The UKBA panel which is meant to consider applications under the 'exceptional' consideration process for tier 2 has this week dealt with requests from sponsors which were filed before 25 August. The panel consists of three senior representatives from UKBA's sponsor licensing unit, a representative from the Department for Business Innovation and Skills (BIS) and a representative from the MAC secretariat.

Unfortunately the panel appears to have decided to refuse all applications (including where the role is on the shortage occupation list) other than those where an extension under tier 2 or the work permit scheme for an existing worker is required. This is an extremely disappointing outcome which leaves many businesses and individuals who need tier 2 general certificates in a state of limbo.

We have explained to UKBA that under the law as it currently stands they do not have the authority to act in this manner. We have made several suggestions to them, including looking at business cases filed in support of applications, in the hope that they will make urgent changes to the process so that litigation can be avoided. In our opinion, it is very important that business cases are submitted with applications because where refusal decisions are referred to the courts, it is more likely that claimants will be granted urgent interim relief where there is a solid business case. In such cases the urgent relief we will be seeking will be a court order requiring UKBA to enable the sponsor to issue the certificate.

In the meantime where an urgent decision is genuinely required and the application is put directly to the Deputy Director of Sponsorship (or a nominated director), these cases are more likely to be approved.