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Tier 2 changes for sponsored skilled workers

  • Posted

From 6 November there will be a fundamental change to Tier 2 of the Points-Based System for sponsored skilled workers.

When the Points-Based System was first put forward in 2006, the Command Paper issued at the time said that the Certificate of Sponsorship would:

 “… replace the subjective tests under the current immigration rules which necessitate a judgement about whether … an applicant is able to do a particular job, which an employer is better placed to judge.” [1]

Employers had to jump through additional hoops to register as a Sponsor, and they had to take more responsibility for monitoring sponsored employees, but in return they could expect their decisions about skills requirements and hiring to be respected.

Changes to Appendix A of the Immigration Rules will mean that when a prospective employee applies for a visa or leave to remain in the UK, the caseworker assessing the application can explicitly take into account whether they think that the job is a 'genuine vacancy', or that it might have been 'tailored to exclude resident workers from being recruited.'

This opens up the possibility that even after an employer has registered as a Sponsor, and met all the requirements of the Resident Labour Market Test, to find that they have been unable to hire locally, a caseworker in Manila or Istanbul might still decide that the vacancy has been 'tailored', and refuse to grant a visa to their selected employee.

The possibility of losing out at such a late stage will be worrying for many employers.  Under the old Work Permit system, an employer would know early on whether there were any reservations about a particular job or employee, because Work Permit applications were submitted for approval by the Home Office well before an employee applied for a visa.  By contrast, Tier 2 Sponsors issue Certificates of Sponsorship based on their own assessment of whether the job in question qualifies.

A Tier 2 applicant for entry clearance cannot use the Tribunal system to appeal against a refusal, but can only apply for an 'administrative review'.  Tier 2 applicants inside the UK are likely to face a similar problem in the near future as the appeal-limiting provisions of the Immigration Act 2014 are rolled out.  Sponsors will need to decide whether they will support a review or an appeal, and how likely it is to succeed.  It will become all the more important for employers to describe job roles accurately and succinctly before making the decision to issue a Certificate of Sponsorship.

If you are affected by the changes to the law, or if you have any other immigration enquiry, please contact Kitty Falls, a solicitor in our Immigration team.

[1] A Points-Based System: Making Migration Work for Britain, March 2006, p. 19 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/272243/6741.pdf