Tier 2 of the Points Based System was introduced by Statement of Changes in the Immigration Rules HC 113 in November of 2008. Because Tier 2 replaced the long-standing work permit regime the new Immigration Rules made provision for people who were in the UK with leave to remain as the holders of work permits to be granted sufficient leave to remain either as Tier 2 (General) or Tier 2 (Intra Company Transfer (ICT)) migrants, bringing their aggregated leave to remain in the UK to a total of five years.
The people to whom these provisions applied were Business and Commercial work permit holders (including ICT work permits), Sports and Entertainment work permit holders, Jewish agency employees, or members of the operational ground staff of an overseas-owned airline as well as ministers of religion, missionaries or members of a religious order.
People with leave to remain in these now deleted categories would not have to meet the comparatively stringent new Tier 2 (General) migrant criteria. The transitional provisions therefore ensured that their eligibility (and that of their family members) to apply for indefinite leave to remain after five years' continuous lawful residence in the UK would not be jeopardised.
The explanatory notes to the statement of changes put it like this:
6.13 The new Rules for Tier 2 (General) and Tier 2 (Intra-Company Transferee) include transitional arrangements to minimise their impact on existing work permit holders. Provided they are working for the same employer, their job meets our skill level requirements and their employer has obtained a sponsor licence, these migrants will be able to extend their stay in the UK up to a total of five years without having to meet the specific Tier 2 criteria for qualifications, prospective earnings and English language.
According to an announcement on the UKBA’s website this week however it appears that extensions of “up to a total of five years” were not always granted, and that some people were given an “incorrect extension”.
The Agency has therefore announced that arrangements will soon be made to enable such people to get additional leave to remain to take their total leave to the total of five years. There will be no charge for applications made in accordance with these arrangements. Neither will applicants be required to obtain a further Certificate of Sponsorship.
The criteria for applying are specified on the UKBA website. It will be open to anyone affected to apply for additional leave to remain on the appropriate form from “early August 2011”.
It’s impossible to know the extent of these incorrect extensions – but anyone who thinks they may have not been granted the leave to remain to which they were entitled when they applied for leave to remain under Tier 2 is strongly advised to obtain professional legal advice so that full advantage is taken of the UKBA’s announcement.