We have recently reported on the government's interim limits on non-EEA economic migration under the Tier 1 and Tier 2 of the points based system and we have also emphasised the importance of responding to the government's consultation document in our previous article.

We now report on how the interim measures have resulted in increased anxiety amongst sponsors and confusion as to their ability to continue to employ migrant workers in the UK once their leave expires. As a result many sponsors are finding themselves questioning their position in terms of employment legislation, especially in light of a reported case last year, Osbourne Clarke Services v Mr A Purohit. Sponsors should not terminate employment of a migrant worker on the basis of zero allocation without first seeking legal guidance.

Employers should also consider making an application for an additional certificate of sponsorship (CoS) allocation under the exceptional consideration procedure. UKBA has provided guidance to sponsors on how to make such an application on their website.

Process for Urgent exceptional CoS allocation

Sponsors are required to complete a specific application form and explain why a certificate of sponsorship is required. Although UKBA has reserved an emergency pool of sponsorship certificates for exceptional circumstances, there is no guarantee that a request for an extra certificate will be granted. UKBA has formed a panel to review the requests for additional allocations on the first working day of every month (with the first meeting due to take place on 1 September) and make decisions on the evidence provided. The requests will be ranked as follows:-

  1. A Work Permit or Tier 2 (General) extension for an existing sponsor; 
  2. A Work Permit or Tier 2 (General) extension for a new sponsor; 
  3. A new shortage occupation post for an existing sponsor; 
  4. A new shortage occupation post for a new sponsor; 
  5. A non-shortage occupation post for an existing sponsor; 
  6. A non-shortage occupation post for a new sponsor

The panel will notify employers of whether they have been granted additional allocations within five working days of the panel meeting. There is no appeal or review process for requests for additional allocations, although the request can be resubmitted for consideration in the following month.

Making strong representations for a CoS allocation

It is highly recommended that sponsors put together a robust case to maximise the prospect of receiving a positive decision. For example, where a migrant has been working on a specific project while employed under the Post Study Worker category, it is possible that an employer may find it difficult to find a replacement or recruit a new employee who would require training before they could work on the same project. In such circumstances, sponsors should explain the nature of the project, the migrant's key skills and the importance of the person's continued employment with the company. In the event that a request for an additional CoS allocation is refused, sponsors can consider the option of making an application to the High Court for judicial review.

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.