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The New Immigration Points Based System

 

The New Immigration Points Based System
for Employees Outside of the
European Economic Area and Switzerland

In November 2008, the UK Government introduced a new points based immigration system which covers people outside of the European Economic Area and Switzerland who wish to work or study in the UK.  This system replaces the previous application process where employers would apply for a ‘work permit' on behalf of individuals to whom they had offered work.

If an employer wishes to employ an individual from outside the European Economic Area and Switzerland or an individual wishes to come to the UK to work, that person must apply to the UK Border Agency under the new points based system before they are given permission to enter or remain in the UK to work.

The tiers

The system consists of 5 tiers which all have different requirements.  The tiers are:

  • Tier 1: highly skilled workers, post-study workers investors and entrepreneurs, i.e. scientists;
  • Tier 2: skilled workers with a job offer, namely teachers and nurses;
  • Tier 3: low skilled workers filling specific temporary labour shortages;
  • Tier 4: students; and
  • Tier 5: youth mobility and temporary workers.

The tiers that will be of relevance to most employers will be tier 1, 2 and tier 5 (for temporary workers)[i].

The number of points which the individual needs and the number of points that will be awarded are dependent upon various factors such as age, skills and experience.  When applying, the UK Border Agency may also take into account the level of need within the sector in which  the individual will be working.

Those applying under Tier 1 will not have to be sponsored by a UK employer[ii], however if an individual wants to apply under tier 2 or 5, they will need to be sponsored by a UK employer and have a certificate of sponsorship.  This certificate of sponsorship can only be issued to the individual by their sponsor, i.e. their proposed employer.  

How does an employer become a sponsor?

Before a UK employer can sponsor an individual who wants to work in the UK, that UK employer must apply to the UK Border Agency for a sponsor licence.  Once the employer receives this sponsor licence, the employer will then be able to issue a certificate of sponsorship to the individual applying under tier 2 or 5 of the points based system.  Having a sponsor and a certificate of sponsorship will assist that individual in gaining entry clearance to work in the UK.

All sponsors are given an A or B rating when they are licensed.  A B-rating is a transitional rating.  This means the B-rated sponsor will have to improve their performance sufficiently within a relatively short time period, to be upgraded to an A-rating, or risk having their licence withdrawn.

Duties of a sponsor

If a UK employer is given the licence to be a sponsor, the employer must carry our several duties under the sponsorship regime.  These include:

  • Keeping records or documents verifying the individual's immigration status and identification (this includes a copy of the individual's passport showing evidence of entitlement to work in the UK and the individual's contact details);
  • Report non-attendance, non-compliance or disappearances to the UK Border Agency;
  • Report any changes in the individual's or the employer's circumstances or if they are no longer sponsoring the individual; and
  • Only to assign certificates of sponsorship to individuals who to the best of their knowledge and belief will meet the requirements of the tier under which the certificate is assigned.

In addition to the general duties listed above, there are also specific duties for each tier.  For example under tier 2, an employer must:

  • Only assign a certificate of sponsorship to individuals if satisfied that the individual is able to do a specific skilled job which is of at least S/NVQ skill level 3;
  • The job concerned appears on the list of shortage occupations published by the UK Border Agency; and
  • The job is a genuine vacancy.

Are there any other requirements that an individual must meet?

The presence of a sponsor and the receipt of a certificate of sponsorship will assist the individual in qualifying for entry clearance to work in the UK.  However, under Tier 2 or Tier 5, the individual applying for entry clearance must also meet the maintenance requirements.

Under Tier 2 the individual must show:

  • that he/she has personal funds of at least £800 held for at least 3 months prior to the date of application; and
  • the individual's sponsor has issued a letter to the individual to certify that they will maintain and accommodate the individual until the end of his/her first month of employment in the UK. The letter must be sent to the individual by post or fax on official letter-headed paper and include the individual's name, sponsor's name and logo and confirmation that the sponsor will maintain and accommodate the sponsored individual until the end of the individual's first month of employment in the UK.

Under Tier 5 the individual must demonstrate:

  • that he/she has at least £800 of personal savings which have been held for at least 3 months prior to the date of application; and
  • the individual's sponsor has indicated on the certificate of sponsorship that the sponsor has certified the individual's maintenance.

Under both tiers, the sponsor should make the individual aware that the individual cannot claim state benefits whilst working in the UK.

NB: Sponsors will only be allowed to certify an individual's maintenance if they are A-Rated when the certificate of sponsorship is assigned. Sponsors cannot certify maintenance if they are B-Rated when the certificate of sponsorship is assigned.

If you are an employer and would like advice on how to become a sponsor  or you are an individual who would like assistance in applying to work in the UK under the new points based system, please contact our employment law department on +44 (0) 207 234 0200.

Mulika Sannie
©Waterfront Solicitors
March 2009

[i] As at the time of producing this document, tier 3 is yet to be implemented
[ii] If you are an employee/employer and you believe that Tier 1 is the most appropriate tier to apply under to the UK Border Agency, please contact us on +44 (0) 207 234 0200 to ensure you meet the requirements.

Employment