Since April 2011, the Government has made various changes to the Points Based System (“PBS”) with a view to reducing immigration. The Tier 1 (General) Visa which entitled highly skilled migrants to live and work in the UK was abolished in its entirety in April 2011. This means the only way for companies to employ new migrant workers is under Tier 2. However, the Government also imposed a cap in April 2011 on the number of Tier 2 certificates which could be issued annually and increased the salary and qualification requirements.
Further changes were implemented in April 2012. These are aimed at restricting the right to settlement (permanent residence) and abolishing the Post Study Students Visa. The Government has, however, improved the system for professional artists, entertainers, sports persons and academics to come to the UK for a short period. This was in response to criticism that the sponsorship system which applied previously to these people was preventing artists etc from coming to the UK.
Tier 2 Sponsorship
Companies wanting to employ migrant workers under Tier 2 are required to be registered with the UK Border Agency (“UKBA”) as a licensed sponsor.
In order to issue Certificates of Sponsorship to migrant workers, the company must carry out a resident labour market test (“RLMT”) to show that there is no suitable resident worker to undertake the role. The RLMT is not required for intra company transfers, shortage occupations as determined by the Migration Advisory Committee (“MAC”) or if the salary is £150,000 or more.
From 1 April 2011 there has been an annual limit of £20,700 “restricted” certificates which can be issued. This limit will continue until 2014. The limit does not apply to “unrestricted” certificates which cover intra company transfers or persons with a salary of more than £150,000, sports persons and ministers of religion.
Applications for restricted certificates are considered on a monthly basis of 1,725 per month. If the monthly allocation is over-subscribed, applications will be ranked according to whether they are for shortage applications, whether the post requires higher academic qualifications and level of salary. This is assessed by a point scoring system. More points are awarded for high salaries and shortage occupations posts. The minimum salary is £20,000 per year.
If the monthly allocation is undersubscribed, then the UKBA will carry over any certificates that remain unallocated to the following months. If an application is rejected due to over-subscribing, then the company can apply again the following month. However, there is no guarantee it will then be successful. This will depend on whether the limit is over or under subscribed.
To date, the allocation has been under-subscribed and a total of 9400 certificates were issued for 2011/2012.
Intra Company Transfers
Although the cap does not apply to the Intra Company Transfer category, the criteria has been increased to prevent this category leading to settlement. Staff who are paid more than £40,000 are only able to stay in the UK for up to six years and those paid between £24,000 and £40,000 are only able to enter for a maximum of 12 months. They are not able to work again for the UK company until they have been outside the UK for 12 months.
Post Study Workers
Prior to April 2012, individuals in the UK on a student visa who had completed a degree or masters from a UK university could apply for a Tier 1 Post Study Workers Visa. The visa was for a period of two years and allowed the individual to work or set up a business in the UK.
This visa has now been abolished. Instead, graduates who would previously have been eligible are now entitled to apply for a Tier 2 (General) Visa. In order to qualify for the new visa, applicants must have an offer of a skilled job from a licensed sponsor with a salary of at least £20,000 per year. However, the employer will not have to complete a RLMT and the job will not be subject to the annual limit on Tier 2 numbers.
Premium Sponsor Scheme
The UK Border Agency (UKBA) has recently launched the Premium Sponsor Scheme. This is aimed at licensed sponsors who want to pay for a higher level of customer service and a package of benefits. The fees to use this scheme are £25,000 per year for large companies and £8,000 for small to medium sized enterprises. Premium sponsors benefit from dedicated contact points within the UKBA and guaranteed access to priority and premium services both at the public inquiry offices in the UK and overseas consulates for their migrant workers. If recruiters need to employ migrant workers on an urgent basis then it may be worth applying for the Premium Sponsor Scheme.
Analysis
Judging from the low take up, the cap on immigration has succeeded in achieving the Government’s objective of reducing immigration. However, the new restrictions do not make the UK attractive to migrant workers, including students where there is a choice of another country. Although expensive, the Premium Sponsor Scheme does have benefits for recruiters and should be considered for companies who wish to employ migrant workers on an urgent basis.
