New rules for employers taking on Tier 2 (General) migrants from outside the European Economic Area

Article date: 05.04.11

* Employers hiring Tier 2 (General) migrants from outside the European Economic Area (EEA) are working to new rules from 6 April, which will make it harder for them to recruit workers than before.

As before, a migrant worker from outside the EEA (the European Union countries and Iceland, Liechtenstein and Norway) or Switzerland can only apply to come to the UK to work if they are sponsored by an organisation in the UK that wishes to employ them. Sponsors must be licensed by the UK Border Agency, and can then assign a Certificate of Sponsorship to prospective non-EEA employees.

Major change
However, there is a major change in relation to Certificates of Sponsorship for migrants in the Tier 2 (General) category - the route into the UK for skilled workers who have received a job offer from a UK employer.

Under the old rules each sponsor asked the UK Border Agency for however many Certificates of Sponsorship it wanted for each immigration category each year, including the Tier 2 (General) category. It was then given an annual allocation, which it could then assign to migrants who scored sufficient points under the entry criteria. The same rules will continue to apply to what are now called ‘unrestricted’ Certificates of Sponsorship for Tier 2 (General) migrants if:

  • Their annual salary will be £150,000 or more.
  • Leave had already been granted to them, on or before 5 April 2011, to work in the UK under Tier 2 (General) or as Work Permit holders and they either want to extend their stay, or to change jobs and start work for a new sponsor.
  • They are moving from another company in the same group – an intra-company transfer (although there are other changes to the rules governing intra-company transfers).
  • They were already in the UK on 5 April 2011 under another immigration category and are eligible to switch into Tier 2 (General).

20,700 limit on ‘restrictive’ Certificates
However, there is an important change for Certificates of Sponsorship (called ‘restrictive’ Certificates) for migrants:

  • whose job will pay less than £150,000 per year;
  • who do not already have the right to live and work in the UK; and
  • who apply from overseas for a Tier 2 (General) visa.

The change is that the total number of these Certificates is restricted to 20,700 for the year from 6 April 2011 to 5 April 2012.

Process
The process for obtaining a restricted Certificate is different too. Only A-rated sponsors may apply, and there is no annual allocation of restricted Certificates. Instead, the limit is broken down into a monthly allocation (4,200 in the first month and then 1500 per month thereafter – although there is provision for unallocated Certificates to be carried forward in some circumstances). Sponsors apply for restricted Certificates for each specific job from the monthly allocation by following the ‘restricted application process’. The application must be made using a secure electronic application form, up to three months before the start of the relevant month (which means that the first applications started from 16 March 2011). Applications must be made before the end of the 5th of each month.

As well as scoring the minimum 32 points required under the entry criteria, sponsors must confirm in the application that the job is either a ‘shortage occupation’ (occupations for which there are not enough local workers, as set out in a list published by the UK Border Agency from time to time) or (unless an exemption applies) that they have carried out a resident labour market test – that is, tried to find a local worker to do the job. It must also be a graduate level job that pays over £20,000 per year.

If there are too many applications in a particular month, jobs within shortage occupations are prioritised, as are those requiring higher qualifications and paying higher salaries. Failed applications are not carried forward. The UK Border Agency decides which have succeeded and which have failed on the 11th of each month, and notifies applicants within five days. If successful, employers have three months within which to assign the Certificate to a migrant.

Issues for employers
The system introduces uncertainty for both employers and migrants. Whether an application is successful can depend on how many other applications are also being made that month, and the number of points scored. Neither will know if an application is successful until the middle of the relevant month. The criteria for deciding between competing applications does not directly take into account the importance of the job to the employer, or the level of skill and experience required (although the latter are often are reflected in a migrant’s qualifications and salary). The importance of salary as a criterion could also mean that lower-paying industries or regions lose out to higher-paying ones.

There are also a range of other changes taking effect – for example, in relation to intra-company transfers of migrants, entry into the UK for entrepreneurs, investors and migrants with ‘exceptional talent’, the rights of non-EEA students to work in the UK after their studies are over, and new fees.

Recommendation

  • Sponsors should review their employment needs and, if appropriate, procedures to determine how they handle recruitment of Tier 2 (General) migrants requiring an unrestricted Certificate.
  • If in doubt, take specialist legal advice.

* This is not legal advice; it is intended to provide information of general interest about current legal issues.