Tier 2 is the primary route for UK licensed sponsors to employ a non-EEA national from outside the settled workforce to fill a vacancy that cannot be filled by a resident worker.
The Tier 2 scheme is divided into 2 categories:
Tier 2 (General) which concerns new recruits.
Tier 2 (Intra Company Transfer), which concerns existing overseas employees.
To transfer an existing overseas employee or recruit a foreign national, the employer will need to issue a certificate of sponsorship (CoS) via the Home Office’ s online management system (SMS).
Tier 2 (General)
There is an annual limit on the total number of CoS available to sponsors under Tier 2 (General). For the year from 6 April 2014 to 5 April 2015, the total number available is 20 700 with a monthly allocation of approximately 1500 certificates.
This limit applies only to CoS for new hires earning under £155 300 per year coming to start work in the UK from overseas. The Home Office refers to these as ‘restricted jobs’ for which a ‘restricted’ CoS is required.
The following groups are exempt from the limit and are referred to as ‘unrestricted jobs’ for which an ‘unrestricted’ CoS is required;
- new hire – migrant coming from overseas but the annual salary for the job is £155 300 or more;
- extension – migrant already in the UK working for the sponsor as a Tier 2 (General) or as a Work Permit Holder;
- changes of employment – migrant is already in the UK as a Tier 2 (General) or as a Work Permit holder and wants to: – change jobs with the same sponsor and the new job is in a different SoC code or- start work for a new sponsor;
- switching immigration category – migrant is already in the UK under another immigration category and is eligible to switch into Tier 2 (General) – for instance from Tier 4 Student or Tier 1.
Licensed sponsors are issued with a CoS annual allocation of unrestricted CoS for them to use throughout the year at their own discretion.
Restricted CoS are granted by the Home Office on a case by case basis.
Every month on a set and published date (currently on the 11th of each month), the Home Office will consider all applications for a restricted CoS and set these applications against ranking criteria that will predominately relate to salary. Therefore, licensed sponsors should be aware that the higher the prospective migrant’s restricted CoS ranks, the higher the likelihood that the Home Office will allow the sponsor to grant a restricted CoS.
Restricted certificates will only be granted if the sponsor can demonstrate that they have conducted a resident labour market test (RLMT) in relation to the vacancy. That is, of course, unless the vacancy is on the shortage occupation list, which in this case does not require to be advertised.
Underpinning restricted CoS applications is a points table that allows points to be awarded from a minimum of 32 points for a restricted CoS application (that has passed a RMLT), and attracts a salary of £20,800, to a maximum of 60 points for a restricted CoS application (that has passed a RLMT), and attracts a salary of between £100,000 and £155,299.
Additional points are awarded to roles on the shortage occupation list and roles that on the PhD list and have passed a RLMT.
Following approval of a restricted CoS application, the licensed sponsor is required to assign the restricted CoS within three months of its allocation by the Home Office. Failing this it will have to be returned to the Home Office so that it can be used in subsequent monthly allocations.
Licensed sponsors should be aware that if they have applied for restricted CoS, but have not been granted, they will need to re-apply on the following month as request for restricted CoS are not automatically carried forward.
HOW TO CARRY THE RESIDENT LABOUR MARKET TEST (RLMT) FOR TIER 2 GENERAL
Unless an exemption applies all jobs must be advertised to settled workers for 28 calendar days.
The RLMT will not be needed for:
- if the migrant is already working for the sponsor and they need to extend their leave to continue working for them in the same occupation;
- if the role is one of the shortage occupations as listed on the Home Office’s official list;
- if the migrant holds a Post-Study Work visa (i.e. Tier 1 Graduate Entrepreneur visa, Tier 1 Post-study work, Tier 4 migrant);
- if the migrant is a high earner with a total salary package of £155,330 or above
Sponsors can advertise jobs in two ways:
a) Advertise the vacancy for a single continuous period, with a minimum closing date of 28 calendar days from the date the advertisement first appeared.
- b) Advertise the vacancy in two stages, with each stage being advertised for no fewer than 7 calendar days but where both stages total a minimum of 28 calendar days. For example, a sponsor could at first advertise the vacancy for 14 calendar days and appoint any suitable settled worker who applies. If no suitable settled worker applies, they cannot appoint a migrant worker at this stage as they must advertise the vacancy for a further 14 calendar days, making 28 calendar days in total. If no suitable worker settled applies during either the first or second stage, then the resident labour market test has been passed and the sponsor can appoint a Tier 2 migrant.
The sponsor must place two advertisements using the methods set out in the Home Office’s guidance. In many cases, one of those will be an online advertisement using the Jobcentre Plus Universal Jobmatch service or Jobcentre.
The following jobs are not required to be advertised on Job Centre Plus Universal Jobmatch:
- Jobs that fall within the PhD level SoC codes;
- Jobs where the annual salary package will be £72,500 or more;
- Milkround recruitment excercises;
- Jobs that are exempted from the RLMT (see above list).
When carrying out the resident labour market test, the sponsor must ensure that the job advertisement includes:
-the job title;
- -the main duties and responsibilities of the job (i.e. job description);
- -the location of the job;
- -an indication of the salary package or salary range or terms on offer;
- -skills, qualifications and experience needed; and
- -the closing date for applications, unless it is part of a rolling recruitment programme – if it is a rolling recruitment programme, the advertisement should show the period of the recruitment programme.
For vacancies advertised on the internet, the sponsor must keep a screen shot from the website hosting the advertisement, on the day the vacancy is first advertised which clearly shows:
- the name of the website; and
- the contents of the advert; and
- the date and the URL; and
- the closing date for the applications.
The screen shot must be of the live advertisement visible to the general public on the day the advertisement is posted.
A sponsor cannot refuse to employ a settle worker if they lack qualifications, experience or skills (including language skills) that were not asked for in the job advertisement.
Preference must be given to settled workers. The Home Office’s guidance dictate that when a sponsor finds that they have more than one candidate with all the necessary skills and experience advertised for, where one is a settled worker and the other a migrant, the sponsor must appoint the settled worker even if the migrants is more skilled or experience. The only exception is if the job falls within one of the PhD SOC codes. In that case the sponsor can appoint a migrant if they are the most suitable candidate for the role.
MINIMUM SALARY REQUIREMENT
The lowest wage a Tier 2 (General) job can be paid is £20,800 (£20,500 if your certificate of sponsorship is issued before 6 April 2015) regardless of the occupation.
The minimum wage varies for each occupation and sponsors must refer to the relevant codes of practice to determine what will the minimum wage be for a particular occupation. The codes can be found on the UKVI’s website at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/419439/Codes_of_Practice_-_April_2015.pdf
The minimum wage associated to most occupations will be more than £20,800.
When the salary indicated is below £20,800, sponsors will still have to pay the migrant £20, 800 – the only exception to this applies to nurses and midwives who are working towards registration with the Nursing and Midwifery Council.
For example, from 6 April 2015, the minimum wage in table 2 (occupations skilled to NQF level 6 and above) for tax advisers is £19,800 for new entrants. If the migrant meets the definition of New Entrant the lowest wage they can be offered is £20,800. If they do not meet the definition of “new entrant”, the minimum wage they can be paid is £33,900 (the “experienced worker” rate).
Tier 2 (General) applicants who meet the definition of “new entrant” can rely on the lowest wage for each occupation, subject to a minimum of £20,800 (£20,500 if the certificate of sponsorship was issued before 6 April 2015).
A migrant will meet the definition of “new entrant” if they fall within one of the following categories:
- they are under 26 years old on the date when they make their Tier 2 immigration application;
- their Tier 2 sponsor recruited them by carrying out a university milkround;
- they meet the requirements of the post-study work RLMT exemption.
Tier 2 (General) Key Points
- RLMT will normally apply unless the migrant is: – a Post Study Work visa holder (including Tier 1 Graduate Entrepreneur); – a Tier 4 visa holder; – already working for sponsor and seeking to extend their leave doing the same job; – a suitable candidate for a job that is on the shortage occupation list: – a suitable candidate for a job that is on the PhD list; – offered the salary of £155 300 or above.
– Minimum annual salary package of £20,800 per annum or the minimum appropriate rate for the job as set out in the relevant code of practice or the shortage list, whichever is the higher.
- Job must be at graduate level or above (NQF level 6 and above).
- Will be assigned for any period of up to a maximum period of 5 years (9 years for high earners).
– English language requirements must be met – (a) national of an English-speaking country as defined by the Home Office, or (b) has studied for a degree via the medium of English, or (c) has passed an approved English language test (Common European Framework of Reference B1).
- This route leads to settlement (Indefinite Leave to Remain / Permanent Residency) with a minimum salary of £35 000 if applying on or after 6 April 2016, £35 500 if applying on or after 6 April 2018, £35 800 if applying on or after 6 April 2019, £36 200 if applying on or after 6 April 2020.
Recruiting / employing individuals under Tier 2 General is a complicated process with many procedures which must be followed precisely in order to comply with the Home Office’s rules and regulations. If you think that you might have to fill a role with a migrant worker it is important to consider this before advertising the post. A good place to start is identifying the SOC (Standard Occupational Classification Code) into which the job falls and the minimum salary that can be offered. Then you may want to check that the code is on the list of shortage occupations.
Recruiting migrants from within the UK
Employers must check the basis on which migrant workers already in the UK have permission to work for their current employer.
It is important to note that switching from a Tier 2 (ICT) to Tier 2 (General) while in the UK is not permitted. The migrant must leave and obtain a fresh visa from their home country This is something to bear in mind when interviewing as it is likely to impact on recruitment processes since the 12 month cooling off period will apply unless the salary offered is £ 155 300 or more.
If the migrant is in a category allowing them to switch to Tier 2 (General) within the UK, the sponsor should be able to issue them with an unrestricted certificate of sponsorship as long as the RLMT has been carried out correctly (when applicable).
Recruiting a migrant from outside the UK
Employers should enquire whether the migrant has worked in the UK within the last 12 month period and if so, on what visa. Any previous stays in the UK within the last 12 months under the auspices of a Tier 2 would be likely to trigger the 12 month cooling off period.
The RLMT will apply in most cases and a restricted CoS will have to be requested.
The ‘Cooling Off Period’
Under the Tier 2 ‘Cooling Off Period’ rules, migrants applying from overseas who have held a Tier 2 visa within the past twelve months will not be eligible to return to the UK on another Tier 2 visa for at least twelve months after either their previous visa expired, or the earliest date from which they can provide evidence that they had left the UK and have not since returned.
Similarly, migrants applying from within the UK who have held a Tier 2 visa within the past twelve months but switched out of Tier 2 into a different immigration category (e.g. Tier 1 or Tier 4) will not be eligible to switch back on to a Tier 2 visa for at least twelve months after they switched out of Tier 2.
The only three exceptions to the ‘Cooling Off Period’ are: – previous grants of Tier 2 leave of three months or less; – short term staff Tier 2 ICT returning as long term staff Tier 2 ICT; and high earners.
In practice the cooling off period is applied very strictly and can have serious consequences for Tier 2 sponsors and their employers.
For instance if you have a Tier 2 long term staff ICT working for you in the UK for more than 3 months and their job becomes permanent they will not be able to switch to Tier 2 General. Instead they would have to leave the UK and apply for Tier 2 General leave. That leave will not be granted unless they have completed the cooling off period i.e. spent 12 months outside of the UK or receive a salary of £155 300 or more.
However, you will note that ICTs who entered before 6 April 2011 do not need to leave after five years. This removes the need to switch categories although they cannot qualify for settlement (ILR) if they applied for entry clearance after 6 April 2010.
If you wish to recruit an ICT from another company you will only be able to do so if they entered with leave granted under the Rules in place before 6 April 2011. Those who have entered since that date will be barred from switching employer and will only be able to enter with a Tier 2 visa after completing the cooling off period, if applicable.
The information contained in this website is provided by ECS Ltd for informational purposes only, and does not constitute legal advice. For legal advice contact a UK Immigration Lawyer or a OISC Immigration agent or the Home Office directly.