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UNITED KINGDOM: Tier 2 Update

Proposals for Tier 2

As the main category for sponsored skilled workers, Tier 2 requires a Certificate of Sponsorship (COS) from the migrant's licensed sponsor. These will be divided into "Restricted" and "Unrestricted" COS.

Starting April 6, the Restricted COS will be capped at an annual limit of 20,700 - 4,200 of which will be available for the first month and 1,500 available thereafter. It is proposed that if a monthly limit is undersubscribed, the balance will be added to the allocation for the following month. If the monthly limit is oversubscribed, applications will be prioritized based on a new points table. Much like the old work permit scheme, which ironically the PBS was supposed to displace, sponsors will need to apply to the monthly panel for a Restricted COS each time they wish to sponsor a migrant under Tier 2 (General).

This points system will prioritize occupations on the new shortage occupation list followed by occupations at the Ph.D. level and then occupations meeting the resident labour market test (RLMT). Points will also be awarded for salaries ranging from £20,000-£20,999 with further points for salaries of £100,000 to £149,000. Persons in occupations with salaries of less than £20,000 will be unable to meet the minimum points required.

Unrestricted COS are only available for the Tier 2 categories unaffected by the limit. These fortunate few include intracompany transfers, Tier 2 migrants extending with their original employer or switching to a new employer, migrants switching into Tier 2 (General) from a permitted category, applications under transitional arrangements for existing Tier 2 and work permit holders, positions with a salary over £150,000, and Tier 2 sports people or ministers of religion.

Sponsors will be given an initial annual allocation of Unrestricted COS based on UKBA’s consideration of their allocation requests. These surprisingly generous provisions should enable sponsors to continue employing migrants who are extending their leave with their original employer; switching into Tier 2 (General); or are intracompany transfer migrants, without the need for a salary assessment (as there is for Restricted COS). The consequence will no doubt be a rush of annual allocation requests from sponsors who had been stripped of COS under the previous interim limits. Immigration practitioners are concerned that UKBA may not have provided for this or at least included any mechanism to prioritize urgent requests.

As the new graduate occupation and shortage occupation lists are compiled, some occupations are expected to be dropped from the "skilled" threshold. Positions previously on the shortage occupation list may be removed if they do not meet the new graduate-level criteria. Nevertheless, provided the minimum salary levels are defined clearly and the lists compiled in accordance with Migration Advisory Committee (MAC) recommendations, some positions may be elevated to the new skilled level by virtue of the migrants' previous experience being equivalent to graduate-level. This will apply to all migrants across the board for both Restricted and Unrestricted COS.

Another change proposed for the Tier 2 category is the increased English-language requirement to intermediate English at level B1 on the Common European Framework of Reference for languages. Furthermore, Tier 2 entry clearance applicants will no longer be able to claim points for qualifications.

Settlement

Migrants submitting applications for ILR in the UK on or after April 6, 2011, will be affected by the changes to settlement requirements to be introduced on April 6, 2011. The changes will introduce a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement; will amend the Knowledge of Language and Life in the UK requirement for Tier 1 (General), Tier 2 (General) and work permit holders; and will clarify the criminality test applied to all applicants for settlement. UKBA's proposals to tighten settlement requirements bear, on closer inspection, a likeness to the outgoing government's ideas (published in the "Path to Citizenship" green paper on February 20, 2008) for selecting migrants with "the right values and commitments" who could integrate well into British society. There is one key difference however, as there appears to be no inclination to mimic the "earned citizenship" proposal.

Unfortunately, as changes are proposed for the Tier 1 and Tier 2 categories, UKBA has failed to align its proposals with settlement rules and nationality law. For instance, the lure of "accelerated settlement" for Tier 1 (Entrepreneur) and Tier 1 (Investor) migrants who invest more money into the UK does not factor in the requirement of continuous residence in the UK under the settlement rules, which most entrepreneurs and investors will not be able to meet. UKBA has remained silent on this matter, but it is evident that primary legislation may need to be amended accordingly.

Conclusion

UKBA’s aim to create a "flexible system designed to meet business needs" as well as to reduce net economic migration may seem almost impracticable but may be indeed achieved in part. Though it is a difficult balancing act, it cannot be denied that many potential applicants will now fall short of the higher thresholds, resulting in a net reduction in migration. It remains to be seen whether the new rules will constrict businesses from employing as many non-EEA migrants as required or whether businesses will remain unscathed.

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