UK: Migration Cap To Be Lifted For High Earners – New Rules

Last Updated: 16 February 2011
Article by Asma Bashir

The UK Border Agency has released their Statement of Intent today and will be placed before Parliament in mid March. We can therefore expect more detailed guidance in that period. However in the meantime, here is a summary of the main points announced today:-

Tier 2 (General)

Entry clearance applications will be subject to an annual limit of 20,700 from April 6 2011 as already published late last year. The limit will apply to a new 'restricted' CoS category, which includes those non-EEA migrants filling a UK job role. Therefore employers can expect going back to the old style work permit system, whereby each application for a new hire must be made to the UKBA before it is allocated to a migrant.

 For those migrants making in country applications for Tier 2 (General), including extensions and switching applications, they will not be affected by the caps. Additionally, applicants with salaries above £150,000 will be unaffected by the caps. An applicant for these types of applications will be granted an 'unrestricted' CoS that will not require permission from the UK Border Agency. It is expected that a 12 month allocation will be granted to sponsors as per the current rules for the 'unrestricted' category.

How  to obtain a valid, 'restricted', Certificate of Sponsorship for Tier 2 (General)

As explained above, the new rules will work like the old work permit system. The 20,700 limit will be divided over twelve months, with the greatest allocation of 4,200 places for the first month and 1,500 for the remaining months. Each company will be required to a request a certificate for a particular role. Each month the requests will be considered and ranked by the UK Border Agency based on points criteria. Those with the highest points will be prioritised.

Points will be awarded as follows:

  1. Shortage Occupation- 75 points
  2. Jobs at PHD level- 50 points
  3. Resident Labour Market test- 30 points

All applicants must have a minimum of 32 points and they must add the points they score for their salary level. Each applicant must meet the minimum applicable salary requirements to qualify, even if the role is on the Shortage Occupation list or is at PHD level. Jobs with an annual salary of £150,000 or more will not be required to undertake the RLMT, an increase from the current requirement of £130,000.

If a company's application is unsuccessful, due to the limits in one month, then they must re apply the following month. Applications by employers will not be rolled over. Being granted a CoS will not mean an automatic right of entry and all applicants must apply for entry clearance and meet the mandatory requirements of English Language and Maintenance.

Scoring points for entry clearance

Minimum skills criteria have been raised to Graduate level occupations. Moreover, points will no longer be awarded for the qualification of Tier 2 applicants because the skill level of their occupation verifies their attributes.

English language requirement is now raised from basic to intermediate. Points will therefore be awarded as follows:

  • Obtaining a valid CoS = 30 points
  • Being paid at minimum level = 20 points
  • English language = 10 points
  • Maintenance = 10 points

Total = 70 points

Tier 2 (ICT)

Whilst this category will fall under the 'unrestricted' CoS allocations, there are  restrictions for qualifying as an ICT migrant. Firstly, jobs must be on the Graduate Occupation list. Secondly, each applicant must have a minimum salary of £24,000 and applicants paid between £24,000 - £40,000 will be granted a maximum duration of one year. They will then be required to leave the UK for a 'cooling off period' of one year.

Applicants paid more than £40,000 will be permitted three years on entry clearance and will be permitted to extend for a further two years. Following the full five years, they will also be required to leave the UK for a 'cooling off period' of one year. Salaries may include allowances but accommodation remains capped at the current levels.

The most prominent change for this category is that no ICT applicants will be able to switch into Tier 2 (General) from 6 April. This does not apply to ICTs already in the UK before April 6 2011.

Advice to Sponsors

The government has made it clear that the new rules will apply from 6th April 2011 and any person making an application for entry clearance from that date will be subject to the new rules even if a certificate of sponsorship has been issued prior to that date. Our advice would therefore be to ensure that all applications for migrant workers are completed before 5th April 2011 to avoid the restrictions due to come into place after that date.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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