The key changes include the following:

Tier 2 (General) - removal of the requirement that a migrants salary must be paid in the UK. This means that both Tier 2 (General) and Tier 2 (ICT) sponsored migrants may be paid by overseas branches of their company.

Tier 2 (General) Resident Labour Market Test (RLMT) - an exemption from advertising in Job Centre Plus has been introduced where:

  • the job is in the role of director, chief executive or legal partner; and/or the salary package for the job is £130,000 or above and/or where there will be stock exchange disclosure requirements
  • the migrant has been recruited as part of a job fair and the sponsor signed a Certificate of Sponsorship to the migrant on or before 31 August 2009.

Tier 2 (General) - a temporary exemption has been introduced from the time limit on assigning a Certificate of Sponsorship to a migrant who is being recruited via a job fair.

  • There is a change to the time limits for assigning a Certificate of Sponsorship to a migrant who will be employed as a research fellow. The certificate must now be assigned within 12 months of the start of the recruitment exercise (an increase from six months). In addition, sponsors can exceptionally assign a certificate where the recruitment exercise commenced more than 12 months ago but only where the migrant will start work on or before 31 December 2009.

Tier 2 (General) - where the migrant is switching from:

  • Tier 1 (Post Study Work); or
  • the International Graduates Scheme; or
  • the Fresh Talent Working in Scotland Scheme; or
  • the Science and Engineering Graduate Scheme.

There is also the removal of the requirement that the migrant provide a letter from their Tier 2 sponsor giving verification of employment within the sponsor organisation for the last six months immediately prior to their application for leave.

Tier 2 (ICT) - an additional requirement has been introduced that a migrant employed under Tier 2 (ICT) must not be directly replacing a settled worker. However, this does not mean that a resident labour market test will need to be carried out for Tier 2 (ICT).

Tier 2 (ICT) - the qualifying period where the migrant must have worked for the sponsor organisation before being allowed to enter the United Kingdom under Tier 2 (ICT) will be extended where the migrant has had a period of maternity, paternity or adoption leave. In such cases the applicant must have worked with the organisation for at least six of the last18 months.

Tier 2 (ICT) - changes have been made to the rules on allowances paid to migrants as part of their salary package.

  • removal of the link to the intent to claim tax relief
  • recognition that short-term accommodation costs can be higher, UK Border Agency (UKBA) allows 40% of the migrants gross salary to be paid in accommodation allowances, but only where the migrant is applying from outside of the United Kingdom and their Certificate of Sponsorship is for 12 months or less.

Tier 2 (General and ICT) - the new guidance confirms that the letter issued to the migrant to confirm that the sponsor is certifying their maintenance must include the migrants Certificate of Sponsorship reference number.

Further changes have been made to Tiers 4 and 5 – for further guidance on the changes under these Tiers, please contact your Wragge & Co representative.

Migration Advisory Committee (MAC) Report

On September 7 the Government announced its decision to accept recommendations by the Migration Advisory Committee (MAC) to further changes within the Points Based System. No timescale has yet been given for implementation of the changes.

The following recommendations are made with regard to the design and operation of Tier 2:

  • UKBA considers whether specific professional qualifications should be regarded as equivalent to National Vocational Qualification (NVQ) level 3, or bachelors or masters degree level when allocating points under the PBS
  • Masters degree be awarded 15 points in Tier 2, instead of the current 10 points
  • A requirement that migrant workers outside of the EU will earn £20,000 and workers without qualifications earn at least £32,000
  • A new category to be established for key public service workers, with an added five points
  • In terms of the Resident Labour Market Test route, the MAC recommends that:
    • the route be kept in place
    • the required duration of vacancy advertising be increased to four weeks for all jobs
    • the Government considers the scope for introducing a certification regime for at least those employers identified as high risk.
  • In terms of the intra-company transfer route, the MAC recommends that:
    • the route be kept in place
    • the route should not lead to a right to permanent residence
    • the qualifying period with the company overseas is extended from six to 12 months
  • A separate scheme is created for graduates only which would require three months prior experience with the company, but with a maximum stay in the UK of 12 months
  • The Government gives consideration to whether the level of resource currently being devoted to enforcement of the intra-company transfers route is sufficient and whether the degree of transparency around enforcement of the system could be increased.

Wragge & Co's immigration experts provide action points for employers to consider in light of the changes.