Nicole  Hambleton
Posted on 24 Nov 2020

Brexit Immigration Law Update: A Guide to Navigating the Tier 2 Visa Route

Continuing our Brexit Immigration Law Update series, this article will focus on the Tier 2 visa route and upcoming changes, which come into effect from 9am on 1 December 2020. The changes are set to radically overhaul the previous points based system.  These changes will apply to non-EEA citizens from 1 December 2020 and EEA citizens from 11.01pm on 31 December 2020. The government's intention is to streamline the visa process for Tier 2 workers to make it more accessible for both individuals and employers, as the current system is viewed by many to be complex and burdensome.

Throughout this article, we will explore and clarify the Tier 2 visa types, eligibility requirements, the application process and all the associated costs (including any sneaky hidden charges) for UK businesses.

Before you can sponsor an international employee via the Tier 2 visa route, you will need to secure a Sponsor Licence for your business. If you would like more information about securing and maintain a Sponsor Licence, please read our article here.

What is a Tier 2 Visa?

The Tier 2 visa route permits UK businesses to recruit international skilled workers, from outside the UK resident workforce, to fill particular jobs which cannot otherwise be filled by workers resident in the UK.

Currently under the Tier 2 visa category, there are the following sub-categories:

  1. Tier 2 General (which will become the "Skilled Worker Route" from 1 December 2020);
  2. Tier 2 Intra-Company Transfer, which includes the Long Term Staff and Graduate Trainee routes;
  3. Tier 2 Sportsperson; and
  4. Tier 2 Minister of Religion.

For the purposes of this article, we will be analysing the first and second categories, as these are the most applicable visa routes for businesses.

Categories under the Tier 2 Visa Route

  1. Skilled Worker (formally 'Tier 2 General') Visa

Overview

Currently, the rules for the Tier 2 (General) visa route continue to apply until 9am on 1 December 2020. However, for the purposes of this article we will provide information about the Skilled Worker route, given the current route will cease to be applicable in the coming weeks.

As above, this route will replace the Tier 2 (General) route and can be used by employers to sponsor new and sufficiently skilled workers outside the UK who have a lawful right to live and work in the UK. The worker must have a job offer, which meets the minimum skills and salary threshold from a UK employer that holds a valid Sponsor Licence. As was the case with the Tier 2 (General) visa route, time spent in this route will count towards an application for settlement, after five continuous years in the UK (subject to the worker satisfying the relevant conditions).

Under the updated rules, an employer is required to show that the prospective role is a 'genuine vacancy', which is set to replace the previous process of undertaking the Resident Labour Market Test (RLMT). Whilst bidding farewell to the RLMT is welcomed by many, it is unclear at present what the updated test will entail and, more specifically, what evidence employers will need to show. One thing we know for sure is the intention behind this requirement is to mitigate the risk of this route being abused and roles being created to solely facilitate an individual's entry into the UK. Further guidance is anticipated from the Home Office in due course, and we will update you once this has been published.

Eligibility

In order to sponsor a worker under this route, they must score a total of 70 'points'. Points are awarded for the different aspects of the role, e.g. salary, a job offer, skill level etc.

50 of these points will be secured as follows:

  1. A job offer (and sponsorship) from a licenced sponsor (20 points);
  2. Meeting the minimum Regulatory Qualification Framework (RQF) Level 3 skill threshold (which is A-level or equivalent) (20 points); and
  3. Meeting the English language threshold at level B1 (i.e. at a conversational level) (10 points).

The additional 20 points required are scored in relation to the worker's salary. Now, here is where it gets a bit complicated!  The worker gains 20 points if they earn £25,600 per year or the going rate for their role (whichever is higher).  However, where the worker has a lower salary, they may still be able to secure the required 20 points if their role is in a certain field or they have additional, relevant qualifications. This is referred to as 'Tradeable Points', and works like this:

 

Attribute

 

 

Points awarded 

 

Does the worker have the required points?

 

Salary equals or exceeds £25,600 per year or the going rate for the role, whichever is higher

 

 

20

 

Yes

Salary of at least £23,040 per year or 90% of the going rate for the role, whichever is higher

 

10

 

No

 

See below – consider whether the worker has a PHD relevant to their role or a relevant PHD in a STEM subject (science, technology, engineering and mathematics)

 

Salary of at least £20,480 per year or 80% of the going rate for the role, whichever is higher and the role is on the Shortage Occupation List

 

20

 

Yes

 

For more information about which roles are featured on the Shortage Occupation List, see here

 

Salary of at least £20,480 per year or 70% of the going rate for the role, whichever is higher where the worker is a *new entrant to the labour market

 

 

20

 

Yes

Salary of at least £20,480 per year or the going rate for the role, whichever is higher and the role is in a listed health or education occupation

 

 

20

 

Yes

PHD relevant to their role

10 points

No – this attribute can be used where there worker has a lower salary

 

Relevant PHD in a STEM subject

 

10 points

As above

 

*To qualify as a new entrant, an individual must meet one of the following requirements:

  1. They are switching to the Skilled Worker route, from either a Student or Graduate visa;
  2. They are under 26 on the date of the application; or
  3. They are working towards a recognised qualification, or moving into a postdoctoral position.

 

  1. Intra-company Transfer (ICT) Visa

Overview

This visa route allows for multinational companies to transfer existing workers from their overseas operations to a UK branch of their company. Under the ICT visa, there are a further two sub-categories: (a) the Long Term Staff visa (LTS); and (b) the Graduate Trainee visa (GT). The primary difference between the two visa types is the GT visa allows for a lower salary and also a shorter period of qualifying employment, to reflect that this is a more junior role than the LTS route.

Further to the announced changes, this route largely remains unchanged; however, there are a few relevant 'tweaks' that are outlined below:

  • As before, this route does not lead to settlement, but it will become much simpler to switch into and out of this category, from other visa categories, whilst in the UK;
  • The 'cooling off' period has been removed; and
  • The 'high earner' salary has been reduced to £73,900. This is particularly relevant in regards to the maximum length of stay under this visa route, which can be up to 9 years for high earners.

For a more detailed overview of these changes, please see our previous article here.

Eligibility

To sponsor a worker under the LTS route, they must score at least 50 points, which can be achieved as follows:

  1. The worker has been employed by the sponsoring organisation for at least 12 months immediately before the date of the application, or the worker is a high earner (i.e. their salary is £73,900 or more per year) (30 points); and
  2. The worker's salary is at least £41,500 per year or the going rate for the role, whichever is higher (20 points). 

For the GT route, the worker must also achieve 50 points, however, the eligibility requirements differ from the LTS route, as set out below:

  1. The worker has been employed by the sponsoring organisation as part of a graduate training programme for at least 3 months immediately before the date of the application (30 points); and
  2. The worker's salary is at least £23,000 per year or the going rate for the role, whichever is higher (20 points).

As the Tier 2 ICT route does not lead to settlement, it is generally used where multinational companies require particular individuals to work from the UK, on a non-permanent basis. It is also a simpler application process than the Skilled Worker route, particularly as the worker is not required to meet the English language requirements.

If you are a multinational business, this is a highly efficient route to transfer your staff to work from a UK branch of the company. It is important to note that, in order to sponsor individuals under the Tier 2 ICT route, you must be able to show a direct link (by common ownership or control) with the overseas entities from which you wish to bring workers to the UK. For more information about this requirement, please do get in touch.

There is a lot to digest here and, arguably, the system is still slightly confusing. However, we anticipate that the updated rules will allow UK businesses to enjoy access to a wider pool of international talent.

Applying for a Tier 2 Visa

The application is completed via the online government portal, which can be located here. The application can be completed by the worker, the employer or an advisor can complete the application on their behalf.

Employers will need access to their Sponsorship Management System (SMS) to assign a Certificate of Sponsorship (CoS) to the prospective employee.  The SMS is the online platform where you can manage the Sponsor Licence.  The CoS is an electronic document, which contains the personal details about the individual you are planning to sponsor, together with specific details about the proposed role. Once you have completed and assigned the CoS, a sponsorship reference number will be generated and this should be provided to the worker in order for them to complete their online visa application form.

It is very important that all the information contained in the online visa form and CoS is 100% accurate, as this is the information, which the Home Office will consider when allocating points (as detailed above) and deciding whether to approve the application.  

Once the online application had been submitted, the worker will need to attend a Visa Application Centre in their home country to submit their hard copy documents (i.e. passport, marriage certificate… etc.), to confirm their identity and to finalise their application for the Home Office's consideration.  Most of these Centres have reopened following the Covid 19 outbreak.

Once the individual has attended this appointment, and their application has been submitted to the Home Office, a decision should be communicated to them within 3 to 6 weeks. However, given the current climate, together with the delaying effects of Brexit, processing times may be in excess of 8 weeks. There are options to purchase expedited services for an additional fee, should you need to accelerate the processing time (where a decision is generally made within 5 working days). 

Costs

Now more than ever is it important for employers to appreciate the costs associated with hiring an international workforce.  It is very easy for these to be overlooked by employers as they are grappling with the visa application process itself.  There are often 'hidden fees' that may not be obvious to businesses from the outset of the process. The government's guidance is not the easiest to follow, and so we have provided a clear breakdown of the associated costs which are likely to apply when sponsoring a worker under the Tier 2 route:

 

Skilled Worker visa

ICT LTS visa

ICT GT visa

 

Visa fee

Up to 3 years - £610

 

Up to 3 years (shortage occupation role) - £464

 

More than 3 years - £1,220

 

More than 3 years (shortage occupation role - £928

 

Up to 3 years - £610

 

 

More than 3 years - £1,220

£482

 

As highlighted above, there are some options available to expedite the visa processing times with premium and/or priority services, which will incur an additional fee.

In addition to the visa application fee, there are further costs for both visas.  These additional fees are the same for both the Skilled Worker and the ICT visas:

  1. Immigration Skills Charge (ISC)

Employers must pay £1,000 per skilled worker for the first 12 months, with an additional £500 charge for each subsequent six-month period. Discounted rates apply to charities and small business, who pay £364 for the first 12 months, and £164 for each additional 6 month period. Employers cannot lawfully pass the ISC on to the individual they are sponsoring.

  1. CoS Charge

As detailed above, the CoS holds the workers personal details and information about the job offered. The cost of issuing each CoS is £199 and this is usually paid by the employer.

When the CoS is assigned to the worker via the SMS, the employer will be required to pay both the CoS charge and the ISC at this stage.

  1. Immigration Health Surcharge (IHS)

This is also known as the NHS surcharge and essentially is a fee levied on the majority of UK visa applications. It costs £624 per year per worker.

In respect of the visa application and IHS fee, these can either be paid by the worker, or the employer may decide to cover all the fees associated with the visa application process. This is entirely down to both parties to decide, but we would suggest an agreement is reached prior to commencing the application process.

Take away points for employers

The updated Immigration Rules will undoubtedly have a huge impact on the UK job market and recruitment as EEA citizens lose their rights to free movement in the UK. As detailed in our previous article here, businesses can continue to employ EEA citizens in the usual way up until 1 January 2021. However, the updated Immigration Rules will apply to non-EEA citizens from the earlier date of 1 December 2020, and so it is very important for employers to get up to scratch with the amended requirements and process.

This article is for information purposes only and is not a substitute for legal advice and should not be relied upon as such. Please contact Lynsey Blyth to discuss any issues you are facing.