Changes to Tier 2 Immigration Rules Published

In the Statement of Changes to the Immigration Rules published on 3 November 2016 the Government announced some expected, and some unexpected, changes to Tier 2 applications. The main changes are set out below. The changes generally apply to applications made on or after 24 November 2016, but in some cases they apply to applications made using a Certificate of Sponsorship assigned on or after 24 November 2016. In all cases where a minimum salary requirement is amended, the applicant still needs to have been paid the appropriate rate for the individual job specified in Appendix J of the Immigration Rules.

All applications

• Reduction in grace period for overstayers: applicants will no longer be able to make an application in the 28 day period after their leave expires. Instead, in certain limited circumstances, they may be able to apply within the 14 days after their leave expired or within 14 days of the refusal of an earlier application.

This change is being made in many immigration categories. However, Tier 2 extension applicants will be particularly affected because of the cooling off period. It is more important than ever before to get the first application right, and apply in good time for an extension of leave.

• Time limits to respond to requests for additional information: in most cases where the Home Office ask for more information in respect of an application the time limit for a response will be 10 business days, rather than 28 calendar days.

Intra-Company Transfer Applications

• Skills Transfer: the subcategory is being abolished, as previously announced.
• Graduate Trainee: this subcategory is being expanded. Sponsors can now sponsor up to 20 Graduate Trainee applications in a financial year, rather than the current 5. The minimum salary is being reduced to £23,000.
• Short Term Staff: the minimum salary for Short Term Staff applications has risen from £24,800 to £30,000, except for those assigned a CoS in the category before 24 November 2016.
• Experience requirement: most applicants for ICT (Short Term Staff) and ICT (Long Term Staff) are required to have worked for the organisation for 12 months continuously prior to the date of application. Time spent in the UK on an ICT visa will no longer count towards this requirement.

Tier 2 (General) Applications

• Increase in minimum salary: the minimum salary has risen from £20,800 to £25,000. There are some exceptions where the minimum salary will remain £20,800:
  • Those who qualify as ‘new entrants’ will remain exempt. Generally this refers to those under 26, those recruited using a milkround and some of those who qualify to switch from study routes.
  • Certain public sector occupations: medical radiographers, paramedics, nurses and secondary school teachers in maths, physics, chemistry, computer science and Mandarin. This exemption will only apply where a Certificate of Sponsorship is assigned before 1 July 2019.
  • Those who have already entered the category on the basis of a Certificate of Sponsorship assigned before 24 November 2016.
• A Resident Labour Market Test is required for nurses: Although nurses remain on the Shortage Occupation List, their Sponsor will need to certify that they have done a Resident Labour Market Test. This applies to applications decided under the Tier 2 (General) Limit on or after 12 December 2016. This means that where an application for a Restricted Certificate of Sponsorship is made on or after 6 November 2016, a Resident Labour Market Test is needed.

Although this change removes one of the primary benefits of being on the Shortage Occupation List, two important benefits remain:

1. If the Tier 2 limit is reached in any month, nurses will score more points for their job than applications not on the list.
2. Nurses will not have to meet the minimum salary requirement (currently £35,000) for Indefinite Leave to Remain.

• Nurses must evidence their registration with the NMC: Nurses must also demonstrate evidence of their registration with the NMC. If they are not yet registered they must provide evidence having passed the CBT or having permission to undertake the ONP granted before 30 April 2015. Sponsors will need to certify that they intend to sponsor a non-registered nurse when they achieve full registration. Full registration needs to be attained within 8 months.
• Shortage Occupation List: some minor salary changes, but importantly where a job on the SOL requires a minimum level of experience (e.g. chefs), that person cannot qualify for new entrant salary rates.

Contact Our Business Immigration Barristers

For expert advice in relation to applying for a Sponsor Licence for your business or recruiting a skilled worker under Tier 2 of the points-based system, contact our business immigration barristers in London on 0203 617 9173 or via our online enquiry form.