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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?

  1. 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.
  2. 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.
  3. Once licensed, you must issue a certificate of sponsorship to the prospective employee. Each certificate of sponsorship costs £170.
  4. 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).
  5. 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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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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