Tier 2 Visa Application
Are you a UK employer and need to employ a person who is a non-EEA national for a permanent role in the UK?
Providing you hold a valid sponsor licence you can employ a person who is not British or an EEA national under the Tier 2 (General) provision of the Points Based System.
What do you need to be able to sponsor someone in the UK under Tier 2 (General)?
You would require a Tier 2 sponsor licence for the Points-Based System in the UK and have Certificates of Sponsorship available for a Tier 2 visa application.
What are the eligibility requirements to make a Tier 2 visa application?
• You must be offering a job in the UK at NQF level 6 or above.
• You must be paying a salary of at least £20,800 unless the salary stated for the Code of Practice is higher, then you will need to pay the higher threshold. Salaries are based on a 39 hour week.
• You have carried out the Resident Labour Market, unless the job is under the shortage occupation list or the individual will be earning £155,300 or above.
• The potential employee will need to prove their knowledge of English language.
• The potential employee will need to show maintenance to prove they can support themselves and any dependants without recourse to public funds.
Ensuring you can sponsor someone
It is important you request to see documents confirming the person you wish to employ has the right to work in the UK and if they currently hold or have ever held UK visas.
As employer, it is your responsibility to ensure that you check a potential employees eligibility documents before they start employment with you, as well as on the first day of commencing employment.
How can the English language requirement be met?
There are 3 ways in which a person can meet this requirement, outlined in the list below:
• Passing an approved English language test with at least CEFR B1 level in reading, writing and speaking; or
• They have a degree which has been taught in English and is recognised on the Points Based Calculator or by UK NARIC as being taught in English; or
• They are a national of a majority English speaking country, which are as follows:
o Antigua and Barbuda
o Australia
o the Bahamas
o Barbados
o Belize
o Canada
o Dominica
o Grenada
o Guyana
o Jamaica
o New Zealand
o St Kitts and Nevis
o St Lucia
o St Vincent and the Grenadines
o Trinidad and Tobago
o USA
What is the Resident Labour Market Test for the purposes of a Tier 2 visa application?
The resident labour market test is there to protect the settled workforce and means that organisations must advertise the job for which they want to recruit to give settled workers a chance to apply. The resident labour market test must be carried out, unless the job is exempt.
The role in question would need to be advertised in two approved places for 28 days as per the guidance set out by UK Visas and Immigration. DavidsonMorris can provide further information.
Exemptions from the resident labour market test are as follows:
o The salary for the job on offer is being paid £155,300 or above;
o The job is on the shortage occupation list, the complete list of jobs on the shortage list can be found here;
o The person is applying to extend their employment and is an existing employee who will be doing the same job; or
o Switching from Tier 4 (General), we can advise further regarding this.
The government has recently tightened up on this requirement and you must ensure the position advertised is a genuine vacancy and not ‘manufactured’ to suit a certain individual’s skills, nor is it exaggerated as the Home Office will be looking at this.
Is the Tier 2 visa application process the same for those applying from inside and outside the UK?
No, if the person you have identified for a role is outside then UK then you will need to apply for a Restricted Certificate of Sponsorship once the Resident Labour Market Test has been completed, providing no suitable resident workers applied for the role advertised.
What is a Restricted Certificate of Sponsorship and how do you apply for it?
UKVI have an annual limit on the number of Certificates of Sponsorship available under Tier 2 (General) and the limit applies to nationals making their applications from overseas, who will be applying for entry clearance and being paid under £155,300 per annum.
Employers would need to submit a request to UKVI via the Sponsor Management System for a Restricted Certificate of Sponsorship to be granted for the role on offer.
The request for a Restricted Certificate of Sponsorship must be submitted by the 5th of each month and will be considered by UKVI on the 11th of each month. In some cases they may come back requesting submission of additional information.
Up until June 2015 the annual limit had never been reached, however this summer we saw a number of requests being denied. Persons being offered jobs on the Shortage Occupation List and salaries over £46,000 per annum had requests approved. Anyone whose request was denied was required to apply in next month’s panel.
How long would Tier 2 visa applications typically take if applying from outside the UK?
The entire process, including carrying out the Resident Labour Market Test and applying for entry clearance would take around 3 months. However, we can review further and advise if it can be done in a shorter timeframe depending on the country the person is applying from.
How long would the Tier 2 visa application process take for anyone applying from within the UK?
From within the UK, if the Resident Labour Market Test is required (i.e. someone who is in the UK on a Tier 2 (General) visa wishes to switch employers) the process can take anywhere between 8-12 weeks.
Where the Resident Labour Market Test is not required it can be done fairly quickly in 4-8 weeks, depending on if the application is made via one of the Premium Service Centres or by post. If the application is made via the Premium Service, in the majority of cases applicants receive an answer on the same day.
How long is someone allowed to stay in the UK on a Tier 2 (General) visa?
The maximum time allowed to be spent in the UK on a Tier 2 (General) visa is 6 years.
What happens after six years of being in the UK on a Tier 2 (General) Visa?
After 5 years of continuously being in the UK lawfully the person may be eligible to apply for Indefinite Leave to remain, providing they meet all the requirements.
If the person does not apply for Indefinite Leave to Remain after 5 they can extend for a further year, taking them up to six years and can still apply for Indefinite Leave to Remain before their visa expires.
However, if they choose not to apply for Indefinite Leave to Remain, then they must leave the UK by the expiry date given on the visa. In these circumstances, they cannot re-enter the UK for a 12 month from the date they left the UK under any Tier 2 category, this is known as the cooling-off period.
What is Indefinite Leave to Remain?
Holding Indefinite Leave to Remain means the person is free of immigration control. ILR grants an applicant the right to live and work in the UK without any immigration restrictions, and entitles them to apply for naturalisation as a British citizen.
If you want to check if you can employ a migrant, are carrying out the Resident Labour Market Test correctly or if they qualify for Indefinite Leave to Remain why not call one of our team now on 020 7494 0118 who can advise on the best course of action?
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 500and 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
