Immigration – Frequently Asked Questions

Can I switch from Tier 2 ICT to Tier 2 General dependent within the UK?

Yes

What is RLMT and why must it be carried out?

For a business in the United Kingdom to recruit a worker from outside the EEA, it will normally be required to provide evidence that no suitable “settled worker” was available. Roughly translated, this means that the business must first make every reasonable effort to hire someone from within the UK – accomplished by performing a “Resident Labour Market Test” (RLMT).

If an RMLT is necessary, the following requirements apply:

  1. The job must be advertised and marketed directly to UK applicants for a minimum of 28 days
  2. The method by which the job was marketed must be approved by the government
  3. The job listing must contain detailed information on the job description, salary, qualifications, and skills required

An employer will subsequently only be able to hire someone from outside the EEA if they can provide evidence that no suitable worker could be found within the United Kingdom. The extent to which the requirements of the RLMT are satisfied will determine whether they can qualify for (or retain) a sponsor’s license.

Change of job duties if on Tier 2 visa – what is the process?

If your role or duties change significantly while working in the UK under a Tier 2 visa, it may or may not be necessary to make a new work visa application. Even if you remain with your current employer, there are instances where a new visa application may be necessary.

Examples of which include:

  • Switching to a new role that incorporates duties with a different Standard Occupational Classification code to that which is specified on your Certificate of Sponsorship
  • A reduction in salary as part of your new role that takes your annual earnings below the current threshold of £159,600
  • Moving to a position that is not on the shortage occupation list, when your previous role was on the shortage occupation list

Switching to a new employer can be an entirely more complex process and will depend on your new employer both having a Sponsor Licence and fulfilling the requirements of the Resident Labour Market Test.

If unsure, consult with a trained legal expert before agreeing to any major changes in your position or responsibilities.

Not renewing sponsor licence when still having Tier 2 employees – what are the implications?

Many employers unknowingly allow their Tier 2 sponsor licences to expire, without taking into account the potential implications. Unless immediate action is taken to restore the validity of your sponsor licence, you and your employees may face grave consequences.

If you do not have a valid sponsor licence, you are strictly forbidden from employing Tier 2 visa employees (and any other employees on PBS visas). Not only does this mean that all such employees will subsequently be working for your business illegally, but the fact that you do not have a valid sponsor licence could also invalidate their visas and their leave to remain in the UK.

At which point, your employees will have a period of 60 days to either obtain a new visa with a new employer or exit the country. Your business could be liable for extremely heavy penalties if you are found to have Tier 2 visa employees (and any other employees on PBS visas) under your employment, without a valid sponsor licence.

How long does the sponsor licence application take?

Many employers unknowingly allow their Tier 2 sponsor licences to expire, without taking into account the potential implications. Unless immediate action is taken to restore the validity of your sponsor licence, you and your employees may face grave consequences.

If you do not have a valid sponsor licence, you are strictly forbidden from employing Tier 2 visa employees (and any other employees on PBS visas). Not only does this mean that all such employees will subsequently be working for your business illegally, but the fact that you do not have a valid sponsor licence could also invalidate their visas and their leave to remain in the UK.

At which point, your employees will have a period of 60 days to either obtain a new visa with a new employer or exit the country. Your business could be liable for extremely heavy penalties if you are found to have Tier 2 visa employees (and any other employees on PBS visas) under your employment, without a valid sponsor licence.

How long does the Tier 2 application take?

Anyone looking to apply for a Tier 2 visa is invited to do so no earlier than three months prior to their planned start date in the United Kingdom. While most applicants will receive a decision within three weeks, application processing times can be extended due to high demand, backlogs and other issues.

It is therefore advisable to submit your application at the earliest possible stage, ideally with the help and support of an experienced immigration lawyer to avoid unnecessary delays and to have a decision arrive within 10 working days.

What is the process of transferring to another company under Tier 2 visa?

If you are working in the UK under a Tier 2 visa and you wish to transfer to another company, you will need to start the Tier 2 application again from scratch.  As when applying for your visa in the first place, your application will be assessed on the basis of multiple factors.

Examples of which include the new employer’s status as a valid sponsor license holder, the position having been subject to a Resident Labour Market Test and the specifics of the role in question (salary etc.).

If your prospective employer successfully completes an RMLT and provides you with a new Certificate of Sponsorship, you will be able to take on a new role. If the prospective employer does not have a valid sponsor licence, they will need to apply for one – a process which usually takes no longer than eight weeks.

Intra-company transfer – what is the process?

Transferring a migrant to work in the UK means ensuring that the worker in question meets all applicable requirements under Tier 2 Intra-Company Transfer Visa policy. One key difference with an intra-company transfer is that the usual resident labour market test requirements do not apply. Hence, the position need not first be advertised to settled individuals in the United Kingdom for a specific period.

However, it is important to note that entry to the United Kingdom by way of a Tier 2 Intra-Company Transfer Visa does not after five years lead to the visa-holder’s indefinite leave to remain. The current minimum salary requirement to qualify under the Tier 2 Intra-Company Transfer Visa is £41,500 – significantly higher than the Tier 2 General Visa requirement of £30,000 per year, or as low as £20,800 in some cases.

Applicants must have also been employed by the overseas company for a minimum of one year, unless the UK salary they will be paid exceeds £73,900. 

The applicant must also show that they have minimum on-hand funds of £945 at the time of the application and that this lower threshold has not been breached within the past 90 days.

The application process is otherwise like the standard Tier 2 Visa application process and is best overseen by a qualified legal representative as there are other factors that can be considered to help you meet the rules.

After intra company transfer (ICT), can you apply for ILR?

If you have entered the United Kingdom by way of a Tier 2 Intra-Company Transfer Visa, you will not automatically be able to apply for indefinite leave to remain after five years.  However, it may be possible to apply successfully for a Tier 2 General Visa, which will set you on your way to ILR eligibility. There are many rules restricting you from switching into a Tier 2 General Visa, however if you contact a member of the team at Aristone Solicitors to discuss your case and the available options in more detail.

My tourist visa expires after 31 July 2020, can I still apply for a Tier 2 visa in the UK under the new coronavirus guidelines? 

If the expiry date on your visa falls between January 24 and July 31 this year, you are able to apply for a long-term visa application from inside the United Kingdom, which would normally need to be submitted from overseas.  However, this applies exclusively to holders of visas with expiry dates before or on July 31, and the application must be submitted by July 31.

If your visa is set to expire after 31 July 2020, you will not be able to apply for a Tier 2 Visa under the current coronavirus guidelines.

What is the success rate of applying for a Tier 1 entrepreneur visa?

Figures for 2020 aren’t particularly reliable, given how all types of visa applications (and subsequent decisions) have been impacted by the Covid-19 pandemic. However, official figures for 2019 suggest that the refusal rate of the Tier 1 Entrepreneur Visa is 48%. This means that just under half of all applications are rejected, emphasising how difficult it can be to successfully enter the United Kingdom as an entrepreneur.

Therefore, it is important to consult with an experienced business immigration lawyer at the earliest possible stage. The stronger the case you present and the more evidence you are able to provide, the more likely you are to qualify.  Contact a member of the team at Aristone Solicitors anytime for an obligation-free initial consultation.

Can I work although my Tier 2 application has not been decided on during this COVID 19?

Under normal circumstances, there is no allowance for a Tier 2 visa applicant who is already in the UK to start working before their application has been formally decided. However, as the current circumstances in the UK and worldwide are far from normal, this restriction has been temporarily suspended for certain applicants.

As things stand, employers are permitted to employ Tier 2 and Tier 5 workers who are in the UK though are yet to receive decisions on their visa applications, if they meet the following criteria:

  • They have obtained a Certificate of Sponsorship from their employer
  • They applied for their visa before their existing leave to remain expired
  • They will continue with the same job as that stated on their Certificate of Sponsorship

It remains the responsibility of the employer to carry out the necessary checks and verifications with regard to the Tier 2 or Tier 5 worker’s right to work in the UK. The reason being that if their visa application is ultimately rejected, the employee’s contract must be terminated, and they may lose their right to remain in the UK.

In the event that the worker is currently outside the UK and wishes to begin working for a UK employer remotely, they may be entitled to do so subject to the relevant immigration, tax and employment policies applicable to that specific country.

What if an employee has been issued with a 30-day Tier 2 (General) visa and can’t travel to the UK to start work on time?

It isn’t usually possible to postpone the work start date for a Tier 2 (General) employee more than 28 days beyond the start date indicated on their Certificate of Sponsorship. Hence, an employee with such a visa who is unable to travel to the UK to start work on time would need to reapply.

As it stands, the Home Office has issued no direct guidance with regard to this specific matter. It is therefore advisable to seek expert legal counsel at the earliest possible stage, if you have any questions or concerns regarding your eligibility to work or reside in the United Kingdom.

What happens if a Tier 2 (General) sponsored worker has returned to their home country to work remotely and will now remain there for several months?

This is permitted by the Home Office, but the worker in question must remain under the employment of their existing employer and be paid as normal. 

In addition, it is important to note that if the visa of the sponsored worker expires while they are abroad, they will not be able to apply for another Tier 2 visa for the next 12 months. Also, the foreign worker’s future eligibility for indefinite leave to remain could be impacted by the time they spend abroad.

Again, no information has yet been provided as to whether these rules will be altered during the Covid-19 recovery period.

For more information on any of the above or to discuss UK immigration policy in more detail, book your obligation-free consultation with a member of the team at Aristone Solicitors today.

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