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Immigration law – Tier 2 of the new points based system explained
27 November 2008
The new points based immigration
system (PBS) was introduced in February 2008. There are now
five Tiers under which a non-EEA migrant worker might obtain entry
clearance to the UK. The ‘Tiers’ are being rolled out in
stages. Tier 1 (highly skilled migrants that will contribute
to growth and productivity) was introduced on 30 June 2008. Tier 2
(skilled migrants with a job offer to fill gaps in the UK labour
force) will be rolled out today, 27 November 2008.
Who will fall in Tier
2?
Those individuals that fall within the
following sub-categories will need to apply under Tier 2:
- Tier 2 (general) – for those medium to highly skilled workers
who have received a job offer from a UK employer
- Tier 2 (intra-company transfer) – whereby overseas companies
can transfer medium to highly skilled employees who have worked for
them for at least six months, to work for the same company in the
UK
- Tier 2 (ministers of religion) – for ministers with a pastoral
role
- Tier 2 (sports people) – for players and highly skilled
coaches
What do we need to do to recruit a
non-EEA migrant under Tier 2?
- All Tier 2 migrants need a sponsor to enter and work in the
UK. In order to become a sponsor you must make an application
for a licence to sponsor. Your application must be completed on the
UK Border Agency (UKBA) website.
- Once you have made the application, you must send any
supporting documents to the UKBA together with the relevant fee,
within 10 working days. The fee is £300 if you are a small
sponsor and £1,000 for all other sponsors. The UKBA
will then decide whether or not to grant a licence, which may
involve an on-site visit.
- Once licensed, you must issue a certificate of sponsorship to
the prospective employee. Each certificate of sponsorship
costs £170.
- The migrant will then be assessed under the PBS to ensure that
they have enough points to enter the UK. It is advisable to check
that he/she meets the requirements of the PBS before obtaining a
licence and issuing a certificate of sponsorship (see below).
- The UKBA will then make the final decision about whether the
migrant can come to or stay in the UK. Successful applicants
will initially be given permission to stay for up to three years,
depending on the length of their expected employment here.
They can apply for an extension to stay thereafter for up to two
years.
What do we need to know before we
apply for a licence to sponsor?
With the right to sponsor come tough controls
on employers by the UKBA. You will have to comply with the
following duties, as a minimum:
- Record keeping duties (e.g. contact details, copy of
immigration status document, copy of ID card)
- Reporting duties (e.g. providing UKBA with information about
the Employees’ non-attendance, non-compliance or
disappearance)
- Comply with immigration legislation
- Co-operate with any UKBA requests
The UKBA will monitor you and has the right to
come and inspect you to ensure compliance with the terms of the
licence; such an inspection could be unannounced. A
failure to comply could result in a penalty of up to £10,000 per
migrant, the licence being withdrawn, and/or a ban on the ability
to employ migrant workers at all.
How does a migrant qualify under Tier
2?
Even if you decide to apply for a licence and
are successful, the migrant will only be permitted to come and work
for you if the prospective role is at skill level S/NVQ 3 or above;
the role meets the resident labour market test or is on the
shortage occupation list or is an intra-company transfer; and
he/she will be paid a salary at the appropriate rate
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