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06 April 2013 Changes to the Immigration Rules which HR Advisors and
their international staff must know

 

 

1.    Tier 1 (Exceptional Talent)

 

  • This route caters for those who are internationally recognised at the highest level or have demonstrated exceptional promise in the fields of science, humanities, engineering and the arts.

 

  • An amendment was made to the Rules to allow “any” migrant in the Tier 2 category to switch into Tier 1 (Exceptional Talent). Previously only Tier 2 (General) migrants could switch to this status.

 

2.    Tier 1 (Graduate Entrepreneur)

 

  • This caters for international graduates who have been identified by Higher Education Institutions as having developed world class innovative ideas or entrepreneurial skills.

  • A change was made to allow a Tier 2 (General) migrant to switch to Tier 1 (Graduate Entrepreneur) if the Tier 2 (General) migrant has been working with a UK Higher Education Institution as a post-doctoral researcher.

 

3.    Tier 2 (General and ICT)

 

  • The Codes of Practice

  

             --  These set out which occupations are skilled to the appropriate level

                   and the minimum appropriate salary rates for jobs in each

                   occupation.

 

             --  All Standard Occupation Codes were changed in the 06 April 2013

                  Rules.

 

             --  The Codes introduced a “new entrant” rate of salary. A “new entrant”

                   is described as:


                   o     UK Graduates switching to Tier 2;


                   o     Graduate recruits where the employer has used a University

                           “milkround” to satisfy the RLMT;

 

                   o     Tier 2 (ICT) Trainee; and


                   o     A migrant who is aged 25 or under on the date of the initial Tier 2

                          application.


             --  The method of the RLMT is no longer in the Occupation Codes.

                  Instead, overarching advertising requirements and criteria for

                  identifying suitable media are being set out in the section of Appendix

                  A of the Immigration Rules which relates to attributes for Tier 2

                  (General) migrants. These changes give employers more flexibility

                  as to the most appropriate media to advertise for the role on offer

                  based on their sector.

 

  • New minimum salary thresholds were introduced:

              --   Jobs which qualify for Tier 2 (General):  £20,300


              --   Jobs exempt from advertising in Jobcentre Plus:  £71,000


              --   Jobs exempt from the RLMT:  £152,100


              --   Jobs which qualify for Tier 2 (ICT) (short term, skills transfer,

                    graduate trainee):  £24,300


              --   Jobs which qualify for Tier 2 (ICT) (long term staff):  £40,600


              --   Tier 2 (ICT) migrants who can extend their stay up to 9 years:

                    £152,100


              --   Applications for Indefinite Leave to Remain (PhD level and shortage

                   occupations are exempt) . after 06 April 2016 applicants will need to

                   be earning a minimum of £35,000 and applicants after 06 April 2018

                   will need to be earning £35,500 (or the minimum salary under the

                   relevant code, whichever is higher).


  • The Shortage Occupation list:

              --  This is a list of occupations which are recognised by the UKBA as

                   being difficult to be filled by UK residents. Shortage occupations are:


                   o    Not subject to the RMLT;


                   o    Given a higher priority/ranking when allocating Restricted

                         Certificates; and


                   o    Exempt from the minimum salary threshold of £35,000 (or

                         £35,500) for ILR.

 

               --  This list was updated in April 2013.

 

  • Tier 2 (ICT) migrants earning a minimum of £152,100 are not subject to the 12 months “cooling off period” i.e. such migrants will be able to return immediately under the Tier 2 regime.

 

  • Tier 2 (ICT) migrants earning £152,100 do not have to satisfy English language ability when extending their stay beyond three years.

 

  • You will be aware that there were already provisions in the Immigration Rules to allow for reductions in salary based on maternity, paternity or adoption leave, long term sick leave and company-wide reductions in pay to avoid redundancies. Clarification was given in the April 2013 changes that employers can reduce salaries for these reasons so long as the minimum salary does not fall below the appropriate rate for the occupation or the minimum salary for the relevant Tier 2 (ICT) category.

 

  • Tier 2 (General) and Tier 2 (ICT) migrants who exchange some of their employment rights for shares as part of the Governments “employee-owner initiative” will not have the value of their shares included when assessing the appropriate level of pay/salary.

 

  • The April 2013 changes gave clarification confirming that Tier 2 (General) migrants can apply for extensions to continue working in the same occupation (not just the same job) with the same sponsor without another RLMT being carried out.

 

4.    Conclusion

 

Please note that this is a bullet point summary of the main changes that took
place in December 2012 and therefore if you would like further expansion or
clarification on any of the points raised in this document please contact the
author.

 

 

 

Thalej Vasishta

Paragon Law

thalejv@paragonlaw.co.uk

0115 9644104

www.paragonlaw.co.uk