UK business has been highly critical of the interim quota
imposed on 19 July for Tier 2 (General) COS. In
particular, the uncertainty around whether extensions would be
approved under this process has led to enormous business planning
issues. The UKBA appears to have taken these concerns
on board and on 1 November published revised guidance on how the
monthly pool of COS will be allocated.
Full details can be found at revised sponsor guidance. A new
application form has also been published COS(AR) application form.
Key Points
- Before the UKBA will approve a request, it will take into account how many COS a Sponsor has under its existing allocation. The application will not be approved if a Sponsor has a substantial number of unused COS left and this process should only be used when a Sponsor is approaching or has reached its full quota.
- A full resident labour market test must have been conducted. The UKBA will not consider a request from a Sponsor unless it can clearly prove that there is no-one else suitable from the resident labour market.
- All applications for extensions will be approved. This is a major departure from previous guidance. Although the UKBA had indicated that extensions would be given priority, no assurance had previously been given that an extension would be approved. Based on this new guidance, until 1 March (when the UKBA panel will meet for the final time) Sponsors should feel secure in assigning a Tier 2 (General) COS to any new hires who are legitimately needed in the UK (i.e. no other suitable candidates has been identified through advertising) without risking their ability to obtain Tier 2 (General) for existing personnel they need to retain in the UK.
- Once the extension applications have been approved from the exceptional pool, the remaining pool (if any) will be divided between new hires in shortage occupations and non-hires into non-shortage occupations. Please note - there is no guarantee that there will be any allocation left.
- Rankings will be based on salaries (the higher the salary the greater the chance the application will be approved). The following scoring system has been introduced:
(a) Salary is at or above £40,000;
(b) Salary is between £36,000 and
£39,999.99;
(c) Salary is between £32,000 and
£35,999.99;
(d) Salary is between £28,000 and
£31,999.99;
(e) Salary is between £24,000 and
£27,999.99;
(f) Salary is between £20,000 and
£23,999.99;
(g) Salary is under £20,000 (shortage occupations
only).
This is obviously good news for some sectors with high salary
thresholds (e.g. banking, finance) but will be less warmly received
by other highly skilled but less well-paid professions (such as
engineering, research scientists etc).
What does this mean for Sponsors?
Although the Government is committed to retaining the quota long
term, it has recognised that Sponsors must have certainty that they
can retain existing employees already here on Tier 2 (General) or
"old style" work permits. This new guidance will remove
some of the business planning difficulties for Sponsors and avoid
them needing to "save" their Tier 2 (General) allocation
to extend their existing employees if they have a legitimate need
to fill a role with a new hire between now and March 2011. However
it is important that any extension requests are completed and filed
correctly within the 60 days before the employee's leave
expires. As ever tracking expiries and diarising filing dates is
imperative.
We are continuing to lobby and liaise with the UKBA on the quota
system and will report on any future developments as they are
announced.
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 02/11/2010.
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