At Courtyard Solicitors LLP, we can act for you in relation to applications for people who wish to come to the United Kingdom to work. This area of law has changed radically with a new tier points based system which replaces many of the previous rules.
i) BACKGROUND INFORMATION ON THE NEW POINTS BASED SYSTEM AND OTHER NEW MEASURES
The Government has introduced a five year strategy with regard to working in the United Kingdom. The key measures in the strategy are to include:
• A transparent points system for those coming to the United Kingdom to work or study. The system will consist of five new tiers: highly skilled, skilled, low skilled and student/specialist (such as football players), temporary workers and will sweep away the complexity of the current system. Points will be adjusted to respond to changes in the labour market giving the system flexibility and control.
• Financial bonds for specific categories where there has been evidence of abuse, to guarantee that migrants return home.
• An end to chain migration – no immediate or automatic right for relatives to bring in more relatives.
• An end to appeals when applying from abroad to work or study in the United Kingdom.
• Only skilled workers allowed to settle long-term in the United Kingdom and English language tests for everyone who wants to stay permanently.
• Fixed penalty fines for employers for each illegal worker they employ as part of the drive against illegal working. Each migrant will need a sponsor (normally their employer), who must work with the government to ensure that the migrant complies with the immigration rules. There is a £2,000 fixed penalty fine for employers for each illegal worker.
ii) OVERVIEW OF THE POINTS SYSTEM
The new migration system will be a five-tier scheme.
• Tier 1: Highly skilled individuals to contribute to growth and productivity.
• Tier 2: Skilled workers with a job offer to fill gaps in the United Kingdom labour force.
• Tier 3: Limited numbers of low-skilled workers needed to fill temporary labour shortages.
• Tier 4: Students.
• Tier 5: Youth mobility and temporary workers: people allowed to work in the United Kingdom for a limited period of time to satisfy primarily non-economic objectives.
This system has replaced the old system of work permits etc with an Australian-style points based system. Tiers 1, 2 and 4 will entitle people in them to switch between tiers provided they meet the set requirements. Whereas, people in Tiers 3 and 5 (which are only temporary categories), will not be able to switch.
Tiers 1 and 2 may lead to settlement. Dependants will be allowed under tiers 1, 2, 4 and 5. However, under Tier 4 (students) or Tier 5 (temporary workers) dependants will not be allowed to work if the main applicant has less than 12 months leave in the United Kingdom. In relation to all the points based system applications, applicants must not fall within one of the general grounds for refusal. We will be able to advise you in relation to this.
If the application is refused the decision will be subject to restricted appeal rights which we can go through with you and, if necessary, represent you.
iii) POINTS BASED SYSTEM IN DETAIL TIER 1
This tier was introduced on the 30 June 2008 and replaced eight of the old immigration categories i.e. Highly Skilled Migrant Programme; Investors, Self-Employed Lawyers; Business Persons; Writers, Composers and Artists; International Graduate Scheme; Innovators; Fresh Talent: Working in Scotland Scheme.
Tier 1 is aimed at highly skilled people to encourage them to come to the United Kingdom to look for work or to set up on a self-employed basis.
You can make this application from outside the United Kingdom or in some cases by switching from another category whilst already in the United Kingdom.
The unique part of Tier 1 is that applicants do not require a sponsor whereas all applicants in Tiers 2 to 5 must submit a certificate of sponsorship from a licensed provider.
Tier 1 covers four different routes of entry into the United Kingdom:
1. General – For those migrants who seek highly skilled employment, or who wish to be self-employed or set up a business in the United Kingdom.
2. Entrepreneurs – For those investing in the United Kingdom by setting up, or taking over, and being actively involved in the running of a business.
3. Investors – For high net-worth individuals making a substantial financial investment in the United Kingdom. Investors can be in paid employment.
4. Post-study Work – Designed to retain the most able international graduates who have studied in the United Kingdom, and thus boost the United Kingdom as a destination for international students.
QUALIFICATION UNDER TIER 1 (GENERAL)
Tier 1 (General) allows highly skilled persons who obtain the set points to immigrate to the United Kingdom. The advantage of Tier 1 over the other Tiers is that the applicant does not need a sponsor in order to apply. This is the perfect application to make if you can fulfil the criteria which we can go through in detail with you. In summary you will need to obtain set points under three different headings. These are as follows:
a) 75 points under Appendix A (Attributes – classed as Qualifications, Previous earnings, and Age);
b) 10 points under Appendix B (English Language);
c) 10 points under Appendix C (Maintenance) for attributes.
a) ATTRIBUTES – APPENDIX A
Qualifications
i) Bachelor’s degree = 30 points
ii) Master’s degree = 35 points
iii) PhD = 50 points
There are various rules in relation to the criteria for qualifications which we can go through with you.
Previous Earnings
i) £16,000-£17,999 = 5 points
ii) £18,000-£19,999 = 10 points
iii) £20,000-£22,999 = 15 points
iv) £23,000-£25,999 = 20 points
v) £26,000-£28,999 = 25 points
vi) £29,000-£31,999 = 30 points
vii) £32,000-£34,999 = 35 points
viii) £35,000-£39,999 = 40 points
ix) £40,000 + = 45 points
There are various criteria in relation to earnings that we can discuss with you in order to maximise your points, including using the multiplier when assessing a persons salary in terms of pounds. The multiplier converts non sterling currency into sterling and then this figure is changed into points. The multiplier will work out the value of a salary in another country in comparison to sterling thus making it easier to obtain the points.
UK Experience
5 extra points can be earned in relation to qualifications obtained in the United Kingdom and earnings in the United Kingdom. Again, we can discuss these with you and advise on the best course of action.
Age
Points will be awarded in relation to age as follows:
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1. Applications for leave to remain under Tier 1 – Generally
AGE POINTS
Under 28 20
28-29 10
30-31 5
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2. Applications for leave to remain, where the applicant previously had leave as a Tier 1 migrant
AGE POINTS
Under 31 20
31-32 10
33-34 5
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3. Applications for leave to remain where the applicant previously had leave as a HSM
AGE POINTS
Under 30 20
30-31 10
32-33 5
b) ENGLISH LANGUAGE – APPENDIX B
10 points are required in this section by demonstrating knowledge of English. The standard required is similar to that of GCSE pass between A and C. There are various evidential ways of proving this which we can go through with you. Further, it will be deemed that you have the requisite standard if you come from certain countries.
c) MAINTENANCE – APPENDIX C
This section provides 10 points if you are able to show funds in excess of:
a) £2,800 – if applying for entry clearance; or
b) £800 – if applying for leave to remain
There are also requirements for further funds where an applicant is also applying for a dependant. The rules on maintenance are very strict and we can advise you in order to make sure that you have complied with them all. Finally, you must ensure that all the other requirements of the immigration rules are met. These are standard rules you must comply with in immigration applications and include a list of General Grounds of Refusal, which if you fall within it, means your application will be refused.
OTHER PROVISIONS.
Employment as a doctor in training.
The rules prevent a Tier 1 migrant and new applicants under the HSMP, from applying for jobs as a doctor in training. The exclusion does not apply to those who already have leave as a Highly Skilled Migrant, or as a Postgraduate Doctor or Dentist.
Family Members
A Tier 1 migrant is entitled to have their spouse, civil partner, unmarried or same sex partner and children (under 18) join them in the United Kingdom.
QUALIFICATION UNDER TIER 1 (ENTREPRENEURS)
This route is for migrants who wish to establish, join or take over one or more businesses in the United Kingdom.
In order to qualify under this tier, an applicant will need to obtain set points under three different headings. These are as follows:
a)75 points under Appendix A (Attributes);
b)10 points under Appendix B (English Language);
c)10 points under Appendix C (Maintenance) for attributes.
In addition, the Applicant must not fall under one of the general grounds of refusal which we will advise you on.
a) ATTRIBUTES – APPENDIX A
Investment
i) Access to not less than £200,000 = 25 points
ii) The money is held in one or more regulated financial institutions = 25 points
iii) The money is disposable in the UK = 25 points
We can discuss these with you in order to make sure that you maximise your points.
NB Different figures and rules apply where you already have entry clearance or leave to remain, but we can advise you on these.
Leave under this heading is subject to various other conditions which we can advise you on.
b) ENGLISH LANGUAGE – APPENDIX B
Knowledge of English is required to a similar standard of GCSE pass between A and C. There are various other evidential ways of proving that your English is of the correct standard including the fact that you are from certain countries. We can discuss these with you.
c) MAINTENANCE – APPENDIX C
This section provides 10 points if you are able to show funds in excess of:
i) £2,800 – if applying for entry clearance; or
ii) £800 – if applying for leave to remain.
There are also requirements for further funds where an applicant is also applying for a dependant.
OTHER PROVISIONS
Family Members A Tier 1 migrant is entitled to have their spouse, civil partner, unmarried or same sex partner and children (under 18) join them in the United Kingdom.
QUALIFICATION UNDER TIER 1 (INVESTORS)
This route is for high net worth individuals making a substantial financial investment to the United Kingdom. In order to qualify for entry under this tier an applicant will need to obtain 75 points.
These are as follows:
a) has money of own held in a regulated financial institution and disposable in the United Kingdom amounting to not less than £1 million; or
b) i) own personal assets which exceed £2,000,000 in value, provided they are not subject to any liabilities; and
ii) have money under their control held in a regulated financial institution and disposable in the UK, of at least £1,000,000, which may include money loaned to them provided it was loaned by a financial institution regulated by the Financial Services Authority.
English Language
People applying under this category will not be expected to work and as such the requirement to speak English to a certain standard is not required.
Maintenance
This will not apply as clearly any applicant will have more than sufficient funds in order to maintain themselves.
To summarise, the requirements for English Language and Maintenance have been waived for this application.
QUALIFICATION UNDER TIER 1 (Post Study Work)
This route is for international graduates who have studied in the United Kingdom. It replaces the International Graduate Scheme and the Fresh Talent: Working in Scotland scheme. You are required to transfer to another immigration category after two years and you should be aware that time spent under this category does not count towards permanent residence.
In order to qualify under this category you will be required to score the requisite points in the following:
a) 75 points under Appendix A (Attributes);
b) 10 points under Appendix B (English Language);
c) 10 points under Appendix C (Maintenance) for attributes.
Further, the Applicant must also not fall under one of the general grounds of refusal.
a) ATTRIBUTES – APPENDIX A
i) Has successfully obtained either [20 POINTS]:
• A UK recognised bachelor’s degree; or
• A UK recognised postgraduate degree; or
• A UK postgraduate certificate or diploma; or
• An HND from a Scottish institution.
ii) Obtained relevant qualification at a UK institution that is either [20 POINTS]:
• A recognised or listed UK body; or
• On the Tier 4 sponsors register (once in place); or
• If claiming points for a Higher National Diploma from a Scottish Institution, that diploma was earned at a publicly funded institution or higher education or a bonafide Scottish private education institution which maintains records of enrolment and attendance.
iii) Obtained the qualification while in the UK with [20 POINTS]:
• Student (Tier 4) Leave; or
• As a dependant of someone with valid leave in an immigration category permitting dependants in the UK.
iv) Made the application within the last 12 months of obtaining the qualification. [15 POINTS]
v) If you are applying after having leave to remain in either the International Graduates Scheme, the Science and Engineering Graduates Scheme, or the Fresh Talent: Working in Scotland Scheme you will receive the requisite points [75 POINTS].
b) ENGLISH LANGUAGE – APPENDIX B
The knowledge of English requirement is waived for Post-Study Work because it is assumed that English language proficiency was required to obtain the eligible qualification.
c)MAINTENANCE – APPENDIX C
This section provides 10 points if you are able to show funds in excess of:
a) £2,800 – if applying for entry clearance; or
b) £800 – if applying for leave to remain
There are also requirements for further funds where an applicant is also applying for a dependant.
OTHER PROVISIONS
Family Members
A Tier 1 migrant is entitled to have their spouse, civil partner, unmarried or same sex partner and children (under 18) join them in the United Kingdom.
TIER 2
This tier was implemented on 27 November 2008 and is aimed at non European Economic Area skilled workers. Also if you are a Bulgarian or Romanian national, you may need a work permit. Applicants must have a job offer from a licensed sponsor and a valid certificate of sponsorship as well as passing the points based assessment.
There are four categories under Tier 2:
General: This is for workers coming to the United Kingdom with a job offer to fill an employment gap that cannot be filled by a settled worker, which may or may not be on the Shortage Occupation List.
Intra Company Transfers: This is for employees of multi- national companies who are being transferred by an overseas employer to a skilled job in the United Kingdom based branch of the organisation.
Sports People: This is for elite sport people and coaches whose employment will make a significant contribution to the development of their sport at the highest level.
Ministers of Religion: This is for those people coming to fill a vacancy as a Minister of Religion, Missionary or Member of Religious Order.
TIER 2 - GENERAL CATEGORY
This Tier relates to people coming to the United Kingdom with a job offer where that job place cannot be filled by a settled worker.
An applicant under this Tier will need to score 70 points from the following three headings:
1. Attributes (50 points required);
2. English language skills (10 points required); and
3. Maintenance (10 points required).
ATTRIBUTES
An applicant must score at least 50 points in this category. An applicant can score points under three category, which are:
• Sponsorship
• Qualifications
• Prospective earnings
There are varying points under this heading depending on the job being offered. If the job is included in the Home Office list of jobs in shortage then 50 points will be awarded and applicants will then only have to score a further 20 points under Maintenance and English.
If the job is not on the Home Office list of jobs in shortage, then unless it is an intra-company transfer, the job offer will need to pass the Labour Market Test. Both of these will only score a maximum of 30 points so a further 20 points in total will need to be earned under qualifications and prospective earnings. We can advise you on all of these matters including which jobs are on the shortage list and what employers will need to do in order to comply with the Residential labour market test.
ENGLISH LANGUAGE
With regard to the English criteria of the points system applicants will also need to satisfy the English Language requirement which will score a maximum of 10 points. Applicants can demonstrate this in one of the following ways:
• By passing an acceptable English language test.
• By being a national of a majority English speaking country.
• By successfully completing a degree equivalent to a UK Bachelors degree taught in English.
MAINTENANCE
With regard to maintenance the employee will have to satisfy the Maintenance Requirements, as will each of their dependants. A maximum of 10 points can be scored under the maintenance heading. The maintenance requirements are that the applicant must be able to show the equivalent of £800 worth of personal savings at the time of the application, and three months prior to the date of the application. The sum for each dependent is the equivalent of £533. There are specific rules in relation to the evidence showing this information which we can advise you on.
Applicants will be able to apply for settlement i.e. Indefinite Leave to Remain after a continuous period of settlement of five years.
TIER 2 - INTRA-COMPANY TRANSFERS
We can advise you on these areas at a consultation meeting.
TIER 2 – SPORTSPERSONS
We can advise you on these areas at a consultation meeting.
TIER 2 – MINISTERS OF RELIGION
We can advise you on these areas at a consultation meeting.
TIER 3 – UNSKILLED MIGRATION
This tier is related to unskilled and temporary employment which is mainly seasonal in nature. It was aimed to replace categories under the old system such as Seasonal Agricultural Workers Scheme and the Sector Based Scheme. This Tier has been suspended from implementation by the Government for an indefinite period of time. We suggest that you maintain regular checks in relation to this area to see if, and when, the Government introduce the scheme.
TIER 4 – STUDENTS Please see our student immigration page.
TIER 5 – TEMPORARY WORKERS
Tier – 5 is concerned with temporary workers. Applicants under this tier will be required to have a sponsor. It is only open to low risk countries with whom the United Kingdom have good return arrangements and which offer similar opportunities for United Kingdom citizens to spend time there. The maximum period of stay will be two years.
There will be the following sub-categories under Tier – 5:
• Creative and sporting
• Charity workers
• Religious
• Government authorised exchange
• International agreement
Creative and Sporting
Applicants will need to score 40 points from the sponsorship and maintenance categories.
Sponsorship
Applicants must score 30 point in this category. This is done by showing that they have a valid certificate of sponsorship issued by one of the UK Borders’ licensed sponsors.
The sponsor required and the conditions, will be dependent upon which sub-category the applicant applies under i.e. Creative and Sporting, Charity Worker etc. We will be able to advise you accordingly.
There are other general rules applicable under sponsorship which we will be able to discuss with you.
Maintenance
An applicant must score 10 points in this category by showing that they are able to support themselves whilst they are in the United Kingdom. They are able to do this in one of two ways:
• They can show they have at least £800 in savings that they will be able to use whilst in the United Kingdom; or
• Their certificate of sponsorship has been issued by an A-rated sponsor and their sponsor will certify that they will not claim benefits whilst in the United Kingdom.
TIER 5 – YOUTH MOBILITY
The Youth Mobility Scheme is for young people from participating countries to come to the United Kingdom to experience life here. Under this system the applicants’ national government is the sponsor. However, British overseas citizens, British overseas territories citizens and British nationals (overseas) can also apply under the scheme and do not need a sponsor. Currently the countries on the scheme are:
• Australia
• Canada
• New Zealand
In order to apply you will be:
1 a citizen of a country taking part in the scheme or a British overseas citizen, British overseas territories citizen or a British national (overseas);
2 18 years old or over when your visa lets you come to the United Kingdom and under 31 years old when you apply;
3 Have £1,600 in available maintenance (funds) when you apply.
There are also set rules as to who cannot apply, for example, if you have been in the United Kingdom at any other time as a working holiday maker or under the youth mobility scheme.
As can be seen above you will score points for Nationality, Age, and Maintenance. The points are as follows:
Nationality = 30 points
Age = 10 points
Maintenance = 10 points
The period of stay that will be granted will be a maximum of 24 months which will not count towards any future application for Indefinite leave to Remain and you will not be able to switch from this category.