Further to our Law-Now of 7 August 2009, the UK Border Agency (UKBA) has provided clarification in relation to promotions/change of employment applications, and situations in which migrants under Tier 2 (ICT) would be deemed to be displacing settled workers.

Change of employment/promotions

The new sponsor guidance states that a change of employment situation arises where:

  • the migrant is continuing to work for the same sponsor, but their core duties and responsibilities change; or
  • where their position in the hierarchy of the sponsoring organisation changes (for example due to a promotion).

No concrete definition of "promotion" or "change of role" has been provided. The degree to which a job will change as a result of a career progression varies from company to company, which is why the guidance outlines these general principles rather than setting out prescriptive rules and definitions. It has now been clarified that where the employee's duties and responsibilities remain essentially the same, and there is only a "small" increase in pay and responsibility, ("small" not being defined), then this would not merit a change of employment application.

Displacement of resident workers

The new guidance also states that "migrants entering the United Kingdom under Tier 2 (Intra-Company Transfer) must not be directly replacing a settled worker."

This principle applies throughout Tier 2, the core purpose of which is to ensure that migrant workers are only sponsored where there are no suitable resident workers available.

The resident labour market test (RLMT) is intended to test this principle under Tier 2 (General). However, as there is no RLMT for Tier 2 (ICT), the UKBA consider that the restriction needs to be referred to separately in the guidance to ensure that sponsors are aware of it.

The UKBA have further clarified that they would not consider a resident worker to have been displaced by a migrant worker, if the resident worker has not been disadvantaged and has left the post voluntarily, for example through:

  • voluntarily taking up a new role within the company or a new role within another company
  • voluntary retirement
  • promotion
  • holiday or maternity leave (provided they were not prevented from returning to the post after their maternity leave ended due to the employment of a migrant worker in the post)

The UKBA would also not consider a resident worker to have been displaced by a migrant worker if the resident worker were dismissed, for example due to incompetence or gross misconduct. In this case the individual would not be considered to be a "suitable settled worker" as they would clearly no longer be suitable for the post.

Alternatively, the UKBA would consider a resident worker to have been displaced by a migrant worker if the resident worker were made redundant, as the resident worker would not have left the post voluntarily.

The UK Border Agency has further clarified that where a new role is created, they would expect it only to be filled by a Tier 2 (ICT) migrant if there were no suitable resident workers available. If prior company experience or company-specific knowledge is an essential requirement to be able to do the job, this will rule out any settled workers being suitable and therefore would not require an RLMT. However, if such company experience is not an essential requirement, they would expect a RMLT to take place.

Conclusion

Although a general principle has been stated in relation to change of employment applications, it seems that these will continue to be decided on a case-by-case basis. This is principally due to the fact that job changes and career progressions are company and role specific. The guidance is intended to capture the same types of situations as changes of employment under the work permit arrangements, where a fresh RLMT was required in cases where the permit holder's duties were considered to have changed due to promotion, demotion or restructuring, as the job was considered to be different from that for which approval was originally granted.

It has been explicitly stated that the Tier 2 principle of non-displacement of resident workers applies to both Tier 2 (General) and Tier 2 (ICT), and the issue of what constitutes "displacement " has also been further clarified. However, there is no equivalent RLMT test under the Tier 2 (ICT) route to evidence that there were no resident workers capable of doing an ICT role. It is therefore the sponsor's responsibility to ensure this principle is adhered to for each Tier 2 (ICT) hire.

This article was written for Law-Now, CMS Cameron McKenna's free online information service. To register for Law-Now, please go to www.law-now.com/law-now/mondaq

Law-Now information is for general purposes and guidance only. The information and opinions expressed in all Law-Now articles are not necessarily comprehensive and do not purport to give professional or legal advice. All Law-Now information relates to circumstances prevailing at the date of its original publication and may not have been updated to reflect subsequent developments.

The original publication date for this article was 20/08/2009.