The Statement of Changes to the Immigration Rules has been published for 2015; the following is taken from the document with respect to Tier 2 applications and will take effect from 6 April 2015.
12 Month Cooling Off Period
We are pleased to note that a change is being made to the 12 month “cooling off period” which has prevented applicants, unless exceptions applied, from being granted Tier 2 leave if they were in the UK with Tier 2 leave within the previous 12 months.
The cooling off period will not apply to previous grants of Tier 2 leave of three months or less, this change is welcome and as intended will improve flexibility for businesses who need to transfer key staff for very short periods, rather than to fill ongoing vacancies in the UK.
Minimum Salary Thresholds
As expected, updates are being made to the annual minimum salary thresholds and appropriate salary rates for individual occupations (as set out in codes of practice). The updates to appropriate rates for occupations are based on the latest available salary data. The updates to salary thresholds are in line with changes in average weekly earnings for resident workers (a 1.2% annual increase based on the 12 months ending November 2014), rounded to the nearest £100. The appropriate salary rates also apply to settlement applications by work permit holders. The revised salary thresholds are as follows:
| Category | Criteria | Current threshold | New threshold (06/04/15) |
|---|---|---|---|
| Tier 2 General | Jobs which qualify for Tier 2 (General) | £20,500 | £20,800 |
| Tier 2 (General) | Jobs which are exempt from advertising in Jobcentre Plus (or JobCentre Online if the job is based in Northern Ireland) | £71,600 | £72,500 |
| Tier 2 (Intra-Company Transfer) | Jobs which qualify for the Short Term Staff, Skills Transfer or Graduate Trainee categories (maximum stay either six months or one year) | £24,500 | £24,800 |
| Tier 2 (Intra-Company Transfer) | Jobs which qualify for the Long Term Staff category (maximum stay five years) | £41,000 | £41,500 |
| Tier 2 (Intra-Company Transfer) | Jobs which qualify for transfers of up to nine years and are exempt from the 12-month cooling-off period | £153,500 | £155,300 |
| Tier 2 (General) and Tier 2 (Sports-person) | Earnings which qualify for settlement (those working in PhD-level or shortage occupations are exempt) | £35,800(for settlement applications made on or after 6th April 2019) | £36,200(for settlement applications made on or after 6th April 2020) |
The settlement earnings threshold (see the last row in the table above) only applies at the time the application for indefinite leave to remain is made, not throughout the five-year qualifying period.
Salary Rates and the Codes of Practice
It is important to note when considering the salary thresholds that in all cases, salary paid must be the minimum specified by the relevant SOC Code (whichever is higher).
For example, to transfer a Project Manager (Code 2424 Business and Financial Project Management Professionals, under the Long Term Staff Category would require a minimum salary of £41,500 (including permissible allowances), not the experienced worker salary of £33,300 as indicated on the Code.
Salary rates have been clarified with respect to the “new entrant” and “experienced worker rates:
Where both “new entrant” and “experienced worker” rates are stated on the code of practice, “new entrant” rate will only apply if the applicant is:
- Applying as a Tier 2 (General) Migrant and scores points from the Post-Study Work provisions of Appendix A,
- Is applying as a Tier 2 (General) Migrant and scores points from the Resident Labour Market Test provisions of Appendix A, on the basis that his Sponsor has carried out a university milk round,
- Is applying as a Tier 2 (Intra-Company Transfer) Migrant in the Graduate Trainee sub-category, or was under the age of 26 on the date the application was made;
- and
- the applicant is applying for entry clearance or leave to remain (not for indefinite leave to remain); and
- the applicant is not applying for a grant of leave that would extend his total stay in Tier 2 and/or as a Work Permit Holder beyond 3 years and 1 month.
The “experienced worker” rate will apply in all other cases.”
With the above stipulation in mind, let us consider again Code 2424 where the new entrant rate is £24,100 pa – if you sponsor a migrant worker aged under 26 at the time the application was made for under 3 years, you must be prepared for his salary to have increased or to be increased to the experienced worker rate of £33,300 at the time his application to extend his leave to remain in the UK is submitted. Will an increase of £9,200 over 3 years this cause any issues for your business operations, will you have to consider the salaries paid to resident workers doing the same job? It is a situation some Sponsors are finding themselves in and unfortunately are not always in a position to extend their employees leave, losing valuable skills, time and resources spent on training.
Please contact us if you have any concerns or questions relating to the Tier 2 changes 2015 affecting your sponsored employees.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals