Employers wishing to sponsor non-EEA nationals under Tier 2 (General) should be aware that there is no guarantee that an application for a restricted Certificate of Sponsorship will be successful as there is a real risk that the cap will be reached again, particularly in February and March 2018.
(This article was first published on 3 January 2018 and was updated on 18 January 2018.)
Tier 2 (General) quota
Under the Tier 2 (General) sponsorship route, there are a maximum of 20,700 Certificates of Sponsorship available for employers to sponsor non-EU skilled workers. The cap of 20,700 only applies to ‘restricted’ Certificates of Sponsorship (‘CoS’) which are generally only for Tier 2 (General) workers applying from overseas who will earn less than the higher earner threshold (currently set at £159,600 per year).
The annual cap of 20,700 restricted CoS is split into monthly allocations. These are not equal monthly allocations. The allocation year runs from April to April. At the start of the allocation year in April there are more available – starting at 2,200 per month. By September this falls to 1,500 per month and in February and March there are only 1,000 per month available. Any unused Certificates for any month are carried forward to the following month.
Process for applying for a restricted CoS
Employers who wish to assign a restricted CoS to a skilled non-EEA individual must first apply to the Home Office for a restricted CoS as part of the monthly allocation cycle. The application must be submitted by the 5th of the month and the panel meets on the 11th of the month.
The Home Office uses a points-based test to assess applications with occupations on the shortage occupation list and PhD occupations given priority. The rest of the applications are then assessed on the basis of the salary that will be paid for the role.
If the application for a restricted CoS is approved by the Home Office, the employer can then proceed to assign the CoS to the individual they wish to sponsor and that individual is then able to submit a Tier 2 entry clearance application from their home country to come and work in the UK.
Immigration cap reached
Until very recently, the cap had only been reached once in the summer of 2015. This meant that, apart from a couple of months in 2015, employers who applied for a restricted CoS would generally obtain one (assuming all the eligibility criteria for Tier 2 (General) were met). It was usually possible to obtain a restricted CoS even for roles that offered the minimum annual salary of £20,800 under Tier 2 (General).
However, in the latest monthly allocations of December 2017 and January 2018 the cap was yet again reached. There were 1575 restricted CoS available in December 2017 and 1409 were available in January 2018. However, we understand that many applications for restricted CoS were refused in both December and January. In particular, in circumstances where the role was neither a shortage occupation role nor a PhD role, only roles with salaries of £55,000 or above were granted the restricted CoS in the December 2017 monthly allocation. In the January 2018 allocation only such roles with salaries of £50,000 or above were granted the restricted CoS.
Looking ahead
In February and March 2018 the monthly allocation will drop further to around 1,000 per month. This means it is likely to be far more difficult for employers to obtain restricted CoS for roles with lower or middling salaries. There is certainly no guarantee of obtaining a restricted CoS going forward in the first part of 2018 as it is likely that many of those refused in December 2017 and January 2018 will re-apply.
Although there is not much that employers can do in practice to ensure they obtain a restricted CoS, one thing they could do is to consider increasing the salary for the role to maximise the chances of a successful application. The salary bands for the awarding of points should be checked as in some cases a slight salary increase may take the application into the next points band. However, employers will need to check that the salary offered still falls within the range stated in the adverts posted or the employer will need to run the Resident Labour Market Test again and advertise at the higher salary level.
Employers who were not granted a restricted CoS in December 2017 or January 2018 may re-apply in February 2018 but should first check that the adverts used as part of the Resident Labour Market Test were posted within the last 6 months. It is mandatory grounds for revocation of a sponsor licence if a CoS is issued more than 6 months after the adverts were first posted.
In terms of future planning, where possible, it may be worth applying for restricted CoS in the April to September allocation cycles when the monthly limit is higher than for the rest of the year and trying to avoid the January and February allocation cycle in particular when the monthly limit is at the lowest.
Employers should also make the prospective employee and managers aware that a restricted CoS may not be awarded immediately, leading to a delay in the person being able to start work in the UK. This will inevitably also have a knock on effect for the prospective Tier 2 migrants who ideally should wait for the restricted CoS to be granted before resigning from current jobs or making other arrangements
Kerry Garcia
Jackie Penlington