At a time when many trusts rely upon overseas recruitment to provide safe staffing levels, immigration rules are likely to make it more difficult to plan for the long-term employment of migrant staff.

The new rules state that the salary required to obtain Indefinite Leave to Remain (ILR) is £35,000. 

The gap between the minimum salary required for Tier 2 (General), (£20,800), creates a gap between the original salary for fresh permission under Tier 2 and the salary required to obtain ILR. 

In April 2012 a maximum period of six years in the UK under Tier 2 (General) was imposed for all migrants who entered the UK on or after 6 April 2011. At the end of six years migrants may apply for ILR, allowing them to legally settle in the UK without any time restrictions on their stay, if not they have to return home.

Given the salary threshold in the new rules, many may not qualify for ILR. 

New rules for indefinite leave to remain for individuals granted a Tier 2 visa on or after 6 April 2011

From 6 April 2016, those applying for ILR under Tier 2 and who entered Tier 2 under the rules in force from 6 April 2011, must be paid at least £35,000 per annum or the going rate in the relevant UK Border Agency Code of Practice, whichever is higher. 

The gross salary is made up of basic pay excluding any overtime payments. The thresholds change year on year as referenced below:

  • £35,500 if applying for ILR on or after 6 April 2018
  • £35,800 if applying for ILR on or after 6 April 2019
  • £36,200 if applying for ILR on or after 6 April 2020                                                                                  

These new rules will apply to anyone who entered or switched into Tier 2 of the Points-Based System under the rules in force from 6 April 2011 and who will therefore be eligible to make an ILR application in this category from April 2016. The ILR pay threshold of £35,000 will not apply to those who entered Tier 2 under the rules in force on 5 April 2011.

If an application does not meet the minimum salary requirements the migrant will not qualify for ILR and is likely to have to leave the UK. At this point they will be subject to a ‘cooling off’ period i.e. they cannot return to the UK for 12 months.

The 12 month cooling off period will apply to any Tier 2 migrant who leaves the UK and applies for entry clearance regardless of when their previous leave was granted. It will also apply to those who switch out of Tier 2 while in the UK and who wish to re-apply to Tier 2.

Exemptions from the £35,000 salary requirement

The only exceptions to that rule are for occupations on the shortage of occupation list, but at the moment the only nurses currently included are specialist nurses working in neonatal intensive care units. Other medical roles include paramedics, certain medical practitioners and radiographers. A full list can be found on the UKVI website.

Comment

As always, the Immigration Rules are in a constant state of change. When making an application for ILR the applicant must meet the requirements that apply at the time of their application. We are continuing to monitor the situation and await further clarification from the Home Office regarding any updates to the shortage of occupation list.