The following is a summary document provided by Caron Pope, Managing Partner at Fragomen LLP, a leading immigration law firm.
New Immigration Rules took effect on 6 April that will change the way that research centres, universities and other employers recruit workers from outside of Europe. More changes are due on 14 June 2012.
The extensive set of changes touched on every area of policy for Tier 2 migrants, the ‘skilled worker’ category. There has been a lot of change, and staff in HR, the individual employees and their recruiting managers could be forgiven for losing track.
Some of the changes will reduce the flexibility that employers have to recruit and retain top talent. There have however been some notable wins and concessions for the scientific community, due in no small part to collaborative and informed lobbying by the Campaign for Science and Engineering. These are:
- From 14 June the Resident Labour Market Test (RLMT) will be liberalised for PhD level jobs. Employers will:
- no longer need to advertise a post in JobCentre Plus;
- be able to select the best candidate, regardless of nationality; and
- be able to rely on advertising that began up to one year earlier, as opposed to six months earlier as at present.
- The RLMT will be removed for graduates (Tier 4 Students) who have been awarded their qualification by a Higher Education Institution licenced by the UK Border Agency. PhD students will not need to have completed their doctorate and will instead be able to move into Tier 2 after studying for 12 months.
- Those who enter the UK in Tier 2 after 6 April 2012 will need to be paid at least £35,000 to qualify for settlement. Employees in PhD level jobs will be exempt from this requirement, as will anybody who has worked in a job on the Shortage Occupation List (which includes a number of engineering jobs);
- A new visitor category has been introduced that will allow some a small number of workers, including academics and examiners, to work in the UK for up to a month without sponsorship.
No other sector has been provided with this many policy concessions.
What follows is a summary of the new policies relating to employers and employees. As there is a lot here we have grouped the changes together according to visa categories.
Tier 1 – High value migrants
- There has been one significant change to Tier 1 policy. The Post Study Work (PSW) category has been closed. The route had been used by students looking to extend their stay in Tier 1 for two years after graduation.
- Closure of the route is a matter of regret for many employers. It was a useful category for businesses and increased the attractiveness of the UK as a place to study, on top of our excellent academic offering.
- New arrangements for graduate hires are set out below.
Tier 2 – Skilled workers
The Tier 2 limit
- Tier 2 limit on Restricted Certificates of Sponsorship (CoS) will remain at 20,700 places for each of the next two years (running from 6 April to 5 April). This is the level at which it was set in 2011/12. Supply has consistently outstripped demand over the last twelve months and 12,300 of last year’s 20,700 CoS were still available at the end of February.
- The limit applies to:
- non-EU workers who will be paid less than £150,000 and are applying for a Tier 2 General visa from outside of the UK; and
- dependants of Tier 4 visa holders who are switching in to Tier 2 from within the UK.
- The limit does not apply to Intra-Company Transfers (ICT), in country Tier 2 applicants (save for the Tier 4 dependants already mentioned) or those earning over £150,000.
The Resident Labour Market Test
- The Home Office has announced that from 14 June 2012 the RLMT:
- will not require advertisements in JobCentre Plus if a vacancy is paying over £70,000 per year or is deemed to be PhD level; and
- additionally, those recruiting scientists and academics for PhD level jobs will now be able to choose the best candidate, regardless of whether there is a suitable resident worker.
- Until April an employer could only issue a Certificate of Sponsorship if an RLMT had began no more than six months earlier. For PhD level jobs the RLMT can now have began up to a year earlier.
Increased skill level
- The minimum skill level in Tier 2 will increase from NQF4 to NQF6 level. These levels are rather technical but essentially correlate to diploma level and bachelors degree level respectively.
- However, this increase will not apply to shortage occupations or creative jobs. The change in policy will take effect in 14 June 2012
- I have attached a list of the jobs deemed to be at NQF4 level. The attachment also sets out the NQF4 jobs that are currently on the shortage occupation list and new creative occupation list. The rest of the jobs will not qualify through Tier 2 unless they are added to the Shortage Occupation List.
Tier 2 and graduate hires
- Tier 4 students will only be able to switch to Tier 2 if:
- they have completed and passed a UK degree (Bachelors and Masters) or a prescribed teacher training qualification; or
- have completed 12 months towards a PhD; and
- the courses were studied at a Tier 4 registered institution.
- There will be RLMT for this group.
- Previously the RLMT did not apply to Tier 1 PSW migrants if they had worked for a firm for six months. Since 6 April there does not need to be any RLMT at all.
- Employers still need to have conducted an RLMT for graduate hires that are not switching from Tier 4 to Tier 2, for instance those who studied:
- outside of the UK;
- in the UK but are applying for Tier 2 leave from abroad; or
- studied in the UK with a visa that was not Tier 4.
Tier 2 and Indefinite Leave to Remain (ILR)
- Workers who entered through Tier 2 after 6 April 2011 will now be granted three years leave to enter followed by a further three years leave to remain.
- They will be able to apply for ILR after five years. ILR will only be available to those who:
- pass the Knowledge of Life in the UK Test;
- have a clean criminal record;
- have not been out of the UK for more than 180 days in the five years immediately prior to the application (there is limited discretion available for longer absences); and
- are paid at least the going rate for the job.
- Those who enter the UK in Tier 2 after 6 April 2012 will additionally need to be paid at least £35,000 in order to settle. However, this requirement will not apply to those in PhD level jobs or those who worked in a shortage occupation at any point during their stay.
- If they have not been granted settlement after six years they will need to leave the UK and a cooling off period will prevent re-entry in any Tier 2 category for a period of 12 months. This includes where they have failed the absence requirements.
- There are only two exceptions to the cooling off period:
- Where a former Short Term ICT wishes to return as a Long Term ICT; and
- Where a migrant had last been granted leave as an ICT under the Rules in place before 6 April 2011and wishes to return as a Long Term ICT.
- There will continue to be a bar on switching between the Tier 2 General and ICT whilst in the UK. The only exception to this is where an ICT entered under the Rules in place before 6 April 2011 and is changing employer.
- This means that you will not be able to move between Tier 2 General and ICT without first spending 12 months out of the UK.
- This cooling off period will be applied very strictly and could have serious consequences for Tier 2 sponsors and their employers:
- If you have an ICT working for you in the UK 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. 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 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.
- Frequent travellers who spend far more than an average of 36 days a year outside of the UK will not normally qualify for ILR and have to leave the UK. They will again be prevented from re-entering until they have completed the cooling off period.
- These impacts could cause real difficulties. We are working closely with the Home Office and other influencers to help them understand impacts and to press for a more flexible policy.
Tier 5 and Overseas Domestic Workers (ODW)
- Tier 5 Interns have been be restricted to 12 months leave. Other Tier 5 migrants on medical or research programmes will be able to stay for up to two years.
- The ODW category in Tier 5 will be removed for private households but remains open for diplomatic households. Instead, an ODW will only be granted entry clearance if they are accompanying a visitor. They will be given a maximum of 12 months leave to enter.
Visitors and permitted paid engagements
- The Home Office has introduced a new category of visitor undertaking paid engagements. Some academics, lawyers, air pilot examiners and entertainers will be able to enter for up to one month and work without sponsorship.
- This route is welcome even though it is very narrowly defined. Fragomen will continue to lobby for a wider review of very temporary work and visitor status.
 The Home Office define PhD level jobs as the following job titles: Research and Development Managers; Chemists; Biological Scientists and BioChemists; Physicists; Geologists and Meteoroligists; Higher Education Teaching Professionals; Scientific Researchers; Social Science Researchers; Researchers not elsewhere classified.