On February 16, the UK government announced further details of the Tier 2 system that will operate from April 6. The principal change is the creation of two classes of certificates, instead of the current one class. The challenges for sponsors will be remembering which to use when and preparing for the business-planning uncertainties the new system will create.
Restricted and Unrestricted Certificates
The government will permit only 20,700 Tier 2 migrant workers to come to the United Kingdom to work during the year from April 6, unless workers fall into one of the specific exceptions to this quota. As a result, Tier 2 certificates of sponsorship will be either quota-related (restricted) or quota-exempt (unrestricted) starting April 6. The United Kingdom Border Agency (UKBA) will allocate an annual supply of unrestricted certificates to Tier 2 sponsors, and sponsors will continue to be able to request more if required during the year. UKBA will allocate restricted certificates to sponsors on a case-by-case basis under the monthly allocation procedure described below. Just as now, sponsors must ensure that they do not issue a certificate, whether restricted or unrestricted, unless the requirements for doing so are satisfied.
Unrestricted certificates are Tier 2 certificates of sponsorship that sponsors can issue in situations outside the government's Tier 2 quota. Just as now, sponsors will issue unrestricted certificates without UKBA's prior permission. The challenge will be remembering those situations when a sponsor can issue an unrestricted certificate and when a restricted certificate will be required. With some exceptions, employees for whom a sponsor will be able to issue unrestricted certificates from April 6 include:
- Intra company transfers
- Workers taking positions with a salary of at least £150,000 (who can also be recruited without sponsors' undertaking a resident labour market test)
- Existing Tier 2 workers extending their stay with their current employer
- Existing Tier 2 workers extending their stay by switching to a new employer
- Workers in another category switching in-country to Tier 2 (General) status
- Workers in another category applying for Tier 2 status under one of the existing transitional arrangements.
UKBA will contact all Tier 2 sponsors in the near future to determine the appropriate number of unrestricted certificates they will need for the year beginning April 6.
Restricted certificates will be required for all Tier 2 positions that do not fall within the specific situations in which a sponsor can issue unrestricted certificates. Sponsors will apply on a monthly basis for 4,200 restricted certificates in April and 1,500 per month after that. When UKBA receives fewer applications than restricted certificates available, UKBA will add the surplus to the next month's quota. When applications exceed a month's quota, UKBA will give precedence to applications ranked according to points scored for shortage occupations, for Ph.D.-level positions, for positions for which a sponsor has conducted a resident labour market test, and by the salary level offered. UKBA will not carry over unsuccessful applications to the next month. Rather, sponsors will have to apply again.
Intra Company Transfers (ICT)
The announcement this month confirms and supplements the changes to this category flagged by UKBA in December. The following changes will take effect from April 6:
- All Tier 2 positions must be on a new "Graduate Occupation List" for a certificate to be properly issued.
- Tier 2 (ICT) employees with salaries between £24,000 and £40,000 will be able to work in the United Kingdom for up to twelve months only.
- Tier 2 (ICT) employees paid at least £40,000 will be permitted to work in the United Kingdom for up to three years with the possibility of extending for another two years.
- At the end of these respective maximum periods, a Tier 2 (ICT) worker must leave the United Kingdom and cannot apply again in the same sub-category for at least twelve months.
The Tier 2 requirements that come into force on April 6 will not apply to workers in Tier 2 status or work permit status before that date.
And Finally, We Are Not Alone
In a report on UKBA's staff and procedures, also published on February 16, the Independent Chief Inspector of UKBA stated:
"Staff found [Points-Based System] policy guidance confusing, inconsistent and lacking defined terms. We were also made aware of problems encountered due to frequent changes to policy guidance, and the often short notice given of these changes."