The UK Border Agency (UKBA) has provided detailed information regarding their policy as to when a new Tier 2 application is required because of changes of employment. The UK Border Agency treats change of employment applications against the same criteria as initial applications. Therefore, for a Tier 2 (General) application, a Resident Labour Market Test (advertising in the usual manner) will be required unless the new job falls under the shortage occupation list.

A change of employment application, as is the case now, continues to be required if a Tier 2 migrant (or a work permit holder) wishes to work for a different Sponsor. The only exception to this is where they are moving to a new Sponsor to continue in the same job, due to a takeover, merger or de-merger.

If however a Tier 2 migrant (or a work permit holder) is changing job but remaining with the same Sponsor, a new application will not be required provided they remain within the same Standard Occupational Classification (SOC) code. If a migrant is remaining with the same Sponsor but changing jobs to a different SOC code, a change of employment application will be required. This is subject to exceptions as below:-

  • If the migrant's salary reduces below the level stated on their Certificate of Sponsorship (other than company-wide reductions defined as acceptable in the Sponsor Guidance, or reductions due to maternity or adoption leave), a change of employment application will be required. A change of employment application will not be required for increases in salary.
  • If the migrant changes jobs within the SOC code from a job which is on the shortage occupation list to a job which is not on the shortage occupation list, a change of employment application will be required. A change of employment application will not be required if the migrant stays in the same job, but that job is removed from the shortage occupation list.

In all cases it is worth noting that a migrant's application for leave must be approved by the UKBA before they can start work in their new job. This applies regardless of whether the new job is with the same Sponsor or with a new Sponsor. In the meantime, the migrant can continue working in their original job, for their original Sponsor (provided their previous leave has not expired) until the start date of the new job, which should be the start date given on the new Certificate of Sponsorship.

SALARY AND ALLOWANCE PACKAGES

It is important to note that the UK Border Agency will look at the gross salary figure stated on a Certificate of Sponsorship to check if the salary is at the appropriate rate for the job as per the relevant code of practice.

Please note that the gross salary figure quoted on the Certificate of Sponsorship must be the actual gross salary package that will be paid to the migrant, including relevant allowances and tax that is actually incurred by the Sponsor either in the UK or overseas. The figure quoted must not be inflated in anticipation of any tax relief, such as relief on expenditure related to the employment, or tax which would be incurred by the employment of a resident worker but which is not incurred in respect of the migrant.

POINTS TO CONSIDER

It is pertinent to note that Sponsors stand a high risk of losing their licence if they do not pay a migrant at least the salary and/or allowances specified on the Certificate of Sponsorship. The gross salary package that will actually be paid to a migrant (regardless of any tax relief) must be at least equal to that which would be paid to a resident worker. Many times especially in this economic climate when redundancies are widespread, employers inadvertently do not update the SMS or lodge change of employer applications. It is suggested that employers seek legal guidance on these issues as and when they arise rather than leaving it for a later date. We are happy to assist HR professionals and companies who are facing/may face such issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.