Universities who recruit new Tier 2 staff from within the UK can instinctively primarily focus on Resident Labour Market Test (“RLMT”) issues. Some lecturers begin working at a university on a part time basis while they are studying at it, and once their course has completed, they switch immigration category from a Tier 4 visa to a Tier 2 visa from within the UK. For this type of switch, university HR staff are generally familiar with the exemption for completing the RLMT (which means they don’t need to advertise the positon in accordance with UKVI Guidelines, providing they meet the remaining criteria for this exemption). If the new hire lecturer is already in the UK as a Tier 2 migrant (say, lecturing for another university), then the RLMT will apply, unless they qualify for a different exemption (eg. they are a ‘high earner’ which means they will be paid more than £153,300 or they intend to do a job on the Shortage Occupation List).
We have recently learned about a lecturer who was sponsored by a university in the UK as a Tier 2 migrant and was caught out by the ‘cooling off period’ because the university he was moving to, omitted to advise him about it.
When this migrant secured a new lecturing job, his prospective university employer advised him of the need to re-advertise the post he had already been offered a position for in order to meet UKVI requirements. In light of this requirement, which would effectively delay his visa application process, he decided to visit family in his home country and arranged with his prospective sponsor university to enrol his biometrics and submit his new Tier 2 application from his home country (the US) once the RLMT had completed an no suitable resident workers had been identified for the role.
All of those involved were surprised and alarmed when the Tier 2 visa application for his new job was refused (which is when we were contacted), because he was subject to the ‘cooling off period’. This meant that he could not take up the post with his new university employer for a further 12 months, he had a refusal on his immigration record and a ‘break in his residence’ which affected his eligibility for Indefinite Leave to Remain (“ILR”).
The UKVI introduced a 12 month cooling off period for Tier 2 (General) applications. The effect of this was that, while those who enter the UK under Tier 2 (General) to work for one PBS Sponsor will be able to apply in-country under Tier 2 (General) to work for another PBS Sponsor, if they leave the UK, they will not be able to apply to re-enter the UK under a fresh Tier 2 (general) permission until 12 months after their previous Tier 2 (general) permission has expired or their date of departure – whichever is the earlier date.
This rule means that sponsor employers will have to carefully consider the ongoing and long term plans for all sponsored migrants that they are responsible for, because if they leave the UK during their Tier 2 sponsored employment, it may not be possible for them to make a subsequent application under Tier 2 (General) until at least 12 months after they departed the UK, unless an exemption applies, such as they are a high earner or they are coming to the UK to do a job on the Shortage Occupation List. Any sabbaticals they plan to take, should be carefully coordinated.
UKVI has emphasised that the domestic labour market should not be impacted by the Tier 2 route and that Tier 2 should be viewed as a temporary category and have now limited the maximum stay of Tier 2 (General) migrants to a period not exceeding six years. The Tier 2 (General) route will still lead to settlement which should encourage individuals to apply for settlement following five continuous years of residence in the UK.
The lecturer in question is understandably disillusioned with the UK immigration rules. We remain in hope that the new incoming government actively work towards changing the immigration rules to ensure that the UK continues to be a place that attracts students and workforce, rather than deters them because of the immigration procedure.
The restrictions in the Immigration Rules seems to force universities to become more ‘corporate’ in their conduct and treat their sponsored migrants as if they were more disposable to them – an approach all our university clients oppose. We have been working closely with our clients within the education sector to promote employee engagement to assist with and secure cooperation at the outset of their employment. However, ensuring the university staff within the HR department are up to date with their advice is crucial.
We note from our university clients that year-long positions have been replaced by nine- or 10-month contracts, and in order to retain or sponsor Tier 2 new hires, it looks like universities will need to consider hiring someone months before they need them, to avoid the UKVI imposed ‘cooling off period’.
It seems to us that regardless of any connections to the UK, the money invested into an education in the UK without reliance on public funds, that because of this particular oversight, this particular lecturer’s career has been set back which is so unjust; he is now returning to his parents’ home, (from which he moved away from in 1999), while his wife remains in the UK to complete her degree and her viva voce. The break-up of their family will, of course, put a great deal of financial and emotional strain on them, but unfortunately is a common problem due to the prescriptive nature of the UK immigration rules.
It is worth highlighting that there is no right of appeal against the UKVI’s decision to refuse this application because the ‘cooling off period’ applies.
We will continue to lobby the government on behalf of universities who feel undermined by the immigration rules. Let’s hope the new government will bring new changes.
Author
Founder and Managing Director Anne Morris is a fully qualified solicitor and trusted adviser to large corporates through to SMEs, providing strategic immigration and global mobility advice to support employers with UK operations to meet their workforce needs through corporate immigration.
She is a recognised by Legal 500 and Chambers as a legal expert and delivers Board-level advice on business migration and compliance risk management as well as overseeing the firm’s development of new client propositions and delivery of cost and time efficient processing of applications.
Anne is an active public speaker, immigration commentator, and immigration policy contributor and regularly hosts training sessions for employers and HR professionals
