The UK Border Agency has now provided further clarification on the operation of the annual limits which will come into effect on 1 April 2011.
The Tier 1 (General) route will be closed. However, individuals currently in the UK will be able to extend under the current rules in force.
The Tier 1 (Entrepreneur) route will be reformed to make it more attractive. It will be more flexible and will create a new avenue for promising start-up companies which do not meet the investment threshold.
The Tier 1 (Investor) route will also be reformed to offer an accelerated route to settlement, depending on the level of investment.
The Tier 1 (Entrepreneur) and Tier 1 (Investor) routes will not be subject to a limit on numbers.
A Tier 1 route for persons of exceptional talent will be introduced. This will cover migrants who have won international recognition in scientific and cultural fields, or who show sufficient exceptional promise to be awarded such recognition in the future. Applications by those with exceptional promise will need to be endorsed by a competent body in the relevant field. The 'exceptional talent' category will be subject to a limit of 1,000 places. Tier 2 will continue to be open to migrants working in these fields.
The Tier 2 (General) route will be subject to a limit of 20,700 places for 2011/12.
This limit will not apply to in-country applications from those already here, or dependants. Nor will it include Tier 2 (General) applicants who are filling a vacancy with a salary of more than £150,000. The Tier 2 (Sportsperson) and Tier 2 (Minister of religion) routes will also be exempt from the limit.
The limit will not include those applying under the Tier 2 (Intra Company Transfer) category. Intra-company transferees in the 'Established Saff' sub-category paid more than £40,000 will be able to stay in the UK for up to 5 years; those paid between £24,000 and £40,000 will be able to enter for up to 12 months within a specified period. The current rules will continue to apply to Tier 2 (Intra Company Transfer) migrants in the 'Graduate Trainee' and 'Skills Transfer' sub-categories.
Tier 2 (General) applications will be restricted to graduate-level vacancies. The Migration Advisory Committee will advise the UK Border Agency on what are to be considered graduate-level jobs, and the shortage occupation list will be amended accordingly. Existing Tier 2 (General) migrants in jobs below graduate level will be able to extend their permission to stay if they meet current requirements.
The minimum level of English language competency for Tier 2 (General) applications will be increased from basic to intermediate level (B1 on the Common European Framework of Reference).
Applications for certificates of sponsorship will, where the limit applies, be considered on a monthly basis. If the monthly allocation is oversubscribed, applications will be ranked according to:
- shortage occupations in the first instance;
- whether the post requires higher academic qualifications; and
Potential workers who are granted a certificate of sponsorship will have 3 months in which to apply for a visa.
There will be a new criminality threshold, requiring applicants to be clear of unspent convictions, for all those applying for settlement.
Tier 1 and Tier 2 migrants applying for settlement will need to meet the salary criteria that applied when they last extended their permission to stay.
Although the ICT route appears to have been tightened, many UK businesses will continue to be able to transfer overseas employees to work for linked companies in the UK.
However, despite the government's announcement on the permanent limit there is still much work to be done. The general consensus is that there are certain areas which still need addressing most notably ICTs who fall within the salary banding 24k to 40k but who wish to remain here for longer than 12 months. Pressure will continue to be brought on the government to be more flexible in this regard with a view to the 12 month period being increased to 18 months in light of the expense involved in transferring workers to the UK, and in some cases, where this will have an adverse affect because of tax implications.
There will be various discussion groups with the UK Border Agency which Kingsley Napley will be involved in on how best to implement this new policy, thus ensuring that UK businesses are aware of procedures and guidance in advance of April 2011.