Personal Immigration

New Tier 2 (General) Rules to ease the burden for Students and Researchers

A Statement of Changes to the Immigration Rules (HC309) was announced in early December 2017. There will be several significant changes to the Tier 2 (General) category, to be effective from 11 January 2018.

A more lenient approach towards Tier 4 (General) Students switching to Tier 2 (General)

Paragraph 6A.22 of the Statement of Changes substitutes paragraph 245HD(d)(i) with:

“(i) The applicant must have completed:

(1) a course leading to a UK recognised bachelor’s or master’s degree (not a qualification of equivalent level which is not a degree)

(2) a course leading to a UK Postgraduate Certificate in Education or Professional Graduate Diploma of Education (not a qualification of equivalent level), or

(3) a minimum of 12 months study in the UK towards a UK PhD.”

Paragraph 6A.23 of the Statement of Changes substitutes paragraph 245HD(d)(vii)(4) with:

“(4) the date they completed the course, having sat all exams and presented all academic papers (or the date of award in the case of a degree certificate), unless they are studying a PhD course Page 15 of 73 in which case confirmation of 12 months study is required.”

The current provision under paragraph 245HD (d)(i) and (vii)(4) requires that (non-PhD) students must have received their final results i.e. the date of course completion and pass (or the date of award in the case of a degree certificate) in order to switch to the Tier 2 (General) category in-country. This new provision enables Tier 4 (General) Students to apply to switch (in-country) to Tier 2 (General) upon completion of their courses, without having to wait to obtain their degree certificates.

RLMT exemptions for selected researchers

Paragraph A17 of the Statement of Changes substitutes paragraph 78C with:

“The Resident Labour Market Test exemption also applies if one of the requirements from (a) to (g) is met and the Certificate of Sponsorship Checking Service entry provides full details of why an exemption applies”.

Paragraph A18 of the Statement of Changes substitutes paragraph 78C(b) with:

“(b) the job offer must be in a supernumerary research position, where the applicant has been granted a scientific research Award or Fellowship either:

(i) by a third party organisation, and the Award or Fellowship cannot be transferred to anyone else; or

(ii) by the Sponsor if the following requirements are met:

(1) the applicant has been selected through a competitive process on the basis of their own research proposal; and

(2) the funding of the research is secured in an agreement between the Sponsor and a third party organisation, which includes objectively justified requirements that effectively prohibit any settled worker from undertaking the role.

This exemption continues to apply after the relevant third party funding has ended, as long as the applicant is being sponsored to continue to undertake the same research; or”

Paragraph A19 of the Statement of Changes substitutes paragraph 78C(f) with:

“(f) the job offer must be to continue working as a member of an existing research team and:

(i) the Sponsor is a Higher Education Institution or a Research Council, and

(ii) the applicant has previously worked with the lead researcher as part of their team for a continuous 12 month period immediately before the date of the application (or for 12 months during the 24 months immediately before the date of the application, if the applicant has been on maternity leave, paternity leave, shared parental leave, adoption leave or long term sick leave during that time); or

(g) the job offer meets the requirements set out in paragraph 77B(d) of this Appendix.”

These new provisions will enable RLMT exemptions for recipients of supernumerary research awards and fellowships sponsored by the awarding organisation, provided that that the applicant has been selected on the basis of his or her proposal and that the research funding agreement between the Sponsor and third party sets out objective requirements which prevent settled workers’ eligibility for the role. It also exempts research team members who are sponsored by a Higher Education Institution or Research Council.

The 28-day limit

Paragraph 9.8 of the Statement of Changes inserts before paragraph 323AA(a) :

“(za) If a migrant is a Tier 2 (General) Migrant, their start date is changed to a date more than 28 days from either of the following, whichever is later:

(i) the date on which their entry clearance or leave to remain is granted; or

(ii) the start date as stated on their Certificate of Sponsorship, taking into account any changes to the start date that have been properly reported by his employer before the date on which entry clearance or leave to remain is granted.”

This essentially means that the start date for employment cannot be pushed back by longer than 28 days following the grant of entry clearance, leave to remain or the start date as stated on the Certificate of Sponsorship.

A positive change in eligibility for Indefinite Leave to Remain

Another quite interesting change to note is that paragraph 6A.4 of the Statement of Changes states that paragraph 245AAA(b) will be deleted.

Paragraph 245AAA(b) states that those who have had a break of more than 60 days between one job and the other cannot apply for Indefinite Leave to remain after 5 years. This has created much difficulty for Tier 2 (General) Migrants who have been unable to apply for ILR after five years and have instead found themselves having to leave the UK after their 6 years maximum leave. This new change will make it significantly easier for Tier 2 (General) Migrants to apply for indefinite leave to remain after 5 years.

Overall, the changes to be introduced to the Tier 2 (General) category will benefit students and researchers. Perhaps this move is an effort to silence the recent backlash against the Home Office for keeping the international talent pool of graduates and researchers out of the UK. Let’s hope these changes mark the beginning of an endeavour towards greater inclusivity for generations of graduates and researchers to come.

Contact Our Immigration Barristers

For expert advice and assistance in relation to any aspect of Tier 2 (General) of the points-based system, contact our immigration barristers in London on 0203 617 9173 or via our enquiry form.

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