Legal Briefing

The changes to Tier 2 in practice

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Human resources | 01 June 2012

Following a further raft of changes to the immigration rules on 6 April 2012 and in particular to Tier 2 of the Points-Based System (PBS), sponsors of non-EEA nationals and their HR professionals engaged in recruitment, are now required to fully comprehend the implications of a prospective employee’s UK immigration status to determine their eligibility for future employment. Even if a candidate is eligible for a switch of sponsor, the trials and tribulations do not end there, with the current technical issues being experienced by the UK Border Agency (UKBA) at regional offices throughout the UK causing delays to start dates for new employees. It may be that a sponsor who signs up for the premium customer service will have fewer issues, but early indications are that this will not be the case, as even migrants using the £6,000 super premium service (payable in addition to the premium visa fee) are also experiencing technical and logistical issues.

Summary of changes to Tier 2

Since the inception of the PBS, the UKBA has introduced new rules frequently and with little or no notice at times. The changes of April 2012 to Tier 2 will profoundly impact on a company’s ability to mobilise its workforce and to ensure that a company can resource projects and fulfil contracts. A company must understand the impact of these changes and strategically consider the longer-term path of a migrant’s future in the UK.

The government is committed to reducing net migration to sustainable levels. In a time of high unemployment, the government believe it is right that employers look first to the resident workforce. Damian Green, minister of state for immigration, comments that:

‘Our reforms of the immigration system will ensure we are more selective not only about those who are allowed to come here but also those who are allowed to stay permanently.’

As a result of which, the government has introduced the following changes:

  • If an applicant is applying for entry clearance under Tier 2 (General), they must not have had entry clearance or leave to remain as a Tier 2 migrant in any sub-category at any time during the 12 months immediately before the date of application. This means that a migrant will not be able to apply for entry clearance until 12 months after their visa/leave to remain has expired, regardless of the date the migrant left the UK. Therefore, if a company wishes to recruit a migrant worker from a competitor it should ensure that the applicant applies for immigration permission while in the UK. If a Tier 2 (General) migrant wishes to change their employer and decides to take a period of leave outside the UK, they will be precluded from applying for entry clearance for 12 months.
  • Tier 2 (Intra Company Transfers) cannot switch into Tier 2 (General) unless they were last granted leave as a Tier 2 migrant under the Immigration Rules in place before 6 April 2010 or in the established staff sub-category under the Immigration Rules in place before 6 April 2011 and in both occasions change sponsor. Therefore, it is crucial that an employer reviews potential employees’ previous immigration status to ensure that they are eligible to switch to Tier 2 (General).
  • Tier 2 (General) migrants will be granted leave for six years in total. They must then must either apply for indefinite leave to remain before this date or leave the UK before the expiry of their stay, at which point they will be subject to the 12-month exclusion period. Employers should bear these time restrictions in mind for future recruitment.
  • To fill the void left by the closure of Tier 1 (Post Study Work), Tier 4 Students are now able to switch into Tier 2 if they can satisfy specific criteria and can demonstrate that they have completed and passed a UK-recognised bachelors or postgraduate degree or they have completed a minimum of 12 months in the UK towards a UK PhD. The migrant must have studied for their course at a UK institution that is a UK-recognised/listed body or which holds a Tier 4 sponsor licence. As a result of this change, Tier 1 (Post Study Work) migrants are now able to switch into Tier 2 (General) without having to complete six months with their sponsor to be exempt from the resident labour market test (RLMT) provided that they have been awarded a UK degree or higher.

Practical considerations

It would not be unreasonable to hope that once a sponsor has established that a potential employee is eligible to switch their immigration status to Tier 2 General that the main obstacle has been overcome. However, the sponsor then has to navigate their way through the logistics involved in obtaining the necessary permission for the employee to commence employment.

It is frequently the case that a prospective employee is located by word of mouth or recommendation, which means that, in the majority of cases, the sponsor has to carry out an RLMT before any job offer or immigration application may be made. This would take a minimum of 28 days with advertising generally required in two mediums, one of which would be the government’s Job Centre Plus website (if the salary is less than £70,000). A formal offer may then only been made if the RLMT fails to locate a suitable resident worker for the position.

In the meantime, the prospective employee will be considering their own position and the question immigration practitioners are frequently asked is ‘when shall I resign?’. This is very much a personal decision but one which needs to be considered carefully in the current economic climate. An individual would not want to resign to discover that a more suitable candidate has been located through the RLMT so generally they will wait until this has at least been carried out and a job offer received. However, there are a number of practical considerations to be borne in mind such as notice periods, the method by which the leave to remain application is to be submitted ie by post or via the premium service and therefore how long the application is likely to take to process. An employee may not commence employment until they have received their biometric residence permit containing the conditions of their stay in the UK.

Waiting times

Postal applications are currently taking in excess of three months to process and obtaining a same-day premium appointment is also difficult. Since 29 February 2012, all applicants applying to extend their stay in the UK for more than six months must submit their biometric data ie fingerprints and a digital photograph at either a UKBA office or a designated Post Office. Online personal appointments are released six weeks in advance and are generally booked within a few hours of being made available with particular demand for Tier 2 appointments. This change appears to have overloaded the UKBA’s systems and there have been constant technical issues across their offices regionally and within Post Offices. These have resulted in appointments being cancelled at short notice with no substitute appointment given, applicants being recalled to resubmit biometrics and applications being transferred out of the Croydon Public Enquiry Office to either Sheffield or Liverpool offices with no notice to the applicant who has just paid a premium fee for same-day processing. Consequences have included start dates being delayed, missed business trips and applicants being left with no choice but to submit via post where their current leave to remain in the UK is expiring and they cannot secure a further premium appointment before this date. All this seems rather inequitable to the applicant who has secured an appointment six weeks in advance to then have to submit by post. The UKBA standard response is that travel should not be booked until the application has been processed but this is not always possible for a senior executive where travel is fundamental to their role.

At the time of writing, another major IT upgrade was undertaken only for there to be complete system failure throughout the regional offices on the subsequent day. A Tier 2 applicant with a spouse and two children will have paid visa fees totalling £2,169 for a premium same-day service. A Tier 1 applicant will pay £1,800 for their own application and an additional £900 for each dependant. It does not therefore seem unreasonable for the service, which is titled premium same-day service, to live up to its name.

Premium customer service for sponsors

The premium customer service for sponsors was introduced on 6 April 2012 and, according to UKBA publications, has been designed to offer a business a range of services to support it in sponsoring overseas workers; and to develop a relationship between a business and the UKBA to create a better long-term understanding of business requirements. The benefits of signing up to this initiative (at a cost of £8,000 per annum for small and medium enterprises or otherwise £25,000 per annum) is stated to include guaranteed access to public enquiry office appointments and priority visa services overseas for international workers, direct personal contact within the UKBA and priority treatment on all changes to a sponsor licence.

Given the current catalogue of problems experienced with IT systems and delays in ‘same-day premium processing’, sponsors have been slow to sign up for this scheme as published benefits do not seem to justify the £25,000 additional sign up fee. Should the UKBA manage to resolve their IT issues, which have been ongoing for more than three months now, or reduce further the number of online appointments made available (a possibility which has been muted as a solution to current delays), we may see large sponsors with regular requirements for Tier 2 General appointments sign up for the service but otherwise the benefits appear to be only those that were supposed to be available to all PBS licence holders without payment of an additional fee.

In summary, the days when a work permit holder holding permission to work for one employer moving to a similar job with another employer could switch their employer with no advertising being undertaken and could start work on the issue of an approval letter by Work Permits UK are long gone and an employer now needs to be an immigration specialist and a logistics consultant to successfully recruit and employ a non-EEA national.