UK Border Agency Makes Changes to Tier 2 of the Points-Based System

by Morgan Lewis
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Statement of intent includes changes to salary thresholds, advertisement requirements, and application fees.

The UK Border Agency (UKBA) released its "Statement of Intent: Codes of Practice for skilled workers" with anticipated effect from 6 April 2013.[1] The statement of intent details the changes the UKBA intends to make to the rules governing the use of Tier 2 of the Points-Based System and the Codes of Practice, which outline the occupations that are capable of sponsorship under Tier 2. Set out below is a summary of the changes and the likely effect that this will have on Tier 2 applications submitted on or after 6 April 2013.

Changes to the Codes of Practice

The UKBA will release new Codes of Practice with "modernised" job titles and descriptions. Although the skill threshold is anticipated to remain at National Qualifications Framework (NQF) level 6 (which roughly equates to graduate-level roles), these modernisations are expected to reflect more senior roles, and it may no longer be possible to sponsor some managerial roles in the way that it is possible now.

The new Codes of Practice are expected to be published by the UKBA on or around 15 March 2013.

Employers who were planning to recruit or transfer an individual to the UK within the next three to four months should consider now whether it will be possible to sponsor the individual's Tier 2 application after 6 April 2013. If an employer expects that the new rules will affect a sponsorship, the employer should consider whether it is possible to prepare and submit an application before the changes take effect.

Changes to the Minimum Salary Threshold

The minimum salary threshold for Tier 2 applications is likely to increase. In addition, a new lower pay threshold will be introduced for new entrant employees, including those switching from Tier 4 to Tier 2, applicants aged 25 years old or under, and those sponsored in the Tier 2 Intra-Company Transfer (Graduate Trainee) route.

Changes to the Resident Labour Market Test

Where advertising is required to satisfy the criteria for the role, it may be necessary to satisfy this Resident Labour Market Test in a different manner going forward. For roles that are first advertised on or after 6 April 2013, the UKBA may require the Tier 2 sponsor to have advertised the role in at least two places, even if advertising in Universal Job Match—the UK labour offices' website—is not mandatory. The advertisement can, however, appear on two different websites. If a Tier 2 sponsor is a large employer (i.e., has more than 250 employees) or an international company, it will be able to advertise on its own website in addition to one other website.

The UKBA has also indicated that it intends to allow sponsors to place advertisements in media where they believe they are most likely to find a successful candidate for the role, rather than a sponsor being required to advertise on those websites or places set out by the Codes of Practice.

Sponsors should note that, if they undertake the Resident Labour Market test (i.e., advertise a role) prior to 6 April 2013, they are not required to readvertise the role in accordance with the new criteria after 6 April. However, if the certificate is assigned after 6 April, the sponsor will be required to pay the higher salary threshold as referred to above.

Changes to UKBA Application Fees

The UKBA has also published its proposed application fees for applications submitted on or after 6 April 2013. The main fee increases include the following:

  • The fee for Tier 2 Visa applications will increase from £450 to £494.
  • The fee for Tier 2 Extension applications submitted by post will increase from £561 to £578.
  • Tier 2 Certificate of Sponsorship fees will increase from £179 to £184.
  • The fee for Indefinite Leave to Remain (ILR) applications submitted by post for Tier 2 workers will be increased from £991 to £1,051.

The new application fees for submitting applications at a Public Enquiry Office for same-day processing will equal the relevant fee as listed above plus an additional £375. The UKBA also intends to introduce a new appointment booking fee of £100 for same-day processing appointments, which will be retained if the applicant fails to attend his or her appointment. Further guidance has not yet been provided as to whether the £100 booking fee is included in the above fees or whether it will be added to the above fees.

Changes to the Life-in-the-UK Test

A new Life-in-the-UK Test will be introduced on 25 March 2013. The updated test, which must be completed by all individuals applying for ILR in the UK or naturalisation as a British citizen, will focus on aspects of British culture and history.

Individuals who have already taken and passed the Life-in-the-UK Test but who are not submitting their ILR application until after 25 March 2013 are not required to re-sit for the new test.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Morgan Lewis | Attorney Advertising

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