UKBA publishes Tier 2 “Statement of Intent”
As per the announcement given earlier regarding Tier 2 and the MAC’s list of “graduate occupations” has been followed by the Immigration Minister Damien Green’s statement yesterday as to the changes to be made in April of this year (2011).
Mr Green’s announcement is accompanied by a document entitled “Tier 2 of the Points Based System Statement of Intent, Transitional Measures and Indefinite Leave to Remain”.
The Statement of Intent states that a draft statement of changes in the Immigration Rules will be placed before Parliament in mid-March, at which time detailed guidance will be published for employers and for migrants. The reason for the publication of the document is to ensure minimum disruption to employers’ recruitment plans.
All of this happens in the wake of the Home Secretary’s announcement last November concerning the forthcoming permanent cap on Tiers 1 and 2, and her intention to ensure that Tier 2 jobs are all “graduate occupations”. It is the first major upheaval in the structure of immigration control to have been brought in by the Coalition government.
Some of the forthcoming changes are to all Tier 2 applications. First of all every Tier 2 job will be a graduate occupation – the statement of intent includes a list of all such jobs at its Appendix A. This is the product of the analysis carried out by the Migration Advisory Committee (the MAC) and explained (at length) in its Analysis of the Points Based System – list of occupations skilled to NQF level 4 and above for Tier 2.
The position for those whose jobs are in the list of Shortage Occupations is slightly less clear. The intention appears to be to prune the Shortage Occupations list so that no non-graduate level occupations remain – but the Statement of Intent says:
“The MAC is also reviewing whether those jobs currently on the Shortage Occupation List, but not on the new Graduate Occupations List, should be retained on the Shortage Occupation List, where some positions may in effect skilled at the appropriate level.” [sic]
– which would seem to suggest that some non-graduate level jobs may in fact remain on the Shortage Occupations list.
The question “How should the current Shortage Occupation Lists for the UK and Scotland be revised to remove jobs below graduate level?” was the second of the two questions the MAC was asked to answer in December 2010. But their Analysis left this unanswered – according to the UKBA’s Statement of Intent the requested recommendations will be provided by the MAC and the UKBA will respond to them “before 6 April”. Also all Tier 2 General applicants will have to demonstrate their competence in English language at level B1 of the Common European Framework of Reference for languages. This is a fairly demanding test of oral and textual communications skills in English.
Finally the methodology whereby the necessary points for attributes will be scored will be changed. Significantly no points will be available anymore for an individual’s qualifications – and no one whose job will earn them less than £20,000 will be able to get sufficient points.
For those Tier 2 (General) applications which are affected by the permanent cap the presaged changes will introduce a primary stage in the process whereby someone can come to the UK to do a particular job. Currently employers – or more precisely those employers who are Tier 2 licensed sponsors – issue certificates of sponsorship to aspiring Tier 2 Migrants, and armed with such a certificate the applicant applies for entry clearance.
From 6 April however sponsors will have to check the UKBA’s published guidance to see whether the post they wish to fill falls within the Restricted (i.e. subject to the cap) or Unrestricted category. If it is a restricted post sponsors will have to apply to the UKBA for a restricted Certificate of Sponsorship. This is a separate and new application procedure, under which sponsors will have to confirm that the job they wish to fill is included in the UKBA’s published list of “graduate occupations”, that the job is either on the UKBA’s list of Shortage Occupations or that they have conducted a Resident Labour Market Test, and finally that the salary provided will be consistent with the particular minimum salary requirements.
What is this “Restricted” category?
Anyone applying from outside the UK for entry clearance as a Tier 2 General migrant will come within the restricted category, unless the job they are going to do has a salary of £150,000 or more per annum. It’s easier to classify those to whom it doesn’t apply. In addition to entry clearance applicants whose jobs are worth more than £150,000 these are:
• Tier 2 Intra Company Transfer Migrants
• Anyone applying in the UK for leave to remain in Tier 2 General, whether they already have leave to remain in that capacity or in another category of stay
• Anyone affected by the transitional provisions contained in the Statement of Intent
Certificates of Sponsorship for the restricted category will be awarded on a monthly basis – and in accordance with the limit announced on December only 20,700 such certificates will be issued over the year. In order to meet early demand 4,200 certificates will be available in the first month – April 2011. Thereafter the certificates will be limited to 1,500 per month.
How will the UKBA decide which Sponsor to give the limited number of certificates of sponsorship to each month? This will be decided on the application of a scale under which jobs requiring employees who have PhDs will be weighted favorably, as will those commanding large salaries.
Any unsuccessful sponsor will have to reapply for a certificate of sponsorship the following month.
Intra Company Transfers
As indicated above – from April 2011 all Tier 2 Intra Company Transfers will have to be for jobs in the Graduate Occupations list.
The second change for Intra Company Transfers is concerned with how much leave to enter the UK they will get. This will be linked to the salary their job will command. People whose salaries are to be between £24,000 and £40,000 will only be granted leave for 12 months. People whose salaries exceed £40,000 will be granted 3 years’ leave and may apply to extend it up to a maximum of two further years. At the end of their permitted maximum periods of leave to remain Tier 2 (Intra Company Transfer) Migrants will have to leave the UK, and won’t be able to reapply in the same category until a period of 12 months has elapsed. The existing Graduate Trainee and Skills Transfer sub categories of the Tier 2 (Intra Company Transfer) will remain.
Tier 1 and Tier 2 Transitional Provisions
As we reported on 21 December 2010, the Tier 1 General category was closed to entry clearance applicants from December 23 2011. However it is and will remain open for people who already have leave to remain as a Tier 1 General Migrant to apply within the UK to extend their leave to remain.
From 6 April 2011 it won’t be possible for people who don’t currently have Tier 1 (General) leave to remain to switch into that category. This restriction will apply to people who have leave to enter or remain as a Tier 1 (Post Study Work) Migrant – although those people will be able to apply to switch into Tier 2 (General) – without being subject to the restricted certificate of sponsorship regime. Furthermore Tier 1 (Post Study Work) Migrants will be able to apply to switch into Tier 2 without having to satisfy a Resident Labour Market Test – provided that they have had leave to enter or remain as a Tier 1 (Post Study Work) Migrant for six months or more.
Transitional arrangements for people who are currently Tier 2 migrants or work permit holders will protect them from the new requirements (the requirement to be in a graduate level occupation, to have English language at the raised level, and to earn at least £20,000 per annum). The same protection will apply to anyone granted entry clearance as a Tier 2 Migrant (General or Intra Company Transfer) before 6 April 2011.
Indefinite leave to remain
The Statement of Intent says that the Immigration Rules introduced in April will contain an “income requirement” for Tier 1 (General), Tier 2 (General) and Work Permit holders applying for indefinite leave to remain. They’ll need to show that they have continued to undertake skilled or highly skilled work. The actual stipulation is not disclosed in the Statement of Intent. This seems to be the realisation of the Immigration Minister’s complaint from October of 2010 that highly skilled migrants weren’t doing highly skilled jobs.
Tier 2 General Migrants and Work permit holders will have to show that they are being paid the salary appropriate to their occupation. There will also be a more demanding Life in the UK test for applicants for indefinite leave to remain.
Finally the Statement of Intent indicates that all applicants for settlement will have to have no unspent criminal convictions in order to be granted indefinite leave to remain, as is already the case with applications for naturalisation as British citizens.
The Statement of Intent opens with the assurance that draft Immigration Rules and detailed guidance will be laid before Parliament in mid-March. That assurance is a reference to the difficulties the UKBA has had during the latter part of 2010 regarding the insertion of the criteria for leave to enter or remain into “Policy Guidance” rather than into the Immigration Rules themselves. Parliament is going to have a great deal of material to scrutinise.
It would appear that the April Immigration Rules may well mark the point at which the points based system either falters or emerges scarred but surviving. Either way it seems clear that the system is continuing to become increasingly complicated – with subcategories emerging within subcategories.
Making sense of the new requirements so that applications can be sure to meet them, and ensuring that the benefits of complex transitional arrangements are not missed, is likely even more than before to require professional assistance and representation.
For professional legal advice on immigration or work permit in the UK, contact the Gherson team.
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