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Tier 2 (Sponsored skilled workers)

The Tier 2 regime was extensively restructured by Statement of Changes to the Immigration Rules HC 863. The changes took effect on 6 April 2011. They include the annual limit on applications for entry clearance to come to the UK under the Tier 2 (General) route and the requirement that all Tier 2 (General) Migrants must be employed in "graduate level" jobs. 

The structural changes to Tier 2 which took place in April of 2011 are built upon in new changes in the Immigration Rules (HC 1888) effective from 6 April 2012.The subcategories of Tier 2 remain as before, but a maximum period of leave to remain as a Tier 2 General Migrant of six years has been implemented.

HC 1888 also indicates that with effect from April of 2016 Tier 2 Migrants seeking indefinite leave to remain will have to be earning at least the appropriate salary for their job as set out in Codes of Practice which are published on the UK Border Agency website or £35,000, whichever is the higher figure.

 

There are four subcategories of Tier 2 migrants. These are:

• Tier 2 (General) - for skilled workers coming to do jobs that cannot be filled from the resident labour market and also for shortage occupations
• Tier 2 (Intra-Company Transfer) - for skilled workers moving from a branch of a company located outside the European Economic Area (the EEA) to a UK branch of the same company
• Tier 2 (Minister of Religion) - for people to work as religious workers with recognised religions. This subcategory includes preachers and pastoral workers
• Tier 2 (Sportsperson) - for people and their coaches who are established at the highest level internationally in their sport.

In common with all tiers of the Points-Based System other than Tier 1, all applicants seeking entry clearance or leave to remain under one of these routes must be "sponsored". The Immigration Rules which apply to their applications require them to be issued with a "Certificate of Sponsorship" or "COS" by a sponsor licensed as appropriate by the United Kingdom Border Agency. Possession of a COS will provide the applicant with the necessary number of points for "Attributes" which are indicated at Appendix A to the Immigration Rules. Appendix A sets out detailed limitations on the award of points, and effectively defines what an applicant’s Certificate of Sponsorship must represent.

All applicants for leave to enter or remain under any subcategory of Tier 2 must score points for competence in the English language (Appendix B of the Rules), and must show that they have the ability to support themselves for the first month of their stay in the UK (Appendix C). If their Sponsor is A-graded the necessary points for Appendix C can be scored by the sponsor's issuing a guarantee to maintain and accommodate the migrant if this is necessary.

Tier 2 (General)

Tier 2 replaced the Work Permits regime in November of 2008. It enables UK-based employers to sponsor people from outside the EEA to come and work in the UK.

Applicants for entry clearance are subject to an annual limit. This is achieved by the UKBA’s limiting the amount of COSs which sponsors can issue in any one month. 

The limit is broken down into monthly allocations. Employers wishing to sponsor Tier 2 (General) applicants therefore have to apply to the UKBA for a proportion of the monthly allocation. A further points-scoring system has been established to determine which employers will succeed in obtaining Certificates of Sponsorship at each monthly allocation.

Applications for leave to remain in the UK are not subject to any limit. Neither are applications for entry clearance if the applicant is to earn £150,000 or more annually.

To succeed in their applications all applicants must be sponsored to do work for which they will be paid a minimum salary of £20,000. Moreover the level of salaries must be consistent with the UKBA’s published codes of practice relevant to defined areas of work.

The UKBA also publishes a list of "shortage occupations”. People who intend to work in these areas do not need to satisfy a "resident labour market test”.

Certificates of Sponsorship issued to applicants seeking to work in the UK in areas outside the shortage occupations must indicate that a resident labour market test has been carried out to demonstrate that there is no domestic labour available to fill the proposed employment. The UKBA’s published codes of practice determine the salary level at which any job must be advertised in order to comply with the necessary resident labour market test.

The codes of practice also stipulate the organs of the trade press in which a particular job must be advertised, although since April of 2009 the UKBA has required all jobs to also be advertised in Jobcentre Plus.

Tier 2 (General) migrants seeking to extend their leave to remain and who are continuing to work for the same employer similarly do not have to satisfy a resident labour market test.

All applicants must also satisfy an English language requirement, demonstrating that they have a command of English at an "intermediate” level. The level is B1 of the Council of Europe’s Common European Framework for Language Learning:

"Can understand the main points of clear standard input on familiar matters regularly encountered in work, school, leisure, etc. Can deal with most situations likely to arise whilst travelling in an area where the language is spoken. Can produce simple connected text on topics which are familiar or of personal interest. Can describe experiences and events, dreams, hopes and ambitions and briefly give reasons and explanations for opinions and plans."

(Until the changes in April 2011 Tier 2 (General) applicants only needed to have a command of English at a basic user standard.) Applicants for leave to remain who were granted entry clearance under the pre-April 2011 Rules are exempt from the requirement to satisfy level B1 of the Council of Europe’s Common European Framework for Language Learning).

Details of how applicants must meet this language requirement as well as which applicants are exempt from it (either due to their coming from English-speaking countries or to their having obtained certain qualifications) are set out in Appendix B of the Immigration Rules.

All applicants must satisfy a maintenance requirement. Applicants for entry clearance must show that they have funds of £800 or more at the time of their applications. Applicants whose Tier 2 sponsors certify in the Certificate of Sponsorship that they will if necessary maintain and accommodate the applicant for the first month of the applicant’s employment are exempt from this requirement, as are applicants seeking to extend their existing leave to remain under Tier 2.

There are detailed transitional arrangements whereby Tier 2 (General) migrants, and those in the immigration categories which preceded Tier 2 (such as Work Permit Holders) who are already in the UK under the Immigration Rules in place before 6 April 2011 are able to apply to extend their stay without being subject to the annual limit, the new graduate-level job requirement, the new salary threshold, or the new English language level. This applies whether they are extending with the same employer or changing employers.

Successful applicants for entry clearance will be given leave to enter the UK for the duration of their employment plus 1 month, up to a maximum of 3 years plus 1 month.

The amount of leave to remain given to successful applicants for further leave to remain varies according to the nature of the applicant’s previous leave to remain. Applicants who previously had leave to remain under the immigration categories which preceded Tier 2 will generally be given sufficient leave to remain to take their aggregated leave to remain to a total of 5 years. Where the applicant is a Tier 2 migrant and is working for the same employer and doing the same job as he or she was doing when previously granted leave, the amount of leave to remain will be for the period of employment plus 14 days up to a maximum of 2 years. Everyone else will get leave for the period of their employment plus 14 days, up to a maximum of 3 years.

Applicants granted leave to enter or remain must not have recourse to public funds and must not work for any other employer other than their Tier 2 sponsor.

Tier 2 (Intra-company Transfer)

Tier 2 (Intra-Company Transfer) migrants are skilled workers moving from an overseas branch of a company to a UK branch.

Certificates of Sponsorship issued to applicants in this category of Tier 2 do not have to include any resident labour market test. Neither is there any limit in force relating to the Tier 2 (Intra-Company Transfer) category.

There are 4 subcategories of Tier 2 (Intra-Company Transfer). Applicants in the Short and Long Term Staff subcategories must have been working for the company for a period of not less than 12 months prior to their applications. These subcategories are for people coming to work in the UK in a capacity which could not be filled by a recruit from the company’s UK workforce. Short Term Staff come to the UK for less than 1 year, and Long Term Staff for more than 1 year.

Long Term and Short Term Staff are themselves subcategories of the "Established Staff” subcategory of Tier 2 (Intra-Company Transfer). The Established Staff subcategory was subdivided in this way in the changes which came into force in April of 2011.

Applicants in the Graduate Trainee subcategory have to have been working for the company for a period of not less than 3 months. Skills Transfer applicants only need to show that they are employed by the company at the time of their application.

Applicants in the Long Term Staff subcategory must be paid the appropriate UK-equivalent annual salary for their job, which must be at least £40,000. They are admitted to the UK initially for a maximum period of 3 years and 1 month. This period may be extended, on application, to a maximum period of 5 years, after which the Tier 2 (Intra-Company Transfer) migrant must leave the UK. He or she cannot return as a Tier 2 (Intra-Company Transfer) migrant for a period of 12 months. (There is however no bar on making other applications for entry clearance.)

Annual salaries for Short Term Staff must be at the appropriate UK level for their job and must not be less than £24,000. Short Term Staff are admitted to the UK for a maximum period of 12 months, after which they must leave the UK, with a bar on their returning in the Short Term Staff subcategory for a further period of 12 months.

Applicants in the Graduate Trainee and Skills Transfer subcategories must also be paid an annual salary of at least £24,000. They are admitted to the UK for a maximum period of 12 months and 6 months respectively, after which they must leave the UK. They are not allowed to return in either of these subcategories or as Short Term Staff for a period of 12 months.

However, a Tier 2 (Intra-Company Transfer) migrant who has previously had leave in one of the Short Term Staff, Graduate Trainee or Skills Transfer subcategories will not be required to spend 12 months outside the UK before they can return in the Long Term Staff subcategory.

Tier 2 (Intra-Company Transfer) migrants who are already in the UK under the Rules in place before 6 April 2011 will be able to apply to extend their stay without being subject to the new graduate-level job requirement or the new salary thresholds. Those who are currently here in the Established Staff subcategory can continue to apply to extend their stay beyond five years.

There is no language requirement to be met by applicants in the Tier 2 (Intra-Company Transfer) category unless their leave in the UK exceeds 3 years in total. As with Tier 2 (General), the requirement is for a command of English language at level B1 of the Common European Framework.

Tier 2 (Intra-Company Transfer) migrants have to meet a maintenance requirement. Applicants for entry clearance must show that they have funds of £800 or more at the time of their applications. Applicants whose Tier 2 Sponsors certify in the Certificate of Sponsorship that they will, if necessary, maintain and accommodate the applicant for the first month of the applicant’s employment are exempt from this requirement, as are applicants seeking to extend their existing leave to remain under Tier 2.

Tier 2 (Minister of Religion)

Those applying as Ministers of Religion must satisfy an appropriate resident labour market test and must have a command of the English language higher than that for applicants under the other subcategories of Tier 2. Complicity with these requirements will gain applicants the necessary points under Appendices A and B of the Rules.

Tier 2 (Sportsperson)

This subcategory is for people whose employment in the UK will make a significant contribution to the development of their sport at the highest level in the UK. The class of applicants is effectively defined by their sponsors, which generally will have been approved by the sport's governing body.

Indefinite leave to remain

With the exception of Tier 2 (Intra-Company Transfer) migrants whose initial grant of leave postdates 6 April 2011, all Tier 2 migrants can apply for indefinite leave to remain after they have completed a period of 5 years' lawful residence in the UK.

However the sponsor that issued the Certificate of Sponsorship that led to the applicant's last grant of leave must certify in writing that the applicant is still required for the job the applicant does and, in the cases of applications for indefinite leave to remain made by Tier 2 (Intra-Company Transfer) migrants and Tier 2 (General) migrants, that the applicant is paid at or above the appropriate rate for the job as stated in the codes of practice for Tier 2 sponsors published by the UK Border Agency.

In all cases applicants for indefinite leave to remain must have sufficient knowledge of the English language and must pass the UKBA’s life in the UK test, unless they are either under the age of 18 or over the age of 65 when applying for indefinite leave.

Family members of Tier 2 migrants

As with Tier 1 migrants, a Tier 2 migrant's family members can accompany the migrant to the UK. Each family member must satisfy a maintenance requirement under Appendix E of the Immigration Rules.

Statement of Changes HC 1888 has also implemented stringent new provisions in the Immigration Rules whereby the leave to enter or remain granted to any Tier 2 General Migant who does not turn up for the work for which he or she is sponsored must be curtailed.