ECS

April 2012 – Change to Tier 2: introduction of a 12-month exclusion rule

Since 6 April 2012, Tier 2 migrants who leave the UK have to wait at least 12 months before applying for a new Tier 2 visa from abroad.

The 12-month exclusion period from the United Kingdom, applies retrospectively to all Tier 2 migrants, (with the exception the Tier 2 Short Term Intra Company Transferees returning to the UK as Tier 2 Long Term Intra Company Transferees), which include anyone who:

 

a)      has previously been granted entry clearance under T2 General or T2 ICT; or

b)      had leave to remain under T2 General or T2 ICT ;

at any time during the last 12 months immediately prior to the date of their new application.

The potential issues, which may arise from this ‘cooling off period’ rule are as follows:

-       If a visa or resident permit expires while an individual is abroad, he or she will be unable to return to the United Kingdom until 12 months have elapsed from the date of expiry of the previous permission to stay in the United Kingdom.

-       The 12-month exclusion period will affect ICT migrants who initially entered the United Kingdom after April 6 2011 (and therefore unable to switch into Tier 2 General in country) and who are in the process of changing employers. All visa applications will be refused until 12 months have elapsed from the date of expiry of the individual’s current permission to stay in the United Kingdom.

-       Employers will be unable to sponsor an individual from abroad under Tier 2 General if the individual has previously worked in the United Kingdom in any Tier 2 category until 12 months have elapsed from the expiry date of the individual’s previous permission to stay in the United Kingdom.

 

By way of illustrating the implications of this new policy further, we provide the following case studies.

Case study A

- The individual was issued a 3-year T2 ICT Long Term Staff visa on 1st August 2011 to work for the UK subsidiary of his employer.

- The individual stayed in the UK only 6 months before being transferred back to his country of usual employment.

- You have now offered the individual a job in the UK starting on the 1st of June 2012.

Will this candidate be granted a visa?  This person will not be able to apply for a new visa until his previous visa has been withdrawn by his sponsor and 12 months have elapsed. For instance, if his employer cancelled his certificate on the 1st of February, the individual will not be able to apply for entry clearance as at Tier 2 (General) migrant until the 1st of February 2013

 

Case study B

- The individual was previously issued with Tier 2 General valid until March 2013.

- The individual’s employment was terminated and the termination of the employment was reported to the UKBA in December 2011.

- The individual left the UK in December 2011.

- You have completed the resident labour market test and will be submitting a request for a restricted certificate of sponsorship shortly.

Will this candidate be granted a visa?  No, this applicant will not be able to apply to return to the UK as a sponsored migrant until December 2012. As the advertising campaign is only valid for 6 months it is likely that you will have to re-advertise and file a request for a restricted certificate no earlier than October 2012.

 

Case study C

- Tier 2 ICT Long Term staff migrant previously worked for you in the UK for 3 years from May 2009 to April 2012.

- Departed the UK in April 2012 to resume his employment with your sister company in Singapore.

- Due to a new 26 months project starting on 5 May 2012, you now need him back in the UK as soon as possible.

Can you bring him back to the UK now? No, the individual has to remain outside of the UK for 12 months. He will therefore be unable to re-enter as a Tier 2 migrant until April 2013.

 

Case study D

- Tier 2 ICT Short Term staff visa issued for period of 12 months.

- The individual departed the UK early to resume his employment with your sister company abroad.

- You now wish for the individual to transfer back to the UK.

Can your bring him back to the UK?  Yes, provided that the individual applies for entry clearance under the Tier 2 (ICT) Long Term Staff category. This will require a salary of at least £40k or the appropriate rate as defined by the UKBA Occupation Codes of Practice (whichever is greater).

 

Case study E

- The individual was previously was issued with a Tier 2 ICT Short Term staff visa.

- Having finished his training in the UK the individual left the UK to resume his employment for the same employer overseas.

- The individual has now left his job and joined a new company located overseas.

- You are now considering offering him a role in the UK and sponsoring him as a Tier 2 General.

Can you sponsor him now? No, you will need to wait until 12 months have elapsed since the expiry of his Tier 2 ICT Short Term Staff visa.

 

Case study F

- The individual holds a Tier 2 General valid until September 2013.

- The individual is in the UK and has not breached any immigration rules since first entering the country.

- The individual has accepted a job offer from you.

Can you sponsor him now? Yes, the individual can submit an application for further leave under Tier 2 (General), provided that the new application is made whilst he is in the UK and his leave is still valid.

 

For further information please contact us.