Points-based system news

As of 6 April 2011 no sponsored migrant under Tier 2 (General) can be paid in cash. Moreover, restricted CoS can be applied for 3 months in advance (the earliest possible date). In paragraph 206 of the Sponsor Guidance, the UKBA explains that:

“Your (sic) can have an annual allocation under Tier 2 (General) but only to cover the number of unrestricted CoS you will need. You cannot have an annual allocation of restricted CoS. Any unrestricted CoS we allocate to you can only be used for unrestricted jobs. If you assign an unrestricted CoS to a migrant for a restricted job, we will revoke your sponsor licence.”

One can only hope that if an honest mistake is made then there will be an exception and clemency will be shown by the UKBA.

Where the question of the validity of a Tier 2 (General) sponsorship licensing application is concerned, 32 is the magic number. In comparison to last year, at present, the sponsor side application has become points based: consequently, for the first time in its existence, Tier 2 (General) has now become ‘entirely’ points-based on either side. (On the sponsor’s side and as well as the applicant’s.) And this is precisely the reason that the sponsor’s licence application must have a magic number of 32.

Yet the number 32, despite its elegance and virtuosity in the Judeo-Christian-Islamic (the three “great” monotheisms!) numerologies, is insufficient for the actual grant of a sponsorship licence. It is the minimum number of points which an employer must exhibit in an application to have it accepted as valid whereas in the past, an application was considered valid by the UKBA if one provided a minimum of four types of documents (HMRC registration, business bank account, employers liability, accounts, a professional certificate if one was required etc). These – if submitted with the appropriate application fee (£300 or £1,000 depending on the size of the licence which the employer required) -would make an application “valid”.

The following table (extracted from paragraph 16 of the sponsor side policy guidance) sheds light on the operation of the number 32 in the new Tier 2 (General) policy:

Type of Job

Points

Salary

Points

Job is on the list of Shortage Occupations

75

£20,000 – £20,999.99

2

Job is at PhD level and is in one of the SOC codes listed below this table

50

£21,000 – £21,999.99

3

Resident Labour Market Test Conducted (or the job is exempt from the Resident Labour Market Test)

30

£22,000 – £22,999.99

4

£23,000 – £23,999.99

5

£24,000 – £24,999.99

6

£25,000 – £25,999.99

7

£26,000 – £26,999.99

8

£27,000 – £27,999.99

9

£28,000 – £31,999.99

10

£32,000 – £45,999.99

15

£46,000 – £74,999.99

20

Any application for a sponsorship licence must score 32 points from the above. These must be scored from each column of the points table set out above and there can be no double counting.

The UKBA also clarifies that:

“222. Each application we receive for a restricted CoS will be scored in line with the table in paragraph 216. All applications received up to and including the 5th of each month will be considered on the 11th of the same month – the ‘allocation date.’ For example if you apply between 6 May and 5 June, your application will be decided on the 11 June.”

To riposte the claimed efficiencies of this machinery, last year’s memories of a CoS which was refused without explanation – (to an A-rated licence holder) and which met the required earnings threshold – are still quite fresh.

In that scenario, the idea of an ‘allocation date’ was virtually non-existent and the UKBA dithered for several months before finally refusing the application. When they did finally refuse the CoS, they did not provide any reasons. The application was made by a PSW switcher. (Luckily, the said person won under Article 8 of the ECHR in the Tribunal.) Discretionary leave for three years is far better than a Tier 2 (General) grant for the same duration.

Equally, memories of an officer of Chinese origin who awarded an A-rated licence to the said migrant’s sponsor are equally fresh. Curiously, just the week before, the officer in question, who was a diligent and right-minded servant of the British State, rightly refused a licence to a large and pompous butchery with several employees. Instead, the following week, she granted a licence to a small professional practice in the East Midlands.

It should be noted that the interviewing officer does not make the final decision in granting the sponsorship licence. Yet the decision is made on strength of their recommendations.

For the officer concerned, and this is a great testament to her fairness, big and business like arrogance without substance meant nothing. The officer took the view that a Goliath like butcher was no match for some little David whose office had no heating (but nevertheless kept all his papers properly and knew his staff well and kept nice files on them to show to the officer). To the officer’s amusement, David’s migrant had also submitted an in time application under Tier 2 (General) without a valid CoS in order to extend his statutory leave.

If the UKBA could have more officers such as the one in our example and if all of them could know that our David’s migrant had section 3C leave, then the idea that there can be an “allocation date” is quite attractive: without such “foreign” officials though, experience sets out some pretty bleak decision making. Great Chinese officer: thoroughly meticulous, professional and smiled in a big way when asking questions from her interview papers which were endorsed as “protected from disclosure”. “We used to be from Hong Kong and I decided to become British … and then the Home Office took me,” she said with a big smile while departing from the premises.

In that way, there is still hope that the agency will cultivate a crop of officers who are able to understand the context of their duties. In fact, it is comforting to know that it is not really possible to obtain a sponsorship licence by maintaining flashy premises. However, there is the Premium Service for those who can afford it.

Finally, PSW visa holders are a dying breed. They are not able to switch too much now that Tier 1 (General) is closed and in-country PSW visa holders are excluded from switching to Tier 1 (General) in-country. The only options left for such people are either the Tier 1 (Entrepreneur) or Tier 4 (General) routes: by using the latter they can re-switch into Tier 2 (General) if an employer sponsors them using an unrestricted CoS (by offering a minimum salary of £20,000).

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Article 8, ECHR, Immigration Law, Immigration Rules, Post Study Work, Tier 1, Tier 2, Tier 4, UKBA and tagged , , , , . Bookmark the permalink.

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