UK Work Permit & Tier 2 Visa – A Summary of Recent Changes

Certificates of sponsorship allowance.

We wish to remind all sponsors that the allocation of certificates of sponsorship (CoS) is not automatically renewed and must be requested annually through the sponsor management system (SMS) within a year from the previous allocation.

Licensed sponsors who registered with multiple tiers and categories of the points-based system and obtained registration at different times can choose to align their expiry dates to make the management of renewal process easier.

Sponsors, who will fail to renew their request, will not be able to issue certificates of sponsorship until their new certificates allowance is approved by the UK Border Agency.

Identity Cards and Biometrics for Foreign Nationals under Tier 2 scheme

As part of the 3 years plan the UK Border Agency is introducing Identity Cards (ID) for foreign nationals from outside the European Economic Area (EEA) and their dependants who are coming to the UK for more than 6 months or are extending their stay.

Until the end of 2009, only foreign nationals applying for an extension of leave in the UK as a spouse or a student were required to apply for an ID card.

However, from 6 January 2010 those applying to switch or extend their Tier 2/Work Permit visa will be also required to attend a biometric appointment and will be issued with an Identity Card for Foreign Nationals (ICFN) upon successful application.

The roll-out of the identity cards for those in Tier 1 Highly Skilled Workers and Tier 5 Temporary Workers categories of the points-based system has also been brought forward from 2011 to 2010.

Changes to the Resident Labour Market Test

Until 14 December 2009 an organization sponsoring a foreign worker under the Tier 2/ Work Permit category had to conduct 2 weeks resident labour market test, or one week for jobs with a salary exceeding the amount of £40,000, before being able to fill a vacancy with an overseas worker. Following the Migration Advisory Committee’s recommendations all jobs, regardless of the salary have to be advertised for 28 calendar days unless they appear on a Shortage Occupation List.

However, the advertising campaign does not have to run continuously for 4 weeks period. UK employers can advertise initially for a 2 weeks period so that if suitable resident workers are found, they can be recruited as quickly as possible.

Shortage Occupation List

Following MAC’s report the Shortage Occupation List for Tier 2/Work Permit of the points-based system was amended and the following occupations were added to the list:

· teachers in special schools;
· skilled meat boners and trimmers;
· specialised jobs in the electricity transmission and distribution industry;
· some medical specialties, including higher-level specialty pediatrics trainees; and
· aircraft technicians and fitters.

Skilled chefs remain on the list, however, there are plans for an extensive training to be offered to the UK workforce in this field. Thus, it is likely that this occupation will be removed from the list.

Some of engineering, construction and ship and hovercraft officers’ jobs have now been removed from the list in line with changing economic circumstances.

Clarifications on Takeovers and Mergers

The existing sponsor must notify the UKBA within 28 days of the takeover, using the sponsorship management system (SMS) and report migrants who are not transferring to the new sponsor – these migrants’ permission to stay and work in the UK might be curtailed.

The new organization must apply for a sponsor licence unless it does already have one, within 28 days of the change.
If a sponsor is taken over, any of its employees who transfer to the new company are covered by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

Intra Company Transfers – further clarification on definition of the term ‘directly replacing’

The Guidance for Sponsor applications – Tier 2, Tier 4 and Tier 5 of the Points Based System – Paragraph 171 states:
“Migrants entering the United Kingdom under Tier 2 Intra-Company Transfer must not be ‘directly replacing’ a settled worker and with the intention of Tier 2.”

The UKBA policy team has now confirmed that as long as the position to be filled is not one that would normally be filled by a resident worker, and the original incumbent is not removed to make way for the new employee, it will meet Tier 2 (ICT) criteria.

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