UK Immigration & Nationality Lawyers

I run an IT consultancy business which sponsors Tier 2 migrants and I am concerned about changes to the Immigration Rules coming into effect on 6 November 2014. My employees are often supplied to clients on a contract basis and spend a significant amount of time working on client premises. Is this allowed under the new regulations?

The Statement of Changes in Immigration Rules published on 16 October 2014 only affects new Tier 2 visa applicants who will not be get any points for certificates of sponsorship issued for a migrant who would be providing an ongoing routine service to a third party. These rules coming into effect on 6 November 2014 are intended to prevent a Tier 2 sponsor from acting as an agency supplying contract staff to third parties.  Similar provisions were in the Employer Guidance document before the announcement of changes in the immigration rules. There is no specific mention of seconding Tier 2 employees to a third party location. Yet, the Guidance also contains a vaguely worded restriction on “ongoing routine services” to a third party. In other words, there is no blanket prohibition, but each scenario has to be addressed on a case by case basis.  Your position as a Tier 2 sponsorship licence holder may be affected if you are in breach of the rules laid down in the guidance. And this may in turn affect your current staff with Tier 2 General visa. We strongly recommend seeking professional legal advice in order to discuss the arrangements in more detail and ensure you are compliant.

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I am studying at a UK university under the Tier 4 (General) visa and am due to graduate at the end of this academic year. I have found an employer who is willing to sponsor me at the “new entrant” salary rate after I graduate, but I am over 26 years of age. Am I correct in thinking that I can switch to a Tier 2 (General) visa and still work as a “new entrant”?

Unfortunately, there is a discrepancy between the Policy Guidance document for Tier 2 sponsors and the Immigration Rules on this point. The Tier 2 sponsor’s guidance document says at paragraph 26(2)(f) that you can be paid the new entrant rate regardless of age if you are switching from Tier 4 to Tier 2 (General), as long as your studies have lead to the award of the required qualification. However, paragraph 14 (d) of Appendix J of the Immigration Rules, which specifies applicability of the new entrant salary rate, only provides for Tier 4 General migrants switching into Tier 2 General category where their Sponsor had carried out a university milkround or where the migrant is under the age of 26 on the date of the application. In principle, the Guidance document should prevail. But there is a risk of litigation on this point.

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I have been employed under the Tier 2 (General) category for just over a year since my graduation from a University in the UK. I would now like to change employers and wanted to know if I could apply to extend my visa as a “new entrant” despite the fact that some time has passed since I graduated.

You may extend your Tier 2 (General) visa at the “new entrant” salary rate while changing employers if you are under 26 years of age on the date of your application for extension and as long as the extension would not take your total stay under Tier 2 to more than 3 years and 1 month. Therefore, the date of termination of your contract specified by your new employer on the Certificate of Sponsorship should be less than 3 years and 1 month from the date you were first granted your Tier 2 (General) visa.

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I am working in the IT sector on Tier 2 Intra-company transfer visa. Is it possible for me to switch to the Tier 2 (General) visa category?

There are two conditions under which it is possible to make this switch.  The first is if your Tier 2 (Intra-company transfer) visa was issued under the rules in place before 6 April 2010 and you are applying to change sponsor.  Secondly, you may switch if you are applying to change sponsor and were granted the now obsolete Tier 2 (Intra-company transfer: Established staff) visa before 6 April 2011.  If your current visa was issued after 6 April 2011 you will not qualify to switch to Tier 2 (General) visa.

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