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UK Government moves to exempt doctors and nurses from Tier 2 visa cap, freeing up visas for other sponsors

Executive summary

The Government has announced a number of changes to the UK immigration rules from 6 July 2018 - most notably the exemption of doctors and nurses from the Tier 2 visa cap. This means thousands of visas will now be available to other employers wishing to sponsor non-European workers. The operation of the cap has meant that many employers have been unable to sponsor visas for roles with salaries of less than £50,000 per annum since December 2017.

Other changes include a modification to the manner in which absences are counted for the purposes of Indefinite Leave to Remain (ILR) and increased flexibility for retaining ILR status whilst outside the UK for extended periods. Both changes work in the favour of applicants.

Further details

Changes to the Tier 2 cap

There is a limit of 20,700 Tier 2 (General) Restricted Certificates of Sponsorship available to sponsors each year, running with the tax year from April to March. The limit is divided into monthly allocations, with more RCoS being available in April and less being available towards the end of the year. Sponsors are able to request RCoS as required on a monthly basis. These requests are considered by the Home Office panel on the 11 of each month, and where demand for RCoS exceeds the number available in any given month, requests are prioritised. Prioritisation for roles that are not featured on the current Shortage Occupation List (SOL), or that are not at PhD level is according to salary.

The monthly limit has been exceeded for six consecutive months from December 2017. Given the prioritization criteria, and the number of shortage and PhD applications, the minimum salary for non- shortage, non-PhD roles has not dropped below £50,000 since November 2017, meaning many employers have been unable to sponsor non-European workers to fill these roles.

The change, which takes effect from 6 July 2018, means that doctors and nurses will not require RCoS. This means that annually, around 7,000 – 8,000 additional RCoS will be available to other sponsors, based on Home Office estimations that approximately a third of the annually available RCoS are allocated to doctors and nurses.

As this change will take effect from July 2018, we expect the monthly allocation to be exceeded in June 2018. Our current estimation is that applications for non-PhD, non-shortage roles with salaries below £55,000 will be rejected.

From July 2018, employers should experience a reduction in the monthly salary threshold. However there are many factors which dictate where this salary threshold sits each month, and so it is extremely difficult to predict the exact threshold in advance.

Counting absences from the UK when applying for Indefinite Leave to Remain (ILR)

In December 2017, the immigration rules for many ILR applicants were changed from requiring the applicant to have less than 180 days of absence from the UK in each of the five consecutive twelve month periods that made up the qualifying period, to requiring the applicant to have less than 180 days of absence from the UK in any 12 month period during the five year qualifying period. This was a change from a more flexible rule to a less flexible rule, and there has been concern amongst applicants that they would be disadvantaged by this retrospective change.

The Government is now introducing a transitional rule, such that only absences from the UK during periods of leave granted from 11 January 2018 will be counted in line with the less flexible rule detailed above. All absences from the UK during prior grants of leave will be counted in line with the more flexible rule mentioned above.

Returning residents

Holders of Indefinite Leave to Remain can lose this status after an extended absence from the UK of two or more years. The Government is making minor amendments to the immigration rules to make it clear that ILR status can be retained beyond two years where the holder demonstrates “strong ties” to the United Kingdom and that they intend to make the UK their permanent home.

Next steps

The exemption of doctors and nurses is likely to have a positive impact for employers who have been unable to secure Tier 2 (General) visas under the cap. It is however important to consider that demand for these visas remains extremely high, and so the cap may continue to cause delays for a while yet. Employers should continue to discuss these challenges with other areas of their business.

EYG no. 03746-183Gbl

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