Tier 1 PSW switches into Tier 2 (General) a straightforward affair?

January 25, 2013

We’ve been dealing with a couple of complex cases recently which have highlighted certain effects of the new rules.  We wanted to share this information with our readers in the hope that you can avoid being caught out.

As ever, we welcome your comments and views…

Switching from the Tier 1 (Post Study Work) Visa into Tier 2 (General)

As we discussed briefly in a previous Newland Chase blog, the Tier 1 Post Study Work visa category gave international graduates from UK universities two years in which they could look for employment in the UK with a Tier 2 Sponsor.  The visa category closed in April 2012, but there are still many Tier 1 PSW visa holders present in the UK.

Tier 1 PSW migrants who are successful in finding a job with a Tier 2 Sponsor may then submit an unrestricted application to switch into the Tier 2 (General) visa category.  This means that the sponsoring company does not need to complete the Resident Labour Market Test (RLMT) and advertise the role in question for 28 days prior to submission of the switching application.  This has obvious benefits for the company because they save on costs and time.  It is also positive for the migrant as the application can be submitted as soon as the employing company confirms they are willing to Sponsor him or her.

Of course, the requirements for Tier 2 (General) must still be met in order for the applicant to succeed in effecting the switch.  The job must be at the correct skill level and the salary attached to the role must be at least £20,000 or the amount specified on the relevant Standard Occupation Classification (SOC) Code, whichever is greater.  In addition, the applicant must submit their UK university degree as proof they meet the English language requirement (provided the degree meets the criteria), the maintenance requirement must be satisfied and the applicant must not fall under any of the general grounds for refusal.

However, provided the applicant satisfies all the requirements, the sponsoring company will be able to issue a Certificate of Sponsorship (COS), prepare the necessary forms and supporting documents and the application can be submitted.

Inconsistencies and errors

Sometimes, inevitably, as a result of human error, a mistake might be made on a COS.  For example, the incorrect salary may be entered or the wrong SOC Code selected for the occupation in question.  If the mistake is not identified until the application is under consideration by the UKBA, then it is likely that an application could fall for refusal or be returned as invalid.

Previously under the old rules, prior to the points based system being introduced in 2008, there appeared to be more flexibility adopted by the UKBA in handling applications.  If immigration officers required further information or clarification on an application they would quite often contact the employer or their representative.  Now, however, this is no longer the case and it is quite likely that if an application contains an inconsistency it will be sent back to the applicant.  We are therefore seeing an increasing number of challenges within our working practice as a result of the rigidity in decision making adopted by the UKBA.

What happens when things go wrong under the new Rules?

It is important to point out to our readers that due to the increasing complexity of the new immigration rules, it is now necessary to ensure that applications are submitted well in advance of any expiry date and also to ensure accuracy of information and evidence submitted with the application.

Applicants should bear in mind the new rules on overstaying which state that the UKBA will refuse applications for further leave to remain if the applicant has overstayed their leave by more than 28 days at the point they make an application.

In addition, should a non-EEA national submit an application within the 28 day period, but have this application refused by the UKBA, he or she must leave the UK within 90 days or potentially become subject to a mandatory re-entry ban.

Advice for employers

There are a number of measures that can be taken to avoid unnecessary refusals or risking an employee’s right to remain in the UK but these must be considered in advance of the application being submitted.  Although there may still be recourse to alternative options after the refusal of an application, we believe these are now limited.  Seeking professional advice at an early stage can prevent individuals from being placed at risk of either having to end their career in the UK abruptly, as we have seen in some cases, or being subject to a ban from re-entering the UK of between 1-10 years.

Of course, employers can also be impacted quite significantly in the event that a migrant’s application is rejected after their visa has expired.

As we all know, with the government’s manifesto of reducing net immigration to tens of thousands, every effort is being made to ensure there are limited options for migrants to remain in the UK.  In the event of a refusal therefore, employers will need to consider carefully what action to take in order to protect themselves where an employee is no longer has lawful status as defined by the immigration rules.

There are also inherent employment law implications in such circumstances and in order to avoid being caught out by these challenges, we would always advise employers to seek professional advice at an early stage, otherwise the consequences can be significant.

Our experiences

We’d like share some of our key tips with HR advisors and non-EEA nationals as follows:

• Early submission where possible: don’t wait until an individual’s Tier 1 PSW visa is near to the expiry before submitting the Tier 2 (General) application. 
• Check and check again: ensure that the Tier 2 application is checked carefully for any errors.  If there is any uncertainty over which SOC Code to use or what the salary should be, consult an immigration provider.
• If a refusal notice is received – act quickly: don’t spend weeks thinking about what to do. You will need to take immediate action as soon as the notice is received by the non-EEA national.
• Check the Rules before you re-apply: make sure you won’t be caught out by any new factors which must be taken into account in light of the refusal.  Also bear in mind that Immigration Rules change frequently and you should ensure the new application will still meet the requirements of the Rules.
• Look at other safeguards – Consider taking other measures to ensure that the non-EEA national’s right to remain in the UK is protected.

We hope this will prove useful and if any of our readers have experienced similar circumstances, we’d love to hear from you.  For specific immigration enquiries, please contact us via email or call 0207 0012121.