UK Business Immigration Update and Guidance on the Changes to Tier 2 of the Points Based System from 6 April 2012 Supinder Sian Shanti Faiia 37 Offices in 18 Countries
Today’s Presenters Supinder Sian Shanti Faiia Senior Associate Associate supinder.sian@ssd.com shanti.faiia@squiresanders.com Direct: +44 (0)20 7655 1741 Direct: +44 (0)20 7655 1378 Mobile: +44 (0)754 593 5617 Mobile: +44 (0)7912 000 580 2
Introduction • Summary of changes from 6 April 2012 • Summary of changes from 14 June 2012 • Tier 2 General cooling off periods • Renewing your Sponsor licence • Premium sponsor scheme • Visitors carrying out Permitted Paid Engagements 3
Summary of Changes from 6 April 2012 Increased control of movement into the UK • Maximum period of leave under Tier 2 limited to six years applies to migrants who entered the UK under the Tier 2 rules in place from 6 April 2011 initial period of leave granted for up to three years extension of leave granted for up to three years Tier 2 (General) migrant will continue to be eligible for settlement after five years continuous leave in the UK Migrant must apply to settle in the UK prior to the expiry of their leave or leave the UK once they have come to the end of the maximum six year period of leave 4
Summary of Changes from 6 April 2012 • A Tier 2 (General) cooling off period of 12 months will apply • New requirements for settlement in the UK: migrants must be paid at or above £35,000 per annum if they entered the UK under the rules in place from 6 April 2011 (some exceptions) where the going rate in the relevant UK Border Agency Code of Practice is higher, the migrant must be paid the higher rate the £35,000 threshold will be in place until April 2018 5
Summary of Changes from 6 April 2012 Switching into Tier 2 relaxed for some with closure of Tier 1 (Post Study Work) on 6 April 2012 • Tier 1 (Post Study Work) migrants no longer required to show they have been working for current employer (Tier 2 Sponsor) for at least six months NB Tier 1 (Post Study Work) migrants must now satisfy the Points Based System maintenance requirements • Resident Labour Market Test not required for migrants who have current leave to remain under Tier 1 (Post Study Work) or student categories and if applying within the UK (some exceptions) • Students switching into Tier 2 may start work with Tier 2 employer provided: Tier 4 or student leave is valid Tier 4 or student leave permits work 6
Summary of Changes from 6 April 2012 • Changes to rules surrounding curtailment of a migrant’s leave under Tier 2 If a migrant fails to start work or has ceased his work e.g. due to sponsorship ending or a period of unpaid leave in excess of one month (some exceptions) the UKBA will cut short his permission to enter or remain in the UK Ties in with sponsor reporting duties – IMPORTANT! UKBA will now pursue curtailment if a migrant has more than 60 days’ leave remaining (this has been reduced from six months) 7
Summary of Changes from 14 June 2012 • Minimum skill level increase from NQF4+ to NQF6+ 27 occupations no longer qualify under Tier 2, including Office Managers, IT Operations Technicians, Financial and Accounting Technicians, Business and Related Associate Professionals and Marketing Associate Professionals SOC codes valid from 14 June 2012 published on UKBA website Transitional arrangements apply for migrants already in the UK 8
Summary of Changes from 14 June 2012 • Resident Labour Market Test relaxed Roles paying £70,000 to £149,999 per annum will no longer need to be advertised in Job Centre Plus Advertising in at least one approved medium still required e.g. a suitable internet job search site specified in the pertinent SOC code Sponsor will be able to select best candidate for PhD level occupations rather than the ‘most suitably skilled’ resident worker Roles paying at or above £150,000 per annum will continue to be exempt 9
Summary of Changes from 14 June 2012 Increase in maintenance funds for Tier 2 • Main applicants Tier 2 main applicant will need to show minimum £900 of available funds for every day of a consecutive 90 day period immediately prior to submission of an application for leave to enter or remain A-rated sponsor may still certify maintenance on CoS for first month of employment • Dependants Dependants will be required to show minimum £600 of available funds every day of a consecutive 90 day period immediately prior to submission of an application for leave to enter or remain. A-rated sponsor may still certify dependants’ maintenance funds in a letter, but will be certified for the first month of dependant’s leave 10
Tier 2 (General) Cooling off Periods Tier 2 migrants who leave the UK (because their sponsorship has come to an end) without qualifying for settlement will be required to spend a period of 12 months outside the UK before they may reapply to enter the UK in any Tier 2 category (some exceptions for Tier 2 ICT) • The 12 month “cooling off period” will start from the date the Tier 2 visa expires even if the migrant left the UK before the end of that visa • A 12 month “cooling off period” will also apply to migrants switching out of Tier 2 while in the UK and who later wish to reapply under Tier 2 (General) – likely to be rare • The 12 month “cooling off period” will apply to any migrants applying for leave to enter the UK after 6 April 2012 11
Tier 2 (General) cooling off periods Scenario A Possible scenarios where the cooling off period will apply include: Scenario A John, a US national, was sponsored by his employer under Tier 2 (General) to come to the UK as a Director of the company for the maximum initial period of three years. John accordingly obtained entry clearance valid from 1 April 2012 to 31 March 2015. John travels to the UK and starts work on 1 April 2012. In December 2012, circumstances change and John moves back to the US. His employer in the UK reports the end of his employment on the SMS and withdraws sponsorship. John will be unable to apply to come back to the UK under Tier 2 until 31 March 2016, 12 months after the expiry of his leave. NB: if the UKBA takes action to curtail John’s leave, the 12 month “cooling off” period will apply from the date his leave is curtailed to 12
Tier 2 (General) cooling off periods Scenario B Scenario B Lucy is sponsored under Tier 2 (General) to work as an Investment Analyst with leave valid from 1 April 2012 to 31 March 2015. Lucy decides she wants to branch out on her own and switches her status to Tier 1 (Entrepreneur) on 4 January 2014, investing into her own company in the UK. Things don’t work out and six months later, Lucy decides she really needs a job again. She is offered a job by a Tier 2 sponsor who want her to apply for Tier 2 status and to start work in August 2014. Lucy cannot apply to switch her status back to Tier 2 until 3 January 2015, 12 months after she switched out of Tier 2. NB: in this scenario, Lucy will not be able to start work under her Tier 1 status as she is limited to taking employment for the business she has established. 13
Tier 2 (General) cooling off periods Scenario C Scenario C Billy, an Australian national working in the UK under Tier 2 (ICT), returned to Australia on 31 December 2011 when his leave expired. Billy was offered a job with a new employer in the UK starting on 1 April 2012. His Tier 2 Sponsor assigned him a Tier 2 General CoS in February 2012 but due to a family emergency in Australia he only made his application for entry clearance on 10 April 2012. Billy’s new application would be refused because he has held leave under Tier 2 within the last 12 months. He will only be able to apply to re-enter the UK under Tier 2 (General) from 31 December 2012. NB Tier 2 sponsors must be aware of when the “cooling off” period is likely to kick in so that recruitment and training strategies are in place to ensure business needs continue to be met in a timely way 14
Renewing your Sponsor licence Tier 2 of the PBS has been in place since 27 November 2008 • If a licence was granted before 27 November 2008, it will expire on 27 November 2012 • In all other cases the licence expiry date will be four years from the grant of the licence • You MUST apply to renew your licence before it expires • If you are sponsoring migrants and do not renew your licence in good time: You will not be able to assign any more CoS Any Tier 2 migrants working for you will have their leave curtailed to 60 days Your details will be removed from the Sponsor register and you will be treated as a new Sponsor if you apply again If there is a gap between the expiry of the licence and renewal you may therefore need to re-conduct a Resident Labour Market Test for any migrants previously sponsored by you 15
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