Long-term transfers

Categories

What are the main work and business permit categories used by companies to transfer skilled staff?

The most widely used immigration category is the Tier 2 (Skilled Workers) category. The Tier 2 (General) subcategory can be used to facilitate the employment of a new hire to the company and bring over employees who will be undertaking a permanent UK role that cannot be filled by a settled worker. The Tier 2 (ICT) subcategory allows the company, provided it is a multinational company, to temporarily move existing employees to the UK. The Tier 2 (ICT) subcategory is broken down into a number of specific subcategories: Long-term Staff and Graduate Trainee, which can be utilised depending on the business’s needs.

Procedures

What are the procedures for obtaining these permissions? At what stage can work begin?

The Tier 2 category is the main category that UK companies use to employ skilled, non-EEA staff. In order to sponsor an individual under the Tier 2 category, an employer must first obtain a Tier 2 sponsor licence by applying to the Home Office. The Home Office is the UK government department that deals with all immigration applications. If the sponsor licence is granted, the employer will be able to issue certificates of sponsorship to their skilled migrant staff, providing they meet the relevant criteria. The migrant must then apply for entry clearance (if applying outside the UK) or leave to remain (if applying from inside the UK) in order to be granted the requisite immigration permission to work in the UK. All of these steps must be undertaken before the individual can commence work in the UK. Note that applicants applying from outside the UK will typically be subject to the monthly quota (known as restricted certificates of sponsorship).

Period of stay

What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?

There is no minimum period of stay granted by the Home Office. The maximum duration a single visa can be issued under the most commonly used subcategories of Tier 2 is five years. This can be extended for up to nine years for staff earning £120,000 a year or more under the Tier 2 (ICT) subcategory and six years under the Tier 2 (General) subcategory. Other subcategories have different periods of leave attached, which vary in length depending on the category.

Processing time

How long does it typically take to process the main categories?

Processing times for Tier 2 applications are dependent upon a number of factors including, but not limited to, the subcategory under which the individual is applying, the country in which he or she is filing, the complexity of the matter and the availability of the required documents needed to process the application. Standard processing times from the point of commencing the application process to receiving the visa are approximately two to 12 weeks.

Some countries (eg, the United States) operate a priority service whereby applications are usually processed within approximately five working days of the date the documents are received by the UK diplomatic post abroad. Note this does not include the time required to prepare the application up to the point of submission. The availability of priority processing services is dependent on the country and the application category. Over the past 12 months, the Home Office has extended its priority processing services through its commercial partners to include a broader range of priority packages in some jurisdictions.

Staff benefits

Is it necessary to obtain any benefits or facilities for staff to secure a work permit?

It is not necessary for employers to provide their employees with any benefits or facilities in order to obtain working immigration permission. However, when making a Tier 2 application, an employer may wish to certify that they will maintain and accommodate an employee for the first month of their employment. If an employer chooses not to do this then the individual will need to provide evidence to the Home Office that he or she has the requisite funds to meet this requirement by way of personal bank account statements.

Assessment criteria

Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?

The most commonly used immigration category is Tier 2, which is part of the points-based system. This immigration route is subject to a set of objective criteria, which means that all applications made under this category must meet the set points criteria and no discretion is permitted. However, it is possible in extremely exceptional circumstances to have applications approved that fall outside the UK Immigration Rules.

High net worth individuals and investors

Is there a special route for high net worth individuals or investors?

Investors may apply under the recently introduced Innovator or Start-Up visa categories. The Innovator visa category replaces the Tier 1 (Entrepreneur) category and aims to allow individuals to invest in the UK by setting up or taking over and being actively involved in the running of a business. In order to qualify, an individual must have at least £50,000 in investment funds to set up a new business, in addition to meeting other mandatory qualifying criteria. The funds are not required if the business is already established and has been endorsed for an earlier visa.

The Start-up visa category replaced the Tier 1 (Graduate Entrepreneur) category on 29 March 2019. Non-EEA nationals can apply for a Start-up visa if they wish to set up a business in the UK and meet all the eligibility criteria, including being endorsed by an authorised body. It is not possible for individuals to apply for a Start-up visa in order to join or invest in a business that is already trading.

The Tier 1 (Investor) category is designed for high net worth individuals who wish to make a substantial financial investment in the UK. Individuals must be able to invest a minimum of £2 million in the UK, in addition to meeting other mandatory criteria. UK immigration regulations contain detailed requirements concerning the nature of the investment, and the criteria for eligibility; more stringent regulations were introduced in March 2019.

Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?

Under the Tier 1 (Investor) category, an individual may be eligible to settle in the UK if he or she has been living in the UK for two, three or five years with enough assets and investments. The amount of time depends on the level of investment, which can be either cash or assets and a loan. Accelerated settlement status can be achieved by investing either £5 million (obtaining settlement after three years) or £10 million (obtaining settlement after two years). Applicants must invest the full relevant amount in UK government stocks and bonds, or shares in UK trading companies.

The Innovator visa category does not lead to settlement. In contrast, the Start-up visa category does lead to settlement after five years, subject to mandatory eligibility criteria being met.

Under the Tier 2 (General) route, individuals earning over £159,600 are exempt from the annual cap of certificates of sponsorship and the employer does not have to undertake the resident labour market test. Further, individuals who have held a Tier 2 (General) visa within the previous 12 months and wish to make a subsequent Tier 2 application from outside the UK after their initial visa has expired may have to spend 12 months outside the UK before they can re-apply to return to the UK under the Tier 2 category. However, if they are earning over £159,600, they are exempt from the 12-month cooling-off period.

Highly skilled individuals

Is there a special route for highly skilled individuals?

The Tier 1 (Exceptional Talent) subcategory is for non-EEA migrants who are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts and wish to work in the UK. The subcategory is limited to 2,000 endorsements per year. These are divided between five designated ‘competent bodies’: the Royal Society (natural sciences and medical science research), Arts Council England, the British Academy (humanities and social sciences), the Royal Academy of Engineering and Tech City UK. Note that, should an applicant receive an endorsement, a visa is not automatically issued and the applicant must still meet further mandatory criteria.

Ancestry and descent

Is there a special route for foreign nationals based on ancestry or descent?

Foreign nationals can apply for a UK ancestry visa if specific eligibility criteria are met; one of the key criteria to be met is that the applicant must prove that one of his or her grandparents was born in the UK. The applicant must demonstrate that the grandparent was born in one of the following circumstances:

  • in the UK, including the Channel Islands and the Isle of Man;
  • before 31 March 1922 in what is now Ireland; or
  • on a UK-registered ship or aircraft.

It is possible for a foreign national to claim ancestry if either the applicant or the relevant parent was adopted or born within or outside marriage in the UK. It is not, however, possible to claim UK ancestry through step-parents. All eligibility criteria for the UK ancestry category need to be met by an applicant. A successful applicant for a UK ancestry visa will initially be granted leave to enter for a period of five years. It is possible to extend a UK ancestry visa and for a UK ancestry visa holder to apply for permanent residence (subject to all eligibility criteria being met).

Foreign nationals may also be eligible for British citizenship if they have a British parent. However, this is not an automatic right as the circumstances need to be carefully reviewed. British citizenship may not be an automatic right; for example, it depends on where and when an applicant was born, and the parent’s or parents’ circumstances.

Minimum salary

Is there a minimum salary requirement for the main categories for company transfers?

There are minimum salary requirements applicable to the Tier 2 (ICT) subcategories. These vary depending on factors such as the length of the proposed UK assignment, type of role the non-EEA national will be undertaking in the UK and the subcategory under which he or she will be applying (typically £41,500 for the Long-term Staff subcategory and £23,000 for the Graduate Trainee subcategory). The Home Office publishes codes of practice that specify the minimum salary requirements for the role as well as minimum salary thresholds for the visa category. The employer should determine the relevant salary requirement for the sponsored worker by identifying the appropriate code that matches most closely to the proposed job. If the individual is working in the UK for less than 12 months, he or she will be assessed on his or her pro rata yearly earnings.

Resident labour market test

Is there a quota system or resident labour market test?

There is a quota system in the UK that applies to non-EEA nationals who are being sponsored under the Tier 2 (General) subcategory. The quota (annual cap) applies to migrants applying for a visa from outside the UK and earning a salary of less than £159,600 or those applying from within the UK and switching from the Tier 4 (Partner) category. The current quota limit is 20,700. There is also a limit of 2,000 places per year for individuals applying under the Tier 1 (Exceptional Talent) category.

The UK also requires a resident labour market test (advertising) to be completed for Tier 2 (General) applications unless the role qualifies for an exemption. Employers must demonstrate that they have advertised the vacancy to the resident labour market for a minimum of 28 days via two specific mediums and have been unable to find a suitable settled worker. The medium of advertising is dependent on the salary for the role being advertised.

Shortage occupations

Is there a special route for shortage occupations?

A Shortage Occupation List (SOL) exists in the UK; there is one list for the whole of the UK and an additional list for Scotland. The SOL was reviewed by the Migration Advisory Committee (MAC) in May 2019 after an extensive period of consultation. As the previous SOL was reviewed in 2013, significant changes were anticipated to ensure the list reflects and meets the needs of the UK labour market today. The recommendations see an expansion of the existing SOL from around 1 per cent of employment to around 9 per cent. Noteworthy recommendations include the addition of occupations in health, information technology and other science, technology, engineering and mathematics fields.

Roles that appear on the SOL benefit from a number of exemptions when sponsoring non-EEA nationals under the Tier 2 (General) category. For example, shortage occupation roles are not subject to the resident labour market test, and are exempt from the minimum income threshold applicable for settlement applications.

While the MAC’s findings are positive news for employers, it should be noted that these are only recommendations. The Home Office will need to accept the recommendations and implement these before they can take effect; it is not yet clear how quickly the MAC’s recommendations on the SOL will be taken forward.

Other eligibility requirements

Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?

The skill threshold for Tier 2 employment requires that a role is Regulated Qualifications Framework level 6 or above. Individuals must have worked for the company for at least 12 months directly prior to a transfer if they will be applying under the Tier 2 (ICT: Long-term Staff) subcategory, unless they are earning over £73,900. The Tier 2 (ICT: Graduate Trainee) subcategory requires that the individual must have been employed by the company for a minimum of three months prior to the transfer.

Under the Tier 2 (General) subcategory, individuals must be able to demonstrate their competence in the English language.

Individuals applying under both categories must demonstrate that they have sufficient funds to maintain and support themselves and any dependants in the first month without having to resort to public funds. Employers are also able to certify this requirement for any Tier 2 migrants.

Third-party contractors

What is the process for third-party contractors to obtain work permission?

A third-party contractor may work on another company’s premises if there is a contract in place that enables the work to be undertaken. The sponsoring company must have full responsibility and control for the contractor’s duties, functions and output while they are working on the client company’s site.

If the contractor’s duties or responsibilities fall outside the scope of the contract between the client company and the sponsoring company, the contractor may have to be sponsored directly by the client company.

Recognition of foreign qualifications

Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?

Individuals are no longer required to claim points for qualifications under the Tier 2 category. However, sponsors must be able to show that the individuals are suitably qualified for the role they are undertaking in the UK and they may still need to rely on their degree to meet the English language requirement.

In addition, individuals switching from the Tier 4 (Student/General) subcategory into the Tier 2 (General) subcategory within the UK will need to show that they have been awarded their degree, unless they are completing a PhD.

Individuals applying under the Innovator or Start-up visa categories will need to be endorsed by the relevant competent body as designated by the Home Office. Each of the competent bodies has their own requirements, which take into account the individual’s qualifications, skills, career history and potential contribution to the UK.