Why the Tier 2 visa system needs a rethink

The Tier 2 visa cap and system of allocating restricted Certificates of Sponsorship is in dire need of reform, says Anne Morris

Why the Tier 2 visa system needs a rethink

In June, the Government removed NHS doctors and nurses from the Tier 2 visa cap and the requirement to apply for restricted Certificates of Sponsorship (CoS). Home Office figures now show that for the first time since November 2017, all applications for restricted Certificates of Sponsorship in August were approved. Can we read these figures as an indication that better times are ahead, or are they merely a temporary reprieve in an otherwise faulty system?

What is a restricted CoS? 

To onboard a non-EEA national under the Tier 2 skilled worker route, organisations have to hold a valid sponsor licence. They need to issue a CoS to the intended employee, who then uses it to make their individual Tier 2 visa application to the Home Office.    

There are two different classes of CoS and employers must ensure they use the relevant type in the correct way:

  • Unrestricted CoSs are for individuals who are already based in the UK and are ‘switching’ to the Tier 2 category. 
  • Restricted CoSs are for non-EEA nationals applying from outside the UK to enter under a Tier 2 (General) visa and who will be earning under £155,300 per annum, and individual dependants of Tier 4 students applying from the UK wishing to switch to a Tier 2 (General) visa. 

Employers have to apply to UK Visas and Immigration (UKVI) for a restricted CoS and with a cap on the number that are available, not all applications are guaranteed to be approved.

UKVI administers the restricted CoS by assessing applications on a monthly basis. When total CoS applications for a month are below the monthly allocation, they are carried over to the next month’s allocation. But when applications exceed the month’s allocation, priority is given to higher-scoring applicants, such as those with a higher salary or for a shortage occupation – as was the case at the end of last year for NHS doctors. 

Employer challenges of the restricted CoS 

Employers across all areas of the economy have faced challenges with restricted CoS and the Tier 2 visa cap since its introduction in 2011. Under current rules, satisfying the points-based eligibility requirements for a Tier 2 visa is not enough in itself to guarantee a CoS will be issued. 

Each year, 20,700 Tier 2 visas are made available. The cap has remained the same since it was introduced seven years ago. This has drawn criticism from employers for being arbitrary and out of touch with the needs of the UK economy.

The Tier 2 (General) visa application process is demanding on both employer and individual applicants. It is onerous, resource-intensive and costly. A refusal for an otherwise eligible application solely on the basis that the cap has been exceeded is galling and disruptive to employers. Applicants may withdraw their interest, leaving the employer months down the line without an employee in place and considerably out of pocket.  

The result: even the most sophisticated, organised and well-intentioned organisations struggle to operate under the system. 

Compounding the lack of availability of visas is the lack of transparency and sufficient notice of how many CoSs will be allocated each month. 

Whereas one month, an application with a £50k salary may be successful, there are no guarantees this will be the case in successive months. Allocations are reset at the start of the year in April. We tend to see CoS allocations being ‘frontloaded’, with more being made available in months earlier in the year, but there is a lack of transparency or advanced indication of how many CoSs will be made available each month across the year.

How can organisations plan effectively for recruitment needs when the bar is continually being moved?

Skilled workers in a new UK immigration system

Removing NHS doctors and nurses from the visa cap was a much-needed move – but it was also temporary. And it hasn't gone far enough. 

Other areas of the economy are equally suffering shortages of skilled workers – teaching and engineering for example – but are hindered in resolving recruitment issues by the current system of restricted CoS allocations and an arbitrary cap that bears no relation or significance to market need. 

It was encouraging to see the Migration Advisory Committee (MAC) highlighting issues with the existing Tier 2 route in its EEA Migration report. While the MAC conceded the Tier 2 route could serve as a basis on which to build a skill-focused post-Brexit migration system, it stated unequivocally that improvements would have to be made to ensure it was fit for purpose – including the abolition of the Tier 2 visa cap.  

Anne Morris is an immigration solicitor and managing director of immigration law firm DavidsonMorris