We know that our readers won’t be shocked to hear there have been more changes announced to the Immigration Rules…but you may be pleasantly surprised to learn that they are changes which will actually help Tier 2 Sponsors and migrants!
There has been a publicised backlash from businesses and senior executives in the face of increasingly restrictive changes to the rules which have been designed to reduce net UK migration, and in response the Government has made some attempt to reverse the damaging effects of a policy which prevents companies from hiring the international staff they need. The changes will come into effect on the 13th December 2012 and there are additional policies being introduced which effect migrants in other Points Based System categories.
In this blog we will provide a breakdown of the changes affecting Tier 2 and how they may help you…
Summary of Tier 2 Changes
- Senior Intra-company transferees earning in excess of £150,000 will be permitted to remain in the UK for up to 9 years in total.
- The 12 month ‘cooling off period’ that currently applies to certain Tier 2 migrants will be amended to run from the date the migrant leaves the UK, rather than the visa expiry date.
- Tier 2 migrants will be permitted to take up supplementary employment in a shortage occupation, even if this is a different occupation to the one their Tier 2 visa has been issued for.
- Tier 2 migrants applying for settlement will be allowed absences from the UK for up to 180 days in a 12 month calendar period, provided absences are consistent with their employment or for a serious compelling reason. (Note: this change will also apply to other work-based categories of applicant applying for settlement including work permit holders, sole representatives etc).
We will now analyse each of these changes in more detail and explore how they may affect Tier 2 migrants and Sponsors.
Changes to the ‘cooling off period’
Currently, most Tier 2 categories are subject to a 12 month ‘cooling off’ period which runs from the expiry date of the migrants visa.
This was causing an issue for Tier 2 migrants who left the UK earlier than their visa expiry date because unless the UKBA actively curtailed their visa on leaving the UK, the ‘cooling off’ period was still deemed to run from the visa expiry date. It was also creating problems for many of the companies we assist, who have found themselves unable to bring essential staff back to the UK for a new project, because they are only a few months into their ‘cooling off’ period following the end of another project in the UK.
The new change will amend this, so that providing the migrant can evidence the date they left the UK, the ‘cooling off’ period will run from that date rather than from the date of curtailment or the date of expiry of their leave.
It is not clear as yet what evidence the UKBA will require to demonstrate that the migrant has left the UK – this will be set out in the new guidance that is expected to be published in December. Employers should also note that they will still be required to report the migrant’s early departure to the Changes to absence rules for settlement
Changes to absence rules for Indefinite Leave to Remain (ILR)
One of the most common issues which arises when we are assessing a potential ILR or settlement application relates to the number of absences which a client has spent out of the UK in the preceding five years. The rule is that (provided no single absence is longer than three months), absences of up to 180 days in the qualifying five year period, will be allowed by the UKBA and they will generally overlook short absences commensurate with annual leave entitlements or business travel.
Under the new rules for Tier 2 migrants, absences totalling up to 180 days per calendar period of 12 months will be permitted, provided that these absences are consistent with the person’s employment or for a serious compelling reason.
At the moment it is unclear whether the UKBA will continue to apply scrutiny to block absences of 3 months or more once these changes come into effect and this is something that both migrants and employers alike should be aware of, but the clarification of UKBA policy in this respect is again great news.
Extending the maximum period of leave for Tier 2 ICT migrants earning over £150,000
Under the current rules, the maximum period of leave that a Tier 2 Intra-company migrant in the Long-term staff category can remain in the UK is 5 years in total and for migrants who applied after 6th April 2010 the route does not lead to settlement.
These changes coming into effect on 13th December mean that for senior executives in your business on this type of visa who are earning £150,000 or more, the maximum period of stay allowed will be extended to a total of 9 years.
The UK Border Agency state that this change has been introduced in a response to feedback from UK businesses that the 5 year limit is too restrictive, but the changes obviously stop short of enabling these migrants to reach 10 years and then applying for settlement on the basis of long-residency.
Indeed, the changes may be seen to be something of a red herring as certainly for new Tier 2 migrants coming into the UK who already earn over the £150k limit we would usually advise employers to consider using the Tier 2 (General) route over and above the Tier 2 ICT route. Tier 2 (General) migrants in this category are exempt from the Resident Labour Market Test and although currently the maximum period of stay is 6 years, there is the obvious advantage that the Tier 2 (General) route leads to settlement, which of course the ICT route does not.
Of course, for Tier 2 ICT migrants who are already in the UK and earning over the £150k threshold, this will be welcome news.
Migrants in Tier 2 can take up supplementary employment for up to 20 hours a week provided that it is in the same occupation and at the same professional level that their Certificate of Sponsorship has been issued for.
Under the new changes, Tier 2 migrants will also be able to take up supplementary employment in a shortage occupation, whether or not this is in the same occupation to that which they are currently sponsored to work in. This is an attempt by UKBA to assist in easing shortages in these occupations.
We hope this has provided a useful breakdown of the new rules, and watch this space for a blog on the other PBS changes coming into force on December 13.
Please leave your general comments below but if you have any specific queries about these changes then please feel free to give us a call on 0207 0012121.