Posted on 3rd Aug 2010 in News
The UK Border Agency (UKBA) has published guidance for the interim limit on Tier 1 (General) applications and Tier 2 (General) Certificates of Sponsorship (CoS), which came into effect this week.
Tier 1 (General) Applications
From 19 July 2010, there are two important changes for migrants making initial applications under Tier 1 (General) of the points-based system:
- the introduction of an interim limit for Tier 1 (General) applications made outside the UK, for the period until 31 March 2011; and
- an increase in the number of points required for an initial Tier 1 (General) application, from 95 to 100.
Interim Limits
On 19 July 2010, the UK government introduced a limit on the number of initial applications from outside the UK that can be granted under Tier 1 (General) of the points-based system until 31 March 2011. The UKBA is administering the limit on a monthly basis and whilst the figure has yet to be officially released, it is our understanding the limit will be 600 a month.
The way that an application for permission to enter the UK under Tier 1 (General) is lodged, remains the same. If the application meets all the requirements and the limit has not been reached for the month, then the visa will be issued in the usual way. If the application meets all the requirements but the limit for that month has been reached, the UKBA will defer the application to the next month when the limit allocation reopens. If the application does not meet the requirements, the UKBA will process it as normal even if the limit has been exceeded. It is possible to submit an application even when a monthly limit has been reached. All applications will be processed in the order in which they are received.
The interim limit will not affect:
- applicants who are already in the UK (with current permission to stay in any immigration category);
- dependants of Tier 1 (General) applicants; or
- applicants to the Investor, Entrepreneur and Post-study work categories of Tier 1.
Points Allocation
In addition, from 19 July 2010, the number of points required for an initial Tier 1 (General) application has increased from 95 to 100. To off-set the issues this creates with certain applications, the points awarded to those with previous earnings of £150,000 have increased from 75 to 80; and the points awarded to those who have an eligible MBA have increased from 75 to 80.
These changes apply to all initial Tier 1 (General) applications paid for on or after 19 July 2010, whether they are made inside or outside the UK. The points requirement will remain at 95 points for applicants who are currently in the UK under one of the following highly skilled worker categories:
- Highly Skilled Migrant Programme
- Writer, composer or artist
Tier 2 (General) Applications
As was announced at the end of June, the Government is to introduce a limit on the number of sponsored migrants allowed to remain in the UK. The interim limit is to focus on Tier 2 (General) migrants only and is being set to ensure there is not a rush of applications whilst a consultation exercise is completed. On 19 July 2010 the UKBA published guidance for the interim limit and following this, all sponsors affected by the introduction of the interim limit will have received a letter detailing their allocation and how it has been calculated. The UKBA have stated that interim limit will be replaced by a permanent limit in April 2011.
Consultation Exercise
As part of the overall review of migration into the UK, there are a number of consultation exercises being undertaken and we urge all our clients to be involved with these. Whether through a trade organisation, regional business organisation or directly, it is essential that the UKBA get a detailed view of business before continuing with this policy. We would also urge all clients to review and respond to the MAC consultation on the same subject. It is very likely the MAC will be used by the UKBA to set limits in future and it is vital they understand the fears and concerns of UK businesses. The various consultation documents are attached with this email and are also available at
www.ukba.homeoffice.gov.uk/aboutus/consultations/current
www.ukba.homeoffice.gov.uk/mac
The MAC consultation concludes on 7 September 2010 and the overall consultation runs until 17 September 2010
Interim Limit
The interim limit applies only to Tier 2 (General) applications from 19 July 2010 onwards regardless of the sponsor's current Tier 2 General CoS allocation renewal date.
The UKBA have stated that it is for sponsors to decide how to split their allocation between 'new' employees and extension applicants where appropriate. Furthermore, where an existing sponsor has a zero allocation or requires additional CoS during the period of the interim limit then it is open to them to apply for exceptional consideration. However, the UKBA are at pains to advise that the number of CoS available for exceptional cases will be limited and it is therefore important that sponsors manage their allocation appropriately as there is no guarantee that their request for extra CoS will be granted.
Sponsors with an interim allocation of 1 CoS or more who apply for exceptional consideration will be required to account for how they have used, or intend to use, their existing CoS.
Exceptional Consideration
If an employer wishes to sponsor an overseas worker but does not have any CoS available on the Sponsor Management System, they can apply for additional CoS. The requests will be compared against the following criteria:
- a) The sponsor must be A-rated on all their sponsor licenses on all tiers and categories at the point they submit the request; and
- b) The number of CoS requested must take into account any available CoS remaining in the sponsor's existing allocation.
Requests for exceptional consideration will be considered and ranked against the following criteria (starting with the highest ranking):
- 1. A Work Permit or Tier 2 (General) extension for an existing sponsor;
- 2. A Work Permit or Tier 2 (General) extension for a new sponsor;
- 3. A new shortage occupation post for an existing sponsor;
- 4. A new shortage occupation post for a new sponsor;
- 5. A non-shortage occupation post for an existing sponsor;
- 6. A non-shortage occupation post for a new sponsor.
Please note that the number of CoS available for exceptional cases is extremely limited and it is likely that most requests will be unsuccessful. Sponsors should carefully consider their request against the above criteria before submitting.
A CoS should only be requested for an extension where the migrant's leave is due to expire within the next 60 days. Where the CoS is required for an individual whose leave is due to expire in more than 60 days then the request will be rejected and the sponsor informed.
When the UKBA consider requests for exceptional consideration, they will check how sponsors with an interim allocation of 1 CoS or more have used, or intend to use, their existing CoS. Requests for exceptional consideration will be considered by a panel of UKBA managers to ensure consistency of decision-making. The panel will meet on a monthly basis on the first working day of the month. All requests for exceptional consideration received before the 25th of the previous month will be considered at the next panel meeting. Any requests received from the 25th onwards will not be considered at the next panel but will be rolled over to the following month's panel.
Sponsors will be notified of the result of their request for exceptional consideration within five working days of the panel meeting. Where the request for a CoS has been successful then the Sponsor Management Account will be updated. Where an urgent decision is required before a panel then a decision will be made by the Deputy Director for Sponsorship or nominated deputy.
The UKBA have stressed that the panel's decision is final: there is no appeal or reconsideration process. However, sponsors can choose to resubmit their request at any time.
Any CoS allocated to sponsors following a request for exceptional consideration must be used for the role for which it was requested. Failure to do so may result in the refusal of future requests for exceptional consideration and further compliance action being undertaken as appropriate.
The application form COS(AR) is attached to this email for information.
General
Sponsors should note that the procedure adopted where a CoS is assigned remains the same under the interim limit as it was prior to 19 July 2010. Any CoS that a sponsor assigns to a prospective worker will be counted as 'used' and will be deducted from the sponsor's allocation for the period of the interim limit. This includes any CoS issued in error or any CoS which is assigned but not used by the migrant in a leave to enter or leave to remain application.
Each sponsor's CoS usage will be monitored closely during the period of the interim limit and reviewed in October 2010 and January 2011. A sponsor's interim allocation may be recalibrated at this review point depending on the overall trajectory of the limit.
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