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Points to prove

14 July 08

The next phase of the points-based immigration system will come into force shortly, with the rules applying to skilled workers with a job offer

by Damir Duheric

The skilled migrant tier (tier 2) is aimed at enabling UK employers to recruit individuals from outside the European Economic Area (EEA) to fill a particular job that cannot be filled by a British or EEA worker. It will come into force in the third quarter of 2008. Employers across tier 2 will only be able to bring in migrant workers if they have a sponsorship licence issued by the UK Border Agency.

The following existing immigration categories will be replaced when tier 2 is introduced: work permit employment, ministers of religion, airport-based operational ground staff, overseas qualified nurses or midwives, sabbatical posts, seafarers, named researchers, training and work experience scheme, Jewish agency employees and overseas representatives (news media).

Everyone wanting to come to the UK under the points-based system will need prior entry clearance, for which they will not be allowed to apply without a certificate of sponsorship. However, a sponsorship certificate in no way guarantees that entry clearance will be issued.

In addition to the general arrangements, tier 2 skilled workers also include two further categories – sportspeople and ministers of religion.

As with the other tiers, an applicant wanting to come to the UK will need to show that he or she has enough points to qualify. Tier 2 has an overall pass mark of 70 points and contains three sections: an attributes test based on the certificate of sponsorship, qualifications and prospective earnings (pass mark 50 points); English language (10 points); and maintenance (10 points).

The attributes test

Shortage occupations

By June 2008 the Migration Advisory Committee was to produce shortage occupation lists for the UK, and a separate list for Scotland only. These lists will comprise skilled occupations where there are shortages that can be filled from outside the EEA.

Where a migrant is applying to enter the UK to fill a job from this list, they will receive sufficient points to proceed without reference to their prospective earnings or qualifications.

Resident labour market test

It may be necessary for an employer to recruit a migrant from outside the EEA to fill a particular job that cannot be filled by a British or EEA worker and is not on the shortage occupation list. This will only be possible if the employer is able to show that there is no suitably qualified worker from the UK or EEA available to fill the vacancy.

To do this the employer must have advertised the job for at least two weeks (one week if the prospective earnings are over £40,000). This measure ensures that resident workers will first have the opportunity to apply for a job before a migrant is recruited.

A job offer that passes this test scores 30 points.

Intra-company transfers

Intra-company transfers (also 30 points) allow employees of multinational companies to be transferred to a skilled post in a UK-based branch of the company. There is no requirement to meet the resident labour market test. Migrants must have been working overseas for the sponsoring company for at least six months, and while in the UK must earn a salary appropriate for that job in the UK.

Skill level

Whether the job is a shortage occupation, has passed the resident labour market test or is an intra-company transfer, it must be above the minimum skill level and be paid at the appropriate rate for that job in the UK labour market.

A job must be at NVQ3 level or above to be considered for this part of the tier. In order to avoid confusion as to what jobs are at this level, and for those which are borderline, the UK Border Agency will publish a list of occupations at or above level 3, and those which fall below this standard.

An NVQ3 qualification scores five points, a bachelors or masters degree 10, and a PhD 15.

Prospective earnings

Salary scores under PBS are:

£17,000-£19,999 – 5

£20,000-£21,999 – 10

£22,000-£23,999 – 15

£24,000+ – 20

Competence in English language

Migrants entering under the skilled worker part of tier 2 (shortage occupations and resident labour market test) will be required to speak English to a basic user standard. This will include an ability to understand and use familiar everyday expressions and very basic phrases, to introduce themselves and others, and ask and answer questions about basic personal details. Intra-company transferees will only be required to demonstrate the required English language ability if they wish to stay beyond three years.

Maintenance

Initially, out-of-country applicants will have to show they have £800 before they enter the UK and a further two-thirds of £800 for each dependant they intend to bring with them. These funds are intended to support the applicant and their family until they start receiving a salary.

Sportspeople

This sub-category is for elite sportspeople and coaches who are internationally established at the highest level, whose employment will make a significant contribution to the development of their sport at the highest level in the UK, and who intend to base themselves in the UK. Points will be awarded against three sets of objective criteria with an overall pass-mark of 70 points, broken down as above.

Migrants will need to be sponsored by a club (or equivalent) licensed by the Border Agency in order to be issued a certificate of sponsorship under this sub-category. Applications for a licence to issue such certificates must be accompanied by approval from the relevant governing body for the sport, being one that is recognised by one of the home sports councils (e.g. Sports England). Where a sport does not have a recognised governing body, the Border Agency will request advice from the sports councils and other relevant sporting bodies as to whether there is an appropriate body.

Ministers of religion

This category is for those coming to fill vacancies as religious workers with recognised religions. This includes anyone who preaches to their community and/or performs a pastoral role. Tier 5 will cover migrants coming to work temporarily in the UK as religious workers in a non-pastoral role, where the duties include performing religious rites but not preaching to a congregation.

Once again 70 points must be earned against the three sets of objective criteria with the same breakdown.

Sponsors wishing to recruit religious workers will need to provide evidence that they are a bona fide religious institution. They must ensure the migrant will be filling a genuine vacancy that cannot be filled with a suitably qualified member of the resident labour force. The job must be advertised for at least two weeks.

Migrants will be required to meet a level of English equivalent to the Council of Europe level B2 because of the need to communicate effectively with worshippers. This is approximately the same level that those seeking entry as ministers of religion must demonstrate under the current rules. They will also be expected to show maintenance funds of £800 plus additional funds for any dependants.

Application process

There will be a single application process, whether in or outside the UK. All applicants will provide documentary evidence (to be specified in guidance available before implementation) to support their claim for points.

Appeal

Section 4 of the Immigration, Asylum and Nationality Act 2006 removes the full right of appeal for those applying from abroad to come to the UK under the points system (except where the appeal is brought on human rights or race discrimination grounds). The legislation will take effect as each points system tier is implemented. Applicants will be able to seek one administrative review per application if they feel an error has been made in their decision.

Applications made from within the UK will retain a full right of appeal.

Damir Duheric is a senior solicitor with Morton Fraser Solicitors, specialising in immigration law. t: 0131 247 1292

e: damir.duheric@morton-fraser.como