Employees Switching from Tier 4 to Tier 2
If you are an employer looking to hire an international student graduate who has studied in the UK under Tier 4 of the points based system, the following guidance sets out the process of switching from a Tier 4 to Tier 2 visa.
Further reference should also be made to the detailed Home Office guidance ‘Tier 2 of the points based system: policy guidance’ – to be read in conjunction with the relevant up-to-date provisions of the Immigration Rules.
Who is eligible to switch from Tier 4 to Tier 2?
Tier 2 is the primary immigration route for working in the UK, and specifically applies to skilled workers with the offer of employment. However, a Tier 4 visa holder will only be eligible to switch from Tier 4 to Tier 2 if they have completed one of the following:
- a UK bachelors degree
- a UK masters degree
- a postgraduate certificate in education
- a professional graduate diploma of education
- at least 12 months of a PhD during their current period of leave or a period of continuous leave.
The candidate must have studied at a UK institution that is a UK recognised or listed body, or an education provider that holds a licence for sponsoring students under Tier 4 of the points-based system. The list of institutions licensed to sponsor migrant students under Tier 4 is set out under the Home Office ‘Register of Sponsors (Tier 4)’.
Any periods of UK study and/or research towards their qualification must have been undertaken whilst they had entry clearance, leave to enter or leave to remain in the UK that was not subject to a restriction preventing them from undertaking it.
In the event that the candidate does not satisfy the requirements to switch from Tier 4 to Tier 2, or their permission has already expired, they must leave the UK and apply for re-entry under the Tier 2 (General) category.
What are the criteria for a Tier 2 (General) visa?
In order to apply for a Tier 2 (General) visa the prospective employee will also need the following:
- an offer of a job that meets the Tier 2 (General) skill and salary level, and
- a valid certificate of sponsorship from you as their licensed sponsor.
Skill & salary level requirement
When switching from a Tier 4 to Tier 2 (General) visa, any job that is offered to a prospective employee must meet the Tier 2 skill and salary levels of one of the Standard Occupation Codes. To be granted a Tier 2 (General) visa, the job will usually need to be Regulated Qualifications Framework (RQF) level 6 or above. In a creative sector occupation, or for a job that appears on the list of shortage occupations, the job must be skilled to RQF level 4.
The minimum salary threshold for new entrants is £20,800 per annum – or the appropriate rate for the particular job on offer, whichever is higher. The appropriate rates of pay for each occupation are set out in Codes of Practice for skilled work under the Immigration Rules.
The certificate of sponsorship must confirm that the job is at the required skill level and that the prospective employee will be paid at or above the appropriate rate for the job.
Certificate of sponsorship requirement
When switching from a Tier 4 to Tier 2 (General) visa, you will need to assign the prospective employee a certificate of sponsorship. You must be specifically licensed for Tier 2 (General) as a specific category of workers in order to assign a valid certificate. Further, you must only assign a certificate of sponsorship if the prospective employee is appropriately qualified or registered to do the job.
In the event that you need to apply for, or renew, a Tier 2 (General) sponsor licence, reference should be made to the Home Office guidance ‘Tiers 2 and 5: guidance for sponsors’. Expert legal advice should also be sought from an immigration specialist.
Additional Tier 2 requirements
When making a Tier 2 (General) visa application, an applicant will also need to prove their knowledge of the English language and that they can support themselves for the first month.
When switching from a Tier 4 to Tier 2 (General) visa, the proof of English requirement can be easily evidenced through their academic qualification.
In respect of the ‘maintenance’ requirement, as their potential employer you may need to certify maintenance on their behalf – otherwise the applicant will need to show they have at least £945 in their bank account for a continuous period of 90 days before applying.
The Tier 4 to Tier 2 application process
An application for a Tier 4 to Tier 2 visa switch must be submitted within three months of the certificate of sponsorship being issued, and no more than three months before the intended start date of employment.
The Home Office will assess the application on the basis of how many points the applicant has accumulated under the points-based system. Under Tier 2 (General) applicants must gain a minimum of 70 points. This is calculated as follows:
- 30 points for switching from Tier 4 to Tier 2
- 20 points for earning the minimum level salary or industry equivalent
- 10 points for meeting the English language requirement
- 10 points for meeting the maintenance requirement.
When switching from Tier 4 to Tier 2, there is no additional requirement on you, as the prospective employer, to undertake a resident labour market test for any job that you offer. The requirement to carry out this test is usually a prerequisite to recruiting a Tier 2 worker to demonstrate that there are no suitable settled workers to fill the post. This procedural concession in Tier 4 to Tier 2 applications will significantly streamline the overall process.
Further, recent guidance (January 2018) makes it clear that Tier 4 visa holders on non-PhD courses can apply to switch to Tier 2 as soon as they finish their course – without having to wait for their final results. Rather than providing their certificate of award, the applicant will need to provide evidence that they have sat all their exams and presented all their coursework for assessment.
As the prospective employer, you must still assess a candidate’s expected grades during your interview and selection processes. In the event that they subsequently fail to obtain their relevant qualification, you will need to terminate their employment.
A successful Tier 4 to Tier 2 applicant will normally be granted leave for up to 5 years. This will be based on the start date shown on the certificate of sponsorship, or a period equal to the length of the engagement – whichever is shorter. It may be possible to extend this time, although your new employee will not be able to extend their total stay beyond 6 years.
Seeking legal advice when switching from a Tier 4 to Tier 2 visa
The Immigration Rules can be complex and subject to constant change. An experienced immigration specialist can help with all aspects of any Home Office application, including a switch from a Tier 4 to Tier 2 visa. This will enable you, in turn, to provide practical advice and guidance to any prospective employee.
The matters contained in this article are intended to be for information purposes only. This article does not constitute legal advice and should not be treated as such. Before acting on any of the information contained herein, expert legal advice should be sought.