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immigration law update

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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