With the Skilled Worker visa now open, replacing the Tier 2 (General) visa, a number of changes have taken effect impacting points-based skilled workers and their sponsors. One significant area of change is in relation to the Tier 2 cooling off period.
Tier 2 cooling off period abolished for skilled workers
Under the UK’s new points-based immigration system, individuals who have previously held a Tier 2 visa will no longer be subject to the 12-month cooling off period if relocating back to the UK.
Under previous rules, the Tier 2 cooling off period prohibited a Tier 2 visa holder from returning to the UK for a period of 12 months after the expiry of their Tier 2 visa, or from switching back to a Tier 2 visa from another UK leave category within 12 months (unless they earned over £159,600). It applied where an individual was either overseas and their last grant of Tier 2 leave had expired or ended; or was in the UK and had an earlier period of Tier 2 leave, but then switched to a different immigration category and then sought to apply again under Tier 2.
The Tier 2 cooling off period has now been abolished, meaning Tier 2 (General) and Skilled Worker visa holders can make their UK visa application without a mandatory waiting time. Existing Tier 2 General visa holders benefit from this change and are no longer be subject to these restrictions.
The Tier 2 cooling off period had been problematic for sponsors and workers alike, and the new rules allow greater flexibility for skilled workers to return to the UK and improve international recruitment options for employers.
Intracompany transfer (ICT) cooling off period simplified
The cooling off period for ICT visa holders has also been amended to simplify the rules for those wishing to remain in the UK.
Under the new rules, ICT visa holders are now eligible to apply to switch into the Skilled Worker route, provided they meet the eligibility criteria.
This includes a restriction that Intra Company Transfer visa holders cannot have held an Intra Company Transfer visa (or a combination of Tier 2 (ICT) and Intra Company Transfer visa) for longer than five years in any six-year period, or nine years in any 10-year period if their salary is £73,900 or above.
In practical terms, this means that ICT workers will not be ‘penalised’ with the 12-month cooling off period, even after a relatively short term assignment in the UK, allowing the flexibility for multiple, short term assignments to take place. The ICT cooling off period will then only apply after five (or nine) years.
Recruitment strategies under the new points-based system
UK employers must ensure their recruitment and HR systems are compliant with the new rules which came into effect after Brexit and the end of EU free movement. Given the changes and the introduction of new routes and the closure of others under the points-based system, it has become challenging for employers to understand the immigration options for job applicants while ensuring continued compliance with immigration duties.
All non-UK residents (both EU and non-EU citizens) must now apply for permission to come to the UK to work, and UK employers must hold a valid sponsor licence allowing them to hire migrant workers.
Importantly, the licence must be the correct type for the class of worker you are hiring, for example, Skilled Worker, Intracompany transfers or T5 temporary workers.
While abolishing the cooling off period for the Skilled Worker route is beneficial to the sponsor and the worker, both parties must still ensure all requirements are met when making the visa application, to avoid a delayed or refused application.
Need assistance?
As immigration law specialists, DavidsonMorris are experienced advisers to sponsor licence holders on recruiting and onboarding under the points-based visa system. If you have a query about hiring under the Skilled Worker or ICT visa, contact us for advice.
Tier 2 cooling off period FAQs
Is there a cooling off period for Tier 2 General visa?
The Tier 2 cooling off period has been abolished and no longer applies from 2021.
Can Tier 2 ICT be converted to Tier 2 general?
ICT visa holders are permitted to apply to switch into the Skilled Worker visa route, which replaced the Tier 2 (General) visa from 1 December 2020.
What happens if you lose your job on a Tier 2 visa?
Your sponsor must inform the Home Office of termination of your employment contract. Your visa will then be curtailed to 60 days or until the end of your visa if sooner, during which time you must either find a new sponsor and qualifying employment or leave the UK.
How soon can I extend my Tier 2 visa?
You can usually make your extension application up to 60 days before your current visa is due to expire. Note that the eligibility requirements may differ depending on whether your first Tier 2 Certificate of Sponsorship was issued before or after 24 November 2016.
Last updated: 2 January 2021
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