UK: Statement Of Intent Published For Tier 2 - 16 February 2011

Last Updated: 22 February 2011
Article by Caron Pope, Deirdre Murphy and Siobhan Owers

An annual quota of 20,700 Certificates of Sponsorship (CoS) for Tier 2 (General) migrants and 1,000 Tier 1 (Exceptional Talent) migrants will commence on 6 April 2011 until April 2012.  While detailed immigration rules and formal guidance will not be published until mid March, this Statement of Intent represents the Governments current plans and they are unlikely to change.

The Statement of Intent can be read in full by clicking here.

This Law Now summarises the key changes for Sponsors and employees including;

  • Who is covered by the quota?
  • How the quota will work in practice
  • Restricted and Unrestricted Certificates of Sponsorship

Who does the quota apply to?

  • Tier 2 (General) migrants i.e. "new hires" who are coming to the UK from overseas.

Who is exempt from the quota?

  • Intra Company Transfers ("ICTs") – employees with at least 12 months experience with the group overseas
  • Tier 2 migrants extending their stay with their current employer
  • Tier 2 migrants switching to a new employer.  However, for those coming to the UK after 6 April 2011, the in-country exemption will only apply to Tier 2 (General) migrants as Tier 2 (ICT) migrants will not be permitted to switch in-country to Tier 2 (General).

Example:

Employee has a CoS with Sponsor A under Tier 2 (ICT) granted May 2011.  In September  2011 he wishes to move to Sponsor B which requires a Tier 2 (General) permission.  He  cannot switch while he is in the UK.  He will have to leave the UK to apply from overseas and will therefore be subject to the quota (unless exempt because of salary).

  • Those admitted in another immigration category e.g. Tier 1 (General), Tier 4 (General) i.e. (student), Tier 1 (Post study work).
  • Those earning salary of at least £150,000.  Please note that the Resident Labour Market Test ("RLMT") will not be required for these applications.

How will this quota system work in practice?

Certificates of Sponsorship will be divided in to 2 categories;

1. Unrestricted CoS

All CoS which fall outside the quota will be classified as "unrestricted".  Sponsors will shortly be contacted, as under the current system, by the UKBA to request an initial allocation of unrestricted CoS which will then be shown on the Sponsor Management System.  There will be an ability to request additional CoS during the course of the year.

2. Restricted CoS – Tier 2 (General)

These are CoS which fall within the quota.

Unlike the current system, a Sponsor will not have a number of restricted CoS allocated to it.  Instead it will apply for one of the monthly allocations along with all other UK Sponsors.  

How many restricted CoS will be available each month?

4,200 in April 2011 and approximately 1500 per month thereafter (depending on demand).

How will Sponsors apply for a restricted CoS?

The Sponsor's application for a restricted CoS (no limit on how many it can request in any one month) must be submitted by an agreed date each month.  We understand that the "application request" will be on-line via the Sponsor Management System.

The UKBA will consider the application request against the ranking criteria based on whether it is a

  • shortage occupation;
  • PhD level post and a RLMT undertaken;
  • RLMT has been undertaken; and
  • the level of salary on offer for the role in the UK.

Please refer to the points table in the Statement of Intent

What will happen where the application requests exceeds the quota level?

The UKBA will award a CoS to all applications with sufficient points to place them above the threshold.  A minimum of 32 points will be required.  The Sponsor can then assign a CoS to the migrant – this must be done within 3 months.

If an application is unsuccessful the Sponsor will have to reapply the following month.

Once the system has been in operation we will have more clarity about which types of applications/roles/salary thresholds are likely to qualify, although there may be slight monthly variations. 

Changes to Tier 2 (Intra Company Transfers)

While Tier 2 ICTs have fallen outside of the permit quota, the UKBA will make a distinction between CoS depending on the length of the assignment.

Short term ICTs

  • This is for assignees transferring for 12 months or less.  They must be paid at least £24,000.
  • Short term ICTs cannot extend for any further period of time while in the UK and will not be permitted to return to the UK again as short term ICT until they have spent 12 months outside the UK.  
  • A short term ICT may return to the UK as a long term ICT provided salary is over £40,000.

It is therefore essential that a decision is made at the outset about the likely duration of an assignment so that an application is filed under the correct category.

Long-term ICT

  • A CoS will only be issued for more than 12 months where the UK salary is in excess of £40,000. 
  • They may apply for a limited period of 3 years and then may extend for 2 years.
  • A long-term ICT may spend no more than 5 years in total in the UK with no possibility of extending. 
  • At the end of the 5 years, the migrant cannot return to the UK as an ICT for at least 12 months.  

Example

Jo Bloggs is transferred from the US to the UK as a Tier 2 (ICT) for 12 months in May 2011.  He is paid a salary of £39,000.  

In April 2012, the company decide they need him here for a further 2 years.  The company cannot extend him in the UK beyond 12 months as he came in as a short term ICT and his salary is below £40,000.  

The company cannot send him back to the US to then return to the UK as a short term ICT for a further 12 months (January 2013).

He will be able to return to the UK as a long term ICT in May 2012 only if his salary is increased to over £40,000.  

What about Tier 2 (ICT) migrants already in the UK?

These new rules will not be applied to them.

What should Sponsors be doing now?

Sponsors should focus on the following:

  • communicating these changes to the business. 
  • identifying  migrants who may be impacted by the  April changes and whose applications should therefore be filed sooner e.g. long term ICTs ( more than 12 months ) who will earn less £40 000 in the UK.
  • using any remaining Tier 2 (General) allocations.
  • ensuring that any RLMTs are concluded in the next few days for any Tier 2 ( General ) migrants that they wish to submit applications for in the first monthly quota in April.
  • assessing how many unrestricted Certificates of Sponsorship they will require from April 2011 to April 2012.

With regard to restricted CoS, there is nothing that a Sponsor with a zero Tier 2 (General) allocation left can do until the request for allocation process is opened on 16 March.  However Sponsors must ensure that RLMT has been completed making the first request for an unrestricted CoS.  This may impact on timings.

Example

Proposed start date of 1 May 2011 for new recruit who requires Tier 2 (General) under the quota.

1st Allocation of Restricted CoS  - likely to be issued early April and request for restricted CoS must be submitted from 16 March.

RLMT – must run for at least 28 days with sufficient time to consider applications.  Therefore, unless the RLMT advertising has been started by now it is unlikely the Sponsor will be able to apply under the April quota.

Transitional provisions for migrants already in the UK

The Statement of Intent confirms that the new requirements will not apply to applicants who apply before 6 April 2011. 

For entry clearance applications, an application is treated as having been submitted when the fee is paid and for in-country applications on the date of posting.

Applications must therefore be submitted by 5 April 2011 to be treated under the old rules.  For migrants applying close to this cut off date and who may receive a visa after this date, it is essential that they retain evidence of when the application was submitted to show that the post 6 April 2011 rules should not apply to them – for example biometric receipt/evidence of date of posting.

Good news for graduate recruiters!

  • Tier 1 (Post Study) workers can switch to Tier 2 (General) from within the UK.

    In addition there will be no RLMT required where they have been in post for 6 months or more with the Sponsors.
  • Tier 4 (General) will be permitted to switch in to Tier 2 (General).  They will therefore also fall outside the quota provided they file from within the UK before their visa expires.

New rules on settlement

Very general details are provided in the Statement of Intent on the new rules for settlement.  The proposal most likely to cause issues in that:-

  • Tier 2 migrants must receive the salary specified in the relevant code of practice (i.e. minimum market rate) and the level stipulated when they were last granted leave.

    This may cause issues where a migrant has taken a salary reduction due to flexible working hours, agreed a reduction in hours due to paternity/maternity leave or where overall remuneration is dependent on profit share. 

Conclusion

The Government has thankfully listened to the concerns of business over the last few months and the framework that has been announced is far more business friendly than we had anticipated when the quota system was first introduced last July.  We have particularly welcomed the confirmation that Intra Company Transfers and "switching" applications will be permitted for migrants already in the UK in another category.
 
The next few months are definitely going to be challenging for employers seeking to bring in workers from outside the EU.  As the new system is rolled out we will be able to gauge the minimum salary thresholds needed to qualify under the quota and the timelines required to recruit migrant workers.  While there will undoubtedly be issues to be addressed from some quarters, the UK clearly remains " open for business ".

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 17/02/2011.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.