UNITED KINGDOM - Proposed Changes to Criteria for Tier 1 and Tier 2 Categories

  • United Kingdom
  • 12/15/2009
  • Berry Appleman & Leiden LLP

The UK Border Agency’s (UKBA) Migration Advisory Committee (MAC) has announced the December release of a number of recommendations regarding the Points-Based System’s (PBS) Highly-Skilled Migration route (Tier 1 Category) and sponsored-worker route (Tier 2 Category).

The MAC is comprised of a chair and four independent economists that provide independent, evidence-based advice to the UKBA on specific sectors and occupations in the British labor market for which shortages exist and that can responsibly be filled by migration. The MAC also assesses the need for foreign labor based on the UK’s current economic climate.

The MAC’s findings recommend how the UKBA can make changes to the criteria for, and/or the administration of, the PBS to attract the “brightest and best” to come to the UK to work. The UKBA will take these recommendations into consideration to formulate any policy changes in 2010 and beyond.

TIER 2 – QUALIFYING EXPERIENCE FOR INTRA-COMPANY TRANSFEREES INCREASED FROM 6 MONTHS TO 12 MONTHS

The UKBA introduced the Tier 2 to attract skilled workers with a job offer (i.e., “sponsored worker”) to fill gaps in the British labor market. This category includes intra-company workers (ICT) and shortage-occupation skilled workers. In August 2009, the MAC introduced recommendations for the UKBA to implement new requirements or amend the current requirements for several Tier 2 categories. As mentioned in BAL’s November 30 client alert, the British government has responded to claims that the Tier 2 ICT category is providing a loophole for multinational companies to bring foreign workers into the UK.

As of early 2010, assignees in the Tier 2 ICT category will be required to have at least 12 months’ qualifying experience (instead of the present six months) with their employers outside the UK immediately prior to transfer. Also, it is expected that the Tier 2 ICT category will be closed as a route to permanent settlement in the UK.

The UKBA has yet to set the policy for this new directive. BAL expects to provide further information relating to these changes in January 2010. In the meantime, clients planning to make UK assignments in the first quarter of 2010 are urged to contact BAL to discuss how these transfers may be affected by this change in policy.

TIER 1 – PROPOSED CHANGES TO CRITERIA

On December 4, the MAC announced the release of its proposed recommendations for the Tier 1 Category. The Tier 1 Category is for non-European Union/non European Economic Area foreign nationals who are applying for unrestricted authorization to work in the UK on their personal merits as highly-skilled migrants rather than as sponsored workers.

The UKBA introduced the Tier 1 (General) Migrant of the PBS for foreign nationals living in the UK to replace the Highly Skilled Migrant Program (HSMP).
On June 30, 2008, three additional sub-tiers were introduced, and the program was extended to include applicants residing overseas. The four sub-tiers are now Tier 1 (General) Migrant, Tier 1 (Investor), Tier 1 (Entrepreneur) and Tier 1 (Post-Study Work). This is the MAC’s first in-depth review and analysis of how well the Tier 1 Category is working to fill shortage-occupation areas and of whether the recommendations are robust enough for the UK to remain competitive in the global labor market.

The recommendations that most seem to affect professional workers assigned to the UK are as follows:

  • The points available under Tier 1 General would be updated to ensure that only the “most highly-skilled migrants” are admitted through this route;
  • The initial Leave to Remain (i.e., duration of stay) entitlement under the Tier 1 General route would be reduced from three years to two years, with a three-year extension subject to evidence that the individual remains in highly-skilled employment;
  • Applicants with an undergraduate degree as their highest academic qualification would be allowed to apply under the Tier 1 General route, subject to evidence of high previous earnings. While “high earnings” has not yet been defined by the UKBA, current Tier 1 applicants are awarded the most points when an applicant’s previous earnings are equivalent to at least £40,000;
  • Professional qualifications (e.g., overseas professional degrees in law and accounting) would be considered as equal to British Masters’ Degrees;
  • For Tier 1 General, there is calibration of points for age. Applicants aged 39 and under would receive points, with no points awarded to those aged 40 and over;
  • The Government would thoroughly review the salary multipliers used to convert earnings from outside the UK into UK equivalents (i.e., applicants’ previous earnings would be calculated by converting non-sterling currency to Sterling (British Pounds), and then the Sterling figure is converted to points);
  • With respect to the requirement that an applicant will maintain sufficient funds, the UKBA would consider the operational feasibility of having a UK employer act as a guarantor rather than having the applicant bear personal proof of evidence. (It is doubtful this will materialize, since, unlike Tier 2, Tier 1 is not dependent on the individual’s having a prior offer of employment in the UK. This proposal would clearly favor those with job offers over those without.);
  • Tier 1 General migrants with previous annual earnings of at least £150,000 would be awarded the full 75 points with no additional points required for age, qualifications or UK experience.

Clients may read the MAC’s full Tier 1 Category recommendations to the UKBA at the following:
http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/pbsanalysis-09/041209/mac-december-09?view=Binary.


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