The truth behind the £35,000 minimum salary requirement

It has been reported recently that all non-EEA migrants applying for settlement (indefinite leave to remain) need to earn a minimum salary of £35,000. But it’s also been reported that some people, e.g. nurses, don’t have to meet the requirement. What’s the truth?

It is true that there is a minimum income threshold for some non-EEA migrants. However, the £35,000 minimum salary only applies to some Tier 2 (General) Migrants. Some Tier 2 (General) Migrants are exempt from the threshold, and some will need to earn more than this in order to settle.

Applicants in any other immigration category do not need to meet this requirement. However, bear in mind that some other immigration categories have their own financial requirements for settlement, e.g. spouses.

Applicants can apply for settlement as a Tier 2 (General) Migrant after five years in this category. They can also combine it with specified other immigration categories for settlement, as long as the most recent leave was as a Tier 2 (General) Migrant. The minimum salary threshold is just one of the requirements they need to meet.

What is the minimum salary requirement?

There are two parts to the minimum salary requirement.

First, the date of application for indefinite leave to remain determines how much an applicant needs to earn per year in order to settle. In some cases this will be more than £35,000. An applicant must earn:

• £35,000 if the date of application is on or after 6 April 2016;
• £35,500 if the date of application is on or after 6 April 2018;
• £35,800 if the date of application is on or after 6 April 2019; or
• £36,200 if the date of application is on or after 6 April 2020.

Applicants applying before 6 April 2016 do not need to meet this part of the minimum salary requirement.

If the applicant is paid hourly, only earnings up to 48 hours a week will be taken into account.

Second, the applicant’s salary must also be at least equal to the appropriate rate for the job as set out in the codes of practice. For some applicants, the appropriate rate for the job will be more than the £35,000. This will depend on the exact role and the number of hours worked per week.

This must be basic pay. It can include allowances where they are part of the guaranteed salary package and would be paid to a local settled worker in similar circumstances. Share value, bonus and incentive pay and other allowances or benefits cannot be included.

Who doesn’t need to meet the requirement?

There are exemptions to the first part of the minimum salary requirement, but not the second. This means that an applicant’s salary must still be at the appropriate rate for the job.

• Those in PhD-level occupations. This does not refer to whether the applicant has a PhD, but whether the job they are doing is classified as PhD-level according to the Home Office codes of practice;
• Those in shortage occupations. The job must appear on the Shortage Occupation List at the date of application. Alternatively, the job must have previously appeared on the Shortage Occupation List at any time when the applicant was assigned a Certificate of Sponsorship or had leave as as a Tier 2 (General) Migrant, sponsored for that job, during the six years before the date of application;
• Those who have held certain Work Permits during the five-year period;
• Those who have held leave as a Tier 2 Migrant where the Certificate of Sponsorship leading to that grant of leave was assigned before 6 April 2011 during the five-year period; and
• Tier 2 (Intra Company Transfer) Migrants. Those granted Tier 2 (ICT) visas under the Immigration Rules in place on or after 6 April 2011 are already unable to settle in the UK using their Tier 2 visa alone in most cases.

Because nurses have now been added to the Shortage Occupation List, they now do not have to meet the first part of the minimum salary requirement (the £35,000 requirement). In practice, the codes of practice broadly reflect NHS pay scales and so it is unlikely a nurse would have difficulty meeting the second part of the salary requirement (for the salary to be above the minimum for the SOC Code). Nurses are not the only exempt profession. The list also includes additional medical staff, certain engineering roles and some specialist software developers, amongst others.

What other requirements are there for settlement?

As well as being paid above this rate, an applicant must:

• Not fall for refusal under the general grounds for refusal or be in the UK in breach of immigration laws (overstaying for 28 days or less will be disregarded);
• Have spent a continuous period of five years lawfully in the UK, of which the most recent period is Tier 2 (General), in Tier 2 (General) alone or in combination with certain other immigration categories;
• Not have any absences from the UK that are inconsistent with their basis of stay in the UK; and
• Have sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom.

The Sponsor that issued the Certificate of Sponsorship that led to the applicant’s last grant of leave must

• Still hold a Tier 2 Sponsor licence in the relevant category, or have applied to renew it; and
• Certify in writing the applicant’s pay details and that the applicant is still required for the employment.

Contact our Direct Access Business Immigration Barristers London

For advice and assistance with an application under Tier 2 (General) of the points-based system, contact our direct access business immigration barristers in London on 0203 617 9173 or complete our online enquiry form.

Contact our direct access business immigration barristers London