The Home Office has confirmed that, for the first time, in June, the number of applications for Tier 2 (General) restricted Certificates of Sponsorship (CoS) exceeded the number of CoS available to issue to skilled overseas non-EEA workers.
The annual cap for skilled non-EEA applicants applying under Tier 2 (General) was set at 20,700 four years ago. This cap primarily applies to those non EEA migrants applying from abroad who will earn less than £155,300 per annum whilst working in the UK. It also applies in a few cases where the non EAA migrant is applying from within the UK. The annual limit runs from 6 April each year to 5 April the following year and is divided into 12 monthly allocations. 2,550 restricted Cos were available in April 2015 and 1,650 are available for each of the following 11 months. If the limit is not reached for a particular month, the remaining restricted CoS are rolled over to the following month so that the 20,700 limit remains available for the whole year.
When deciding whether to approve valid applications for CoS the Home Office decides on the number of points scored by the applicant, starting with the highest. When the Home Office reaches a point where there are more applications that score the same number of points than they have restricted CoS available, they will only approve all applications that score the same number of points if this means it exceeds the monthly allocation limit by 100 or fewer. Any unused restricted CoS are then rolled over to the following month.
In June 2015 the Home Office received more applications than it had restricted CoS available to allocate so a significant number of applications were therefore refused. This is the first time since its introduction that applications have exceeded the number of CoS available for that month. The immigration minister, James Brokenshire, has confirmed that there are no plans to increase the cap. This comes as no real surprise following David Cameron’s recent announcement of a new drive to reduce the flow of skilled workers coming into the UK recruited from outside Europe.
If the cap on Tier 2 (General) applications continues to be exceeded in subsequent months, employers who wish to recruit non-EEA nationals should be aware that their application for a restricted CoS to employ that person in the UK may not be successful. This is because once the monthly cap has been reached, the Home Office panel reject those applications with the least ‘points’. Since the points increase with the level of salary, those with insufficient points are likely to be applications to enable the migrants to take up lower paid roles. This will therefore have more impact on professions where remuneration is generally lower, such as the creative and technological industries, architecture and nurses and healthcare professionals and where applicants are employed outside of London or by smaller companies. Indeed we understand that in order to be allocated a restricted CoS under the June panel, the applicant had to score 50 points which effectively meant that the role had to earn an annual salary of over £46,000. Higher points are also awarded for roles on the shortage occupation list and roles with a PhD-level occupation code. If an application is rejected, a fresh application will need to be submitted the following month.
The concern is that failing to increase the cap to take into account the recent increase in job vacancies will prevent businesses from hiring the most skilled candidates for a role and may ultimately harm the British economic recovery. Employers should also be aware of the risk that they may not be able to obtain a CoS for lower paid non EEA nationals and may therefore not be able to employ them. Any letter offering a non EEA migrant a job should make it very clear employment is conditional on the person obtaining the right to work in the UK and warn the individual that their application may not be successful.