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Changes to Tier 2 and ILR rules Dec 2017

Tier 2 (General)

The following changes are being made to the Tier 2 scheme:

• Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently non PhD students cannot apply to switch within the UK until they have received their final results.

• Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.

• Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.

• Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.

• A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change (ie 4 weeks). The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.

Changes to indefinite leave to remain in work categories

The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.

If you need Immigration legal assistance with your Tier 2 sponsorship licence application or your permanent residency application, please contact us.

How easy is it to get a restricted certificate of sponsorship?

March 2016 – This is a question that we are asked on a daily basis by prospective sponsors.

The answer depends on many factors such as the nature of role, whether it is sufficiently skilled or not,  whether it is on the shortage occupation list or not, whether the salary offered is in line with the relevant code of practice, whether the resident labour market has been carried out in line with the UKVI’s requirements..etc.

We find that the less skilled and the less paid the role is, the less likely the application for a restricted certificate to be granted.

Even when the role has been advertised in line with the Home Office PBS Tier 2 requirements, the certificate can still be refused.

This will be the case when the Home Office is of the opinion that the advertising exercise is not genuine.

This will often happen when the selected candidate is already in the employment of the sponsor under another immigration category such as Tier 5. There is an inference that the employer never intended to find anyone else.

A refusal is also likely if the Home Office believes that the role has been ‘inflated’ so that to fit under a suitable code of practice.

When there are doubts, the Home Office (the sponsor compliance unit – Tier 2 limits team) will get back to the employer asking for additional documents and information prior to considering the request for the restricted certificate.  In most circumstances, employers will be required to provide a few job description for the role, a copy of the contract of employment for the role, a copy of all the advertising undertaken to recruit for the role specifying all the requirements the advertising in question needs to meet. Employers are also asked if the candidate has been identified for the role is already in their employment. If that is the case, employers are required to provide the candidate’s full name, date of birth and immigration status in the UK along with a copy of the candidate’s payslips for the last 3 months, the candidate’s last P60s and current job description.

If the employers is unable to provide the Tier 2 team with the required documentation before the 11th of the month, their application is held over to the following allocation date. If the Tier 2 team is unable to make the necessary verification checks before the allocation date the employer has applied for then the application will also be held over the following allocation.

For further information or an assessment of the chances of your application being approved, please contact us.

 

2014 Certificates of Sponsorship – What, which and how?

To enter or remain in the UK as a Tier 2 General or Intra Company Transfer (ICT) Visa you must have been issued with a valid Certificate of Sponsorship (CoS) from a Tier 2 Licensed Employer/Sponsor.

A Certificate of Sponsorship (CoS) is a database record in the UKVI’s Sponsor Management System.

The Certificate of Sponsorship (CoS) is the points based system’s replacement of the work permit scheme, which existed under the previous employment immigration route.

A Sponsor will have to satisfy themselves that all mandatory Tier 2 employment requirements have been met, such as, for instance, the resident labour market test was carried out in line with the UKVI’s guidance, before assigning a live CoS to a migrant worker.

A CoS takes the form of a 10 digit Certificate of Sponsorship reference number, which the migrant worker will need to apply for a visa or a leave extension. Although not strictly compulsory, Entry Clearance and Immigration Officers tend to insist on being provided with a hard copy of the long version of the certificate’s contents rather than relying on the CoS number.

What is a Certificate of Sponsorship?

A Certificate of Sponsorship is a virtual document, which confirms that a UKVI licenced employer is sponsoring a foreign migrant to come or remain in the UK to work.
It is pivotal that the CoS is issued correctly if the migrant worker is be granted a visa or an extension of their leave.

Errors on the CoS may result in the visa or leave extension application being refused.

Mistakes may also be picked up during a UKVI compliance audit, which could have negative and very costly repercussions.
Sponsors found non-compliant may be fined and have their licence downgraded or even revoked.

There are two types of CoS:
▪ Restricted, AND
▪ Unrestricted

As a general rule restricted CoS are used for most out of country visa applications.

Unrestricted CoS’s on the other hand are used in support of in country leave extensions, which are not subject to the immigration cap.

What are Restricted Certificates of Sponsorship?

Restricted Certificates are subject to the immigration cap.

They are granted by the UKVI on a case by case basis.

To obtain a restricted CoS a Sponsor must submit an application to the UKVI by the 5th of the month. If granted the Sponsor will be able to assign the CoS to their selected migrant worker.

The award of restricted certificates is ruled by a points based system.
▪ Priority is given to the roles listed on the Shortage Occupation List, THEN
▪ Roles which require a PhD and is in the research field, THEN
▪ Roles with higher level salary for which the Resident Labour Market has been tested (i.e. the role has been advertised in line with the relevant code of practice).

What are Un-restricted Certificates of Sponsorship?

Tier 2 Sponsors are granted an allocation of unrestricted Certificates of Sponsorship on a yearly basis. The allocation is based on their usage of the scheme in the previous year and their forecast for the year ahead.

Unrestricted Certificates of Sponsorship can be assigned to:

▪ Intra Company Transfers (where an Tier 2 ICT license is held)
▪ Existing migrants who are extending their employment with the same employer within the UK under Tier 2 General or ICT;
▪ New employees (Tier 2 or Work Permit Holders) who are moving to a new employer within the UK under Tier 2 General;
▪ Those seeking admission into the UK to fill a vacancy attracting a salary of £153,500 or more as a Tier 2 General
▪ Tier 4 graduates who are switching into Tier 2 General within the UK;
▪ Tier 2 Sports People; and
▪ Tier 2 Ministers of Religion.

How to make changes to a certificate of sponsorship once assigned?

Sponsors must make sure that the migrant worker’s details are correct when they create and assign a CoS.

Sponsors can use the ‘sponsor note’ field on the SMS to amend minor errors identified after the certificate of sponsorship has been assigned.

Examples of acceptable amendments are corrections to a mistyped name or date of birth.

If the main details are incorrect, the Sponsor must cancel the certificate and assign a new one so that to ensure that the information are the same as the one in the migrant worker’s application.

According the the UKVI’s guidance, new certificate must be assigned when for example:
▪ the SOC code or tier/category is incorrect; or
▪ more than one of the migrant’s identifiable details need to be changed – such as a full change to the date of birth and nationality, or to the surname and date of birth.

The sponsor note field can only be used to notify changes on a live certificate of sponsorship. Certificates that have expired or been cancelled cannot be amended.

For further information please contact us.

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