Changes to Tier 2 immigration rules from November 2014Print publication
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Why is this important?
For employers who hold a Sponsorship Licence, getting it wrong could result in the revocation of that Licence and a curtailment on their ability to recruit overseas workers. For these reasons, it is essential that such employers remain up to date with the rules and any changes made to them. It is advisable to appoint someone (usually within HR) to take the lead on compliance in this area as the rules can be complex and subject to change.
What is Tier 2?
Under Tier 2 of what is known as the ‘points-based system’, UK businesses can sponsor non-EEA nationals to fulfil a skilled job in the UK provided that certain criteria are met. There are two sub-categories of Tier 2 which UK employers will typically use. These are as follows:
- Tier 2 (Intra-company transfer) (ICT) which permits companies to transfer overseas employees to the UK on a temporary basis.
- Tier 2 (General) which permits employers to engage non-EEA nationals in a permanent role in the UK.
What are the key changes to Tier 2?
- The job vacancy that the employer wishes to fill (as recorded by the Certificate of Sponsorship) must be ‘genuine’ and must not have been created for a particular individual non-EEA national. Whilst this has always been included in the guidance it will now become a compulsory requirement of the immigration rules. Accordingly, the Home Office may refuse an application if it believes that the vacancy is not genuine or has been created for a particular migrant worker. Applications may also be refused if the Home Office believes that the job has been exaggerated to meet the Tier 2 skills threshold.
- With regard to Tier 2 (General) migrants, the application may be refused if the entry clearance official has reasonable grounds to believe that the job in question has been ‘tailored’ with the effect of excluding UK resident workers from being suitable or that the job requirements are not appropriate to the vacancy.
- Similarly, the application may be refused if the entry clearance officer believes that the applicant is not appropriately qualified for the job.
- A Certificate of Sponsorship will not be awarded to enable a migrant worker to fulfil a role or provide an ongoing service to a third party who is not the sponsor, even on a temporary basis. This is most likely to apply to situations where a migrant worker is sponsored to work in the UK by an employment agency. Under the new rules, the agency will no longer be able to place the worker to fulfil a role with a client even on a temporary basis.
- The Tier 2 (General) extension rules are being amended to enable migrants working under this category to benefit from the exemption from the Resident Labour Market Test even if their previous immigration permission as a Tier 2 (General) migrant has expired as long as the extension application is made within 28 days of their immigration permission expiring.
- The current provision waiving the £20,500 minimum salary threshold for Tier 2 (General) migrant workers where the employer is reducing workforce hours to avoid redundancies will be removed.
- Applications for Tier 2 (ICT) will be required to prove that the vacancy is genuine, and applications may be refused where grounds exist to make the Home Office suspect otherwise. Similarly, applications may be refused if it is felt that the applicant is not appropriately qualified to do the job.
Addressing any perceived loopholes within the current immigration system remains a political ‘hot potato’ and these ‘tightening up’ amendments to the Tier 2 rules are therefore unsurprising. While the spirit of the changes is in keeping with the current position, it seems that the Home Office will be doing more to check that applications are genuine and are being made in good faith.
Walker Morris has a dedicated business immigration team lead by Associate, Shabana Muneer. If you have any queries on these changes or more generally in relation to business immigration please contact Shabana.