On 6th April the UK Border Agency (UKBA) introduced changes to the Tier 2 immigration rules that will affect UK employers (and applicants.) These changes apply to all new, extension or settlement Tier 2 visa applications which use Certificates of Sponsorship (COS) assigned by sponsors. The new rules should not affect existing Tier 2 sponsored employees immediately, but may impact on future extension applications, especially in relation to minimum salaries and UKBA visa fees.
Among the changes taking effect are:-
- adjustments to calculating the ‘cooling off’ period;
- a tiered approach to minimum salary requirements for Tier 2 workers;
- maintenance funds, overdrafts are no longer permissible as ‘available funds;’
- a revised Shortage Occupation List that contains a greater number of engineering occupations;
- a more flexible labor market testing system;
- and eased English-language and re-entry restrictions for highly-paid intra-company transferees.
The ‘cooling off’ period was introduced by the UKBA in April 2012. Any Tier 2 migrant whose visa was cancelled/expired and who had left the UK not having made a fresh in-country application, would be subject to a 12-month ban from making an application to reapply under this category. The beginning of the ‘cooling off’ period initially ran from the visa expiry: however this has been changed to run from the date on which the migrant left the country. Therefore, migrants are advised to ensure visa stamps are clear and legible and to retain boarding passes and airline tickets.
Previously, migrants relied on the UKBA to curtail their leave once notification had been sent by the employer confirming an end to their sponsorship via the sponsor management system. In practice, this process was lengthy and relied on the UKBA taking proactive steps to curtail the migrant’s leave. To do this, the migrant’s passport was required: not possible when the migrant was already abroad.
This change will require migrants to prove when they left the UK and that they remained outside the UK. Providing this test is satisfied, the cooling-off period will run from the date they can evidence departure. This is a welcome change not just for migrants but their employers also, creating flexibility in planning future UK employment.
A further change means that the “cooling off period” will no longer apply to Tier 2 migrants being sponsored in a job with a salary of £152,100 a year or more.
Post Study Work
The previous Rules requiring Tier 1 (PSWs) to have existing valid leave and to have graduated during a period of continuous leave which included their current grant of leave, now permit switching into Tier 2 within 28 days after the expiry of their Tier 1 leave. This brings Tier 1 (PSW) applicants in line with the policy on overstayers.
The changes also clarify that undergraduate Masters degrees are eligible under the provisions as well as postgraduate Masters degrees.
Additional Tier 1 visas will become available to foreign MBA graduates who intend to start businesses in the UK. Foreign PhD graduates of UK educational institutions will be permitted to remain in the country for up to 12 months after the completion of their studies to seek employment or start businesses in the UK
New Standard Occupational Classification Codes and Job Descriptions
Sponsors wanting to know the minimum salary for a particular UK role must also check the Code of Practice for Skilled Workers, as the rates in the Code will override the Tier 2 minimum rates. Although the skill level for new Tier 2 roles remains at NQF level 6, the job-specific minimum salaries have also changed on 6 April, as they are currently based on data from 2000. The changes will have the following impact:
All the SOC Codes will be listed in a new single Code of Practice, rather than in multiple industry codes, which should make it easier for employers to use. For each job, there will be a distinction between “New Entrants” and “Experienced Workers”. Minimum salaries will be higher for Experienced Workers than for New Entrants.
A “New Entrant” includes graduates switching in-country from Tier 4 to Tier 2 and all migrants aged 25 or under (wherever they are applying from) on the date of their initial Tier 2 application. In each case, to qualify as a New Entrant, the migrant must not be applying to extend their total stay in Tier 2 and/or as a work permit holder beyond 3 years and 1 month.
Everyone else will be an Experienced Worker, with a significantly higher minimum salary level than New Entrants. Depending on the role, the Experienced Worker rate may also be higher than current salary rates.
The list of occupations skilled to National Qualifications Framework (NQF) level 6, which is the minimum (graduate) skills level required for Tier 2 applicants, has been updated from SOC 2000 using the new SOC 2010 system. It is important to note that there will be no changes made to the skills threshold for Tier 2 and the list is merely being updated in line with the new coding system.
Shortage Occupation List
The Shortage Occupation List –those jobs employers can fill with non-EU nationals without having to complete a resident labor market test – will feature more engineering occupations but fewer health industry jobs. Overall, the changes will result in a net reduction in shortage occupations as a percentage of the UK’s overall workforce.
To improve flexibility, the UKBA is adjusting the permitted changes to a Tier 2 migrant’s salary that may be made without requiring a fresh application. The changes now permit reductions in salary as well as increases, provided the salary does not fall below the appropriate rate for the occupation or any overall salary threshold which applies to the applicant.
These changes apply in addition to the existing provisions for maternity, paternity or adoption leave, long-term sick leave, and company-wide reductions in pay to avoid redundancies. Tier 2 workers will be subject to a two-level minimum salary requirement, with less experienced workers – designated as “new entrants” – subject to a lower minimum salary threshold than more established staff members.
For example, under the new system, the minimum salary for programmers and software development professionals will be £24,000 for a new entrant and £29,800 for an experienced worker. In addition, minimum salary requirements for all Tier 2 categories will be increased by approximately 1.4%.
What will come as un-welcome news to Tier 2 Sponsors are the planned increases to the minimum salary thresholds for Tier 2, which must be met before a non-EEA national can be assigned a Certificate of Sponsorship.
Applicants’ pay must meet not only the relevant minimum salary threshold, but also the appropriate rate as determined by the relevant Code of Practice. However, the appropriate salary rates specified in the Codes of Practice have also been changed as per the following summary.
In light of this, we advise Tier 2 Sponsors and migrants to review their salary arrangements up to six months in advance of applying for settlement or extensions.
RLMT – Advertising
There are also changes to the RLMT (advertising the role to the resident workforce). With some exceptions, sponsors must conduct a RLMT before issuing a Tier 2 General COS. From 6 April:
The rules on where adverts must be posted will be relaxed. The SOC Codes will no longer specify acceptable websites for each job – there will just be general principles for sponsors to follow. While this gives extra flexibility, employers will need to take care to ensure that they still meet the advertising requirements.
Where the RLMT applies, the role must always be advertised in two different places. This is a change to the current requirement for higher earners where only one advert need be placed. Where the annual salary is under £71,000 one of these places must be Jobcentre Plus (as currently). Where the annual salary is £71,000 or more, the employer will be able to choose two places to advertise – for example two different recruitment websites.
The substantive rules concerning labor market tests will largely remain unchanged. However, vacancies for jobs paid between £71,000 and £152,100 will have to be advertised in at least two media outlets. Currently, they only need to be advertised in one.
Sponsors should note that, if they undertake the Resident Labour Market test (i.e., advertise a role) prior to 6 April 2013, they are not required to re-advertise the role in accordance with the new criteria after 6 April. However, if the certificate is assigned after 6 April, the sponsor will be required to pay the higher salary threshold as referred to above.
Increased Fees…some things never change – still going up!
From 6 April the UKBA will increase the majority of visa fees by 3% (see the full list at Fee Table). There are also some specific additional fee increases:
The current discount on visa fees for dependants applying inside the UK will reduce from 50% of the main applicant’s fee to 25% of that fee.
In due course the discount will be removed altogether, so that the visa fee for each family member will be the same as for the main applicant (this is already the case for overseas applications).
The Tier 2 Priority Postal Service route will now attract a £275 priority service fee in addition to the usual postal visa fee.
A £100 deposit will be introduced when booking fast-track appointments. This is to guard against slots being cancelled at the last minute (and to prevent the block-booking of slots for re-sale!)