2 of the points-based system under the rules in force from 6 April 2011. It will therefore affect those who will be eligible to apply for settlement from April 2016.
The period of leave granted under Tier 2 (General) will be capped at a maximum of a total of six years. If eligible, the migrant will still be able to apply for settlement after five years (as now). Those who do not apply for or obtain settlement must leave the UK on expiry of their leave and wait 12 months before applying to return in any Tier 2 category (which will break continuity of leave for the purpose of applying for settlement). This will affect all migrants who entered Tier 2 of the points-based system after 6 April 2011.
Employers need to give immediate consideration to potential new hires that require Tier 2 sponsorship to ensure the role on offer is capable of sponsorship after 14 June 2012, when the higher skills threshold will come into effect. If the role will no longer be capable of sponsorship, the employer must move quickly to ensure the migrant's application can be filed on or before 13 June 2012.Copyright © 2013 by Morgan, Lewis & Bockius LLP. All Rights Reserved.