The Points Based System was introduced in 2008 for all forms of business and employment related immigration, those seeking to study in the UK and their dependents. Heralded as a transparent and objective scheme, it remains beset with complexity, inconsistency and poor decision making.
The system comprises five categories or tiers each with several sub-categories:
- Tier 1 self-employment and investment (no UK sponsor required).
- Tier 2 Skilled Worker (replaced the old work-permit scheme; requires a UK sponsor/employer to hold a Home Office sponsor license enabling them to issue a Certificate of Sponsorship to a Prospective employee).
- Tier 3 (obsolete).
- Tier 4 Students (again, requires the UK sponsor/educational establishment to hold a Home Office sponsor license to enable them to issue a Certificate of Acceptance to a Prospective student).
- Tier 5 Temporary employment comprising two sub-categories, Youth Mobility enabling a young person under 30 from Australia, Canada, Japan, New Zealand, Monaco and Japan to live and work in the UK for up to two years or Temporary Workers for those sponsored by UK employers to work for up to six months.
Am I eligible?
Eligibility in each category was intended to be an objective exercise with the success of an application dependent upon the production of prescribed documentation/evidence set out in Home Office guidance; in practice, however, guidance frequently conflicts with legislation (i.e. the Rules) resulting in a plethora of case law and precedents which further complicate legislation.
E2W have a history of successful Points Based applications in all categories, and associated litigation in connection with adverse decisions based on our experience and familiarity with relevant legislation, its application and case law. Establishing eligibility, meeting requirements and collating prescribed evidence, which is subject to constant amendment, makes seeking professional legal advice imperative in this area.
The Tier 1 visa is for business people, investors & exceptionally talented individuals. There are three sub- categories:
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Tier 1 (General) – for highly skilled workers (this subcategory is closed and being phased out but if you would still like information on this route, please contact us.
Tier 1 (Investor) for people of substantial financial means making a considerable investment (in excess of £2 million in personal, disposable funds) in the UK.
Tier 1 (Entrepreneur) for those seeking to establish themselves in business in the UK or take over an existing business and with access to at least £50k investment funds; it is also possible to visit the UK as a “Prospective Entrepreneur” in order to secure agreements which may establish the entitlement to remain as Tier 1 Entrepreneur.
Tier 1 (Graduate Entrepreneur) is a relatively new category comprising those wishing to develop a business idea immediately upon graduating, and who have been identified and endorsed by an “authorized UK Higher Education Institution (HEI)” as having developed world-class innovative or entrepreneurial skills, but who are not at the time of their graduation in a position to meet the full requirements of the Tier 1 (Entrepreneur) route.
NB Switching – Graduates from outside the European Area who have studied in UK educational institutions and who have been identified by their college as having ”world class innovative ideas” are entitled to switch from Tier 4.
Tier 1 (Exceptional Talent) for exceptionally talented individuals in the fields of science, medicine, humanities, engineering, digital technology and the arts who have received an endorsement from the Home Office.
There are several types of Tier 2 Visas so it’s important to apply for the one that gives you and your potential employee the greatest chance of success.
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Tier 2 (General) Visa
This category is used for skilled workers applying from outside the UK and EEA who have received an offer of employment (and Certificate of Sponsorship) from a UK employer, who is also a licensed sponsor, for a job that is deemed to be at a sufficient skill level and commands a specified minimum salary; this category also includes positions listed on the “Shortage Occupation List” which is a list of jobs for which there is considered to be a national shortage of eligible candidates.
Intra-Company Transfers (ICTs)
Intra-Company Transfers (ICTs) allow Human Resource departments to move workers between the various countries they operate in. There are now only two (previously four) sub-categories within this route:
ICT Long-term staff
This visa is for transfers of more than twelve months into a role that can’t be filled by a new UK recruit. To qualify for this visayou’ll need to have worked for your company for more than 12 months, unless they’re going to pay you £73,900 or more a year to work in the UK. This sub-category allows you to stay up to a maximum of 60 months. However, if you are a high earner (>£120k pa), you can extend your stay up to a maximum of nine years. This category can also be used to extend a current migrant workers stay in the UK under certain circumstances.
ICT Graduate trainee
This visa is for transfers into graduate trainee programmes for specialist roles. You need to be a recent graduate with at least three months’ experience with your employer overseas.The graduate trainee sub-category is for a maximum of 12 months.
NB Tier 2 Visa – cooling off period; if a migrant had previously been sponsored under Tier 2 but their leave has expired or lapsed, they must wait 12 months before they can apply again under any Tier 2 category. There are exceptions to this rule for both Tier 2 Intra-Company Transfers and Tier 2 General Entry Clearance applications.
With the exception of Tier 2 (Intra-Company Transfer) migrants whose initial grant of leave postdates 6 April 2010, all Tier 2 migrants can apply for indefinite leave to remain after they have completed a period of 5 years’ lawful residence in the UK subject to meeting the other eligibility criteria regarding salary, knowledge of English language and maintenance.
Tier 4 of the points-based system covers the different types of visas for students and is divided into the following two subcategories:
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Tier 4 (General) Student
For students aged 16 or over, this subcategory covers students for the duration of their course. The points for attributes under Appendix A of the Tier 4 policy guidance are awarded to applicants seeking entry clearance on the basis of their “Confirmation of Acceptance for Studies” which is issued by the sponsoring education provider.
Students are not required to score points for command of the English language under Appendix B, but must be proficient in English to level B2 of the Common European Framework of Reference if they are studying at degree level or above, or to level B1 if they are studying at below degree level.
There are stringent requirements to obtain the necessary points for maintenance under Appendix C, particularly if the student’s course of study is in inner London.
Tier 4 (Child) Student
Children aged from 4 to 16 who wish to be educated in the UK and are studying at a fee paying school will be granted up to six years leave to remain or the duration of the course.
Tier 4 – Child
Applicants in the Tier 4 – Child category who are under 16 years old must be studying at a fee paying independent school.
For other applicants the Confirmation of Acceptance for Studies will, as with applicants in the (General) subcategory, itself provide the necessary 30 points for attributes.
If children are to be looked after by a foster carer or a relative in the UK instead of by their parents the arrangements for their care must meet the requirements for their care which are published in the the Home Office’s guidance.
Tier 5 of the points-based system is for people travelling to the UK to work temporarily under a Temporary Worker Visa or the Youth Mobility Scheme. This subcategory covers temporary workers from specialist professions to come to the UK to work for periods of both up to 12 months and up to 24 months.
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- Tier 5 (Temporary Worker – Charity Worker) visa This category is for overseas national wanting to undertake unpaid voluntary work for a registered charity in the UK.
- Tier 5 (Temporary Worker – Creative and sporting) visa This category is for temporary workers within the creative and sporting fields. Sportspersons need to make a significant contribution to their field of sport at the highest level in the UK to be eligible. Creative workers must make a unique contribution to the UK labour market – for example, models, musician, actors and actresses in film, television and theatre that are internationally renowned.
- Tier 5 (Temporary Worker – Government Authorised Exchange) visa This category can be used for those seeking entry to the UK for a short period of time for work experience or to do training, an Overseas Government Language Programme, research or a fellowship through an approved government authorized exchange scheme.
- Tier 5 (Temporary Worker – International Agreement) visa This category is for those contracted to do work covered by international law whilst in the UK, for example working for a foreign government or as a private servant in a diplomatic household.
- Tier 5 (Temporary Worker – Religious Worker) visa You may qualify for this category if you want to do religious work, such as preaching or working in a religious order in the UK.
- Tier 5 (Youth Mobility Scheme) visa This category replaced the Worker Holidaymaker scheme and enables people from Australia, Canada, Japan, Monaco, New Zealand, Hong Kong, Republic of Korea and Taiwan, as well as British Overseas