• United Kingdom: As Interim Caps on Economic Migration Take Effect, UK Border Agency Provides Implementation Details
  • July 30, 2010
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • The UK government’s temporary cap on the number of foreign workers that it admits took effect on July 19, 2010 and will last until April 1, 2011. The UK Border Agency (UKBA) released new policy guidance detailing how the caps will apply to cases under Tier 1 (General) and Tier 2 (General) of the Points Based System.

    New Caps for Tier 1 (General)

    Under the interim cap system, the UKBA will grant 600 Tier 1 (General) cases per month. This represents an increase from the UKBA’s original cap figure of 5,400 cases annually. The interim cap will not affect the Tier 1 programs for investors, entrepreneurs, and post-study graduates.

    In addition to the cap, the UK government temporarily raised the number of points needed to qualify for Tier 1 (General) from 95 to 100. Of the 100 necessary points, an applicant must earn at least 10 points each for English language skills and personal funds, and a cumulative total of 80 points must be scored relating to the applicant’s personal attributes, such as his or her qualifications, previous earnings, age, and UK experience.

    The application process for Tier 1 (General) will not change. However, British diplomatic posts will apply the following three-stage analysis when an application is received by a British diplomatic post.

    • If an application fails to meet all of the requirements under the UK’s Immigration Rules, it will be rejected. 
    • If the application meets all the relevant requirements and the monthly cap has not been reached, it will be approved, 
    • If the application meets all the relevant requirements and the monthly cap has been met, the application will be carried over until the following month. Applications can still be submitted even if the monthly limit has been reached.
    British diplomatic posts will contact applicants only if their visa application has been successful or if it has been refused. If an application is held over for the next month because the cap was met, the applicant will not have to submit new supporting evidence covering the time between the date the application was submitted and the date the application is considered.

    New Caps for Tier 2 (General)

    To implement the cap for Tier 2 (General), the UKBA is reducing by five percent the number of Certificates of Sponsorship each employer with a sponsorship license can issue. Foreign employees who are already working for a sponsoring employer in the UK and who require an extension to work permit or Tier 2 (General) status will be counted against the employer’s reduced allocation. Tier 2 (Intra Company Transfer) applications are not affected by the temporary Tier 2 (General) cap.

    To calculate how the cap will apply to each individual employer, the UKBA will take the number of Certificates of Sponsorship an employer issued between July 19, 2009 and March 31, 2010 and reduce that number by five percent. The reduction applies even if it immediately brings an employer’s annual allocation for the coming year to zero.

    To help alleviate the strain of the new caps on employers, the UKBA has reserved an emergency pool of sponsorship certificates that employers can apply for if they are new sponsors or if there are exceptional circumstances. A special UKBA panel will review requests for additional allocations on the first of every month. The requests will be ranked as follows:

    1. A Work Permit or Tier 2 (General) extension for an existing sponsor; 
    2. A Work Permit or Tier 2 (General) extension for a new sponsor; 
    3. A new shortage occupation post for an existing sponsor; 
    4. A new shortage occupation post for a new sponsor; 
    5. A non-shortage occupation post for an existing sponsor; 
    6. A non-shortage occupation post for a new sponsor.

     The panel will notify employers of whether they have been granted additional allocations within five working days of the panel meeting. There is no appeal or review process for requests for additional allocations, although the request can be resubmitted for consideration in the following month.

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