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Immigration law changes announced
11 September 2009
Less than a year after it was introduced, the Migration Advisory
Committee (MAC) recommended a number of changes to Tier 2 of the
points based system (PBS). The government has just announced that
these recommendations will be accepted in their entirety and will
be enforced in 2010.
What is Tier 2 of the PBS?
Tier 2 is the route by which ‘skilled’ migrants with a job offer
come to the UK to fill gaps in the UK labour force. Under Tier 2,
an employer wishing to recruit a skilled migrant must first apply
to the UK Border Alliance (UKBA) for a licence to sponsor. Once
they have been granted a licence, they can start issuing
certificates of sponsorship to the skilled workers that they wish
to recruit. The skilled worker will then need to apply for entry
clearance and obtain the requisite 50 points.
Tier 2 is split into the following sub-categories:
Tier 2 - General
This is for those skilled workers coming to the UK with a job
offer to fill a gap that cannot be filled by a settled worker. In
order to recruit a skilled migrant under this sub-category, the
employer must either satisfy the resident labour market test (RLMT)
or the job must be on the shortage occupation list.
The RMLT currently requires the employer to have advertised the
vacancy to the UK labour market for two weeks (in accordance with a
code of practice which is relevant to the occupation), and no
suitably qualified settled worker can fill the job. The shortage
occupation list has been produced by MAC and details those roles
for which there is a shortage of settled workers to fill.
Tier 2 - Intra-Company Transfer
This can be used by overseas companies to transfer their skilled
employees to work for a UK branch of the same organisation.
Currently, any transferring employee must have worked for the
overseas company for six months prior to transfer.
Tier 2 - Ministers of Religion
For ministers with a pastoral role.
Tier 2 - Sports People
For elite sportspeople and coaches.
How will the MAC recommendations affect Tier
2?
MAC has made 16 recommendations in relation to Tier 2 of the
PBS. Of particular note, are the following:
- Those jobs that need to satisfy the RLMT will now need to be
advertised for four weeks in Jobcentre plus (instead of the current
two weeks).
- A regime will be introduced for those employers who are
identified as being ‘high risk’, requiring certification that the
RMLT has been complied with. What would amount to a high risk
employer, however, is not currently defined.
- Intra-company transferees will need to have been with the
transferring company for one year prior to transfer to the UK base
(instead of the current six months), except where the transferring
employee is a graduate trainee, in which case they will require
three months prior experience with the company and will be
permitted to stay a maximum 12 months at the UK branch.
- The intra-company transfer route will no longer lead to a right
to permanent residence.
- The minimum salary that a skilled worker must be paid by a UK
company will rise from £17,000 to £20,000 per annum.
How will this affect us?
It is clear that these recommendations will make it even more
difficult for employers to recruit skilled migrants into the UK.
For those organisations that are currently considering transferring
particular skilled migrant workers under Tier 2 (ICT), it is
advisable to conclude this process sooner rather than later, so as
to avoid the more stringent regime that is due to come into place
in spring 2010.
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