Adviser and trainer Andrew Humphrey looks at some of the common problems around securing a job with Tier 2 visa sponsorship.
Some aspects of switching from a Tier 4 student visa to a Tier 2 work visa have become more straightforward recently, especially the logistics of the visa application itself. I blogged about this recently for UKCISA. However, whether you can apply at all starts with being offered a sponsored skilled job with Tier 2 visa sponsorship. It is this stage which can be time-consuming and tricky.
This article looks at some of the most common problems with employers when switching from Tier 4 to Tier 2. If you need individual advice about job applications or dealing with employers, speak to the Careers Service at your university or college.
For full details of eligible jobs, minimum salary and skill levels, and eligibility for a Tier 2 application in the UK, see UKCISA's detailed guide to Tier 2 visas.
This is a common issue which causes many applicants unnecessary anxiety.
A job description, job specification or generic application form will commonly say that you must have permission to work in the UK. This immediately puts some Tier 4 visa holders on the back foot, and may even deter some from applying for the job.
A Tier 2 sponsor who includes something like this in the job description for an eligible Tier 2 job is unlikely to be saying that you need existing work permission in order to apply for the job, or to be interviewed. Such a requirement could be unlawful, following the Employment Appeal Tribunal case of Osborne Clarke Services v Purohit.
It is highly likely that the employer is just correctly stating the law: you need to have immigration permission that allows you to work in order to start the job. On their first day of work, all employees (including UK and European Economic Area nationals) must take their passport to the Human Resources department for copying, and non-EEA nationals will have their visa copied. This is so the employer knows you can legally work in the UK. In your case, you would be showing either your Tier 2 visa that the employer has sponsored, or (more likely) your Tier 4 visa plus evidence that you have a Tier 2 visa application pending.
If you are not clear how to answer such a question, or what it may mean for your application, check with the employer directly to ascertain what they are actually saying or asking.
When an employer asks specifically if you have a 'work permit', they appear to be using confusing terminology that is both outdated and incorrect. A 'work permit' is an old immigration category that was replaced by Tier 2 in over 10 years ago. The employer sponsored you for a work permit just as they would now sponsor you for a Tier 2 visa.
It is likely that the employer is using the phrase 'work permit' loosely (and inaccurately), and is simply asking if you have (or need) a type of visa that allows you to work. As someone with a Tier 4 visa, your answer to that question would be "Yes". If you want to expand on that, an appropriate answer would be something like "I can currently work under my Tier 4 visa conditions, and I would need Tier 2 sponsorship to do this job".
They should not be using your answer to this question to screen out candidates. Such a requirement could be unlawful, following the Employment Appeal Tribunal case of Osborne Clarke Services v Purohit.
If the employer does not have a Tier 2 sponsor licence, they obviously cannot employ someone who needs Tier 2 visa sponsorship. If you are thinking of applying for a job with such an employer, check whether they have any plans to become a Tier 2 sponsor. If they do not, and cannot be persuaded, you could not do this job anyway.
If your employer has applied for a Tier 2 sponsor licence and the application is still pending, you will need to be prepared for different outcomes. If the licence has not been issued by the time your Tier 4 visa expires, you will need to leave the UK. Any Tier 2 application will then need to be made in your home country. This in turn means you would need to satisfy the resident labour market test (RLMT) and have a restricted certificate of sponsorship, and the employer would need to pay the Immigration Skills Charge. It is possible that the employer will not be able to sponsor you for an out-of-country application because of these extra requirements, so you need to discuss with them what will happen if you run out of time.
The detailed guide to Tier 2 visas on this website includes a guide to the extra requirements when applying outside the UK.
Some employers might not understand that someone who is switching from Tier 4 to Tier 2 does not need to satisfy the resident labour market test (RLMT) and that certificates of sponsorship are not restricted for them. You could refer them to paragraph 78B of Appendix A to the Immigration Rules which explains the exceptions.
An employer might have imposed a limit on the number of certificates of sponsorship they will issue, but this is that employer's internal policy, not a Home Office requirement.
Although you do not have to satisfy the resident labour market test, and certificates of sponsorship are not restricted, you will not automatically be assigned a Tier 2 certificate of sponsorship if you are offered a full-time job. This is because you can only be sponsored under Tier 2 for a job that also meets the requirements and minimum levels of salary and skill laid out in the Immigration Rules.
It depends why they need to see them.
For example, it may be a condition of the job offer that the successful candidate has been awarded a specific qualification or has achieved a certain result. This is nothing to do with any Tier 2 requirements, but the employer's criteria for offering the job to anyone, including a British citizen or someone else living permanently in the UK. This requirement should be contained in the job specification or in the list of criteria that you used when applying for the job.
If the job offer is not conditional on your result, but the employer still wants to see your results before issuing the CoS, you can ask why. It is possible that the employer has not fully embraced the recent changes in the immigration rules about the earliest date a CoS can be issued. Since 30 March 2019, you can get a COS and apply for Tier 2 up to 3 months before the completion date of your course. Before this date it was different:
- 11 January 2018 to 29 March 2019: student must have completed their course (with or without their results)
- before 11 January 2018: student must have obtained their final results
If your employer thinks your results or evidence you have finished your course are needed to meet Home Office requirements, and they appear to be looking at old rules, you could refer them to Part 6A (and the related Appendices) of the Immigration Rules for Tier 2 (General) Migrants, as well as the Tier 2 policy guidance.
What other issues have you experienced with Tier 2 employers? Leave a Comment below. Please do not post questions asking for advice about your individual situation: if you have a question about an individual case please contact the International Student Adviser at your institution or UKCISA's students' advice line.
Andrew Humphrey is a freelance student adviser and trainer. He tweets at @andrew_humphrey.
