As you may be aware, the UK Border Agency has introduced an Interim Limit on applications submitted under Tier 1 (General) and Tier 2 (General) of the Points Based System. To better explain these changes, see below for more details.
Please note: This information is taken from materials initially published by the UK Home Office.
What is the Interim Limit?
The aim of the Interim Limit is to achieve an overall reduction of 5% in the number of applicants in these categories compared to the equivalent period last year. This interim limit will run from 19 July, 2010 to 31 March, 2011. The interim limit will be implemented by limiting the number of Certificates of Sponsorship (CoS) each sponsor can assign to migrant workers.
Within Tier 2 this limit:
When will sponsors be made aware of how many Certificates of Sponsorship (CoS) they can assign?
All licensed Tier 2 (General) sponsors will have received a letter from the UK Border Agency (UKBA) notifying them of the introduction of an interim limit on Tier 2 (General). From 19 July, 2010 onwards, Tier 2 (General) sponsors will receive a further detailed letter setting out their individual CoS allocation for the period to 31 March, 2011.
The interim limit has been calculated by assessing the CoS usage of each sponsor for the equivalent period from 19 July, 2009 - 31 March, 2010. The UKBA have then applied a reduction to each sponsor who used 2 or more CoS during this period, leaving a pool of unallocated CoS for distribution to new sponsors and existing sponsors who have special requirements.
You can request CoS from this reserved allocation if you are:
- a new sponsor licensed during the period of the interim limit until 31 March 2011; or
- an existing sponsor who requires additional CoS in exceptional circumstances during the period of the interim limit.
How does this affect existing sponsors?
The changes will affect existing sponsors in different ways, but please note that some sponsors will be given a zero allocation for this period. This means that they continue to remain licensed by the UK Border Agency and are able to continue to sponsor any existing migrants they employ who have valid leave. However, they are not able to assign a CoS to any new migrants or to existing employees who require an extension to their leave. It is for sponsors to decide how to split their allocation between ‘new’ employees and extension applicants where appropriate.
Where an existing sponsor has a zero CoS allocation or requires additional CoS during the period of the interim limit, they can apply for exceptional consideration for additional CoS. However, please note that the number of CoS available for exceptional cases will be limited and it is therefore important that sponsors manage their allocation appropriately as there is no guarantee that their request for extra CoS will be granted. The UKBA will require sponsors with an interim allocation of 1 CoS or more who apply for exceptional consideration to account for how they have used, or intend to use, their existing CoS.
How will this affect new sponsors?
There will be a limited allocation of CoS available to new sponsors and some new sponsors may not be able to issue any CoS during the period of the interim limit. New sponsors will have to apply on a separate form to request CoS and all requests received by the UK Border Agency each month will be assessed against the criteria listed later in this guidance.
Where the UKBA approves a new sponsor licence, they will initially set up that sponsor on the Sponsor Management System with a zero CoS allocation. New sponsors must complete the request form for allocation of CoS at the time of application for a sponsor licence. This means that the sponsor is on the UKBA sponsor register and has a valid Tier 2 (General) licence. However, they are not able to assign a CoS to a new migrant or to an existing employee who has a work permit and requires an extension to their leave.
The request form must be signed by the Authorising Officer and requests from sponsors who have not completed this form or that are submitted via alternative routes will not be considered. Incomplete and unsigned forms will also be rejected by the UKBA.
What is the process of requesting additional Certificates of Sponsorship (CoS)?
The UKBA have advised that a CoS should only be requested for an extension where the migrant’s leave is due to expire within the next 60 days. Where the CoS is required for an individual whose leave is due to expire in more than 60 days then the request will be rejected by the UKBA and the sponsor informed.
IMPORTANT:
The UKBA will assess these requests against the following criteria - for a case to be considered for exceptional consideration, the following conditions must be satisfied:
- the sponsor must be A-rated on all their sponsor licenses on all tiers and categories at the point they submit the request; and
- the number of CoS requested must take into account any available CoS remaining in the sponsor’s existing allocation.
Requests for exceptional consideration will be considered and ranked in the following order of priority (starting with the highest ranking):
- A Work Permit or Tier 2 (General) extension for an existing sponsor;
- A Work Permit or Tier 2 (General) extension for a new sponsor;
- A new shortage occupation post for an existing sponsor;
- A new shortage occupation post for a new sponsor;
- A non-shortage occupation post for an existing sponsor;
- A non-shortage occupation post for a new sponsor.
Please note that a "limited number" of CoS have been made available for exceptional cases and the UKBA have stated directly that "it is likely that most requests will be unsuccessful". Sponsors should carefully consider their request against the above criteria before submitting.
The requests for exceptional consideration will be considered by a panel of UKBA managers to ensure consistency of decision-making. The overall allocation of CoS available for exceptional cases will be divided across the months of the interim limit. The panel will meet on a monthly basis on the first working day of the month. All requests for exceptional consideration received before the 25th of the previous month will be considered at the next panel. Any requests received from the 25th onwards will not be considered at the next panel but will be rolled over to the following month’s panel. Sponsors will be notified of the result of their request for exceptional consideration within five working days of the panel meeting. Where the request for a CoS has been successful then the Sponsor Management Account will be updated. Where an urgent decision is required before a panel then a decision will be made by the Deputy Director for Sponsorship or nominated deputy.
Please note that the UKBA have confirmed that the panel’s decision is final: there is no appeal or reconsideration process. However, sponsors can choose to resubmit their request at any time. Any CoS allocated to sponsors following a request for exceptional consideration must be used for the role for which it was requested. Failure to do so may result in future requests for exceptional consideration being refused and further compliance action being undertaken as appropriate.
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How will a sponsor’s CoS usage be monitored and tracked?
Sponsors should note that the procedure adopted where a CoS is assigned remains the same under the interim limit as it was prior to 19 July, 2010. Any CoS that a sponsor assigns to a prospective worker will be counted as 'used' and will be deducted from the sponsor’s allocation for the period of the interim limit. This includes any CoS issued in error or any CoS which is assigned but not used by the migrant in a leave to enter or leave to remain application.
Each sponsor's CoS usage will be monitored closely during the period of the interim limit and reviewed in October 2010 and January 2011.
A sponsor's interim allocation may be recalibrated at this review point depending on the overall trajectory of the limit. Additionally, a sponsor who no longer wishes to sponsor migrants may choose to surrender their sponsor licence at any time.
- Marek Starke is a member of the UK Visa Bureau.
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