Is the Tier 2 Applicant exempted from 35K rule?

[yhdil]

Dear Members,

My brother has booked his ILR Set O appointment on 25th Aug.

He entered as Tier 2 General migrant on Dec 2009 and has since been on Tier 2. He applied for ILR in Dec 2015 but was refused as his sponsor licence was suspended and later revoked. He was served with 60 days curtailment.

Within 60 days he switched employer with same job code 5434 and salary of £21000.

Now he meets all requirement but bit confused about 35k rule. Does it apply on him? Can u share any rule as i failed to find any.

Also he did IELTs 5.5 Bands for his entry clearance. Can he state that he as previously satisfied B1 equivalent requirement as that center is still in the recent list.

Pls reply

[Sheffield_Marketeer]

Yes, he will be subjected to the 35K salary rule unless he has a Ph.D or is employed which is a Ph.D based role.

[iworker]

He will need to satisfy 35k min salary requirement, unless his job is/was on shortage occupation list.

[yhdil]

He entered on Tier 2 visa before April 2011 and new rule is applicable on those who got tier 2 after april 2011. Correct me if i am wrong.

If he was on new rule he hadnt been able to switch his employment after his recent ILR refusal as he had already spent 6 years.

[yhdil]

He will need to satisfy 35k min salary requirement, unless his job is/was on shortage occupation list.

His job was on SOL at the time of entry clearance and a labour mkt test was conducted. Job code 5434.

[yhdil]

http://researchbriefings.parliament.uk/ ... y/CBP-7264


I found this and does he not satisfy the last point of exemption from income threshold

[scotgal2628]

Hi All

Is anyone able to clarify whether, once ILR is granted, the 35k income has to be maintained? In other words, once you have the ILR, do you have to earn 35k for the rest of your life in the UK? I have read through a lot of the websites, etc and can't get a clear answer on that.

Thank you!

[yhdil]

Anyone??

[scotgal2628]

Sorry, is that a request someone to comment if they are able? or are you looking for clarification on my question? Thanks

[iworker]

this is not a 'Cool MIRC' where u are chatting with other people. This is a forum, where people respond when they want and when they have time.
I think what you want to know, whether they have to be paid above 35k after ilr or not is on a thin line and i dont think this is right place to ask this question. increasing the salary for the sake of ilr and then decreasing it would not be legitimate.

[Sheffield_Marketeer]

Dear Members,

My brother has booked his ILR Set O appointment on 25th Aug.

He entered as Tier 2 General migrant on Dec 2009 and has since been on Tier 2. He applied for ILR in Dec 2015 but was refused as his sponsor licence was suspended and later revoked. He was served with 60 days curtailment.

Within 60 days he switched employer with same job code 5434 and salary of £21000.

Now he meets all requirement but bit confused about 35k rule. Does it apply on him? Can u share any rule as i failed to find any.

Also he did IELTs 5.5 Bands for his entry clearance. Can he state that he as previously satisfied B1 equivalent requirement as that center is still in the recent list.

Pls reply

You have mentioned that he changed employment in 2015 to a new Tier 2 Sponsoring company.
That will mean he will be subjected to the 35K salary.7
To get an ILR on a salary of 35k, and it being reduced immediately (within a few months) would be seen as a deception and might mean ILR being revoked.
It's a different matter of course if someone loses their job, is made redundant etc.

[yhdil]

Dear Members,

My brother has booked his ILR Set O appointment on 25th Aug.

He entered as Tier 2 General migrant on Dec 2009 and has since been on Tier 2. He applied for ILR in Dec 2015 but was refused as his sponsor licence was suspended and later revoked. He was served with 60 days curtailment.

Within 60 days he switched employer with same job code 5434 and salary of £21000.

Now he meets all requirement but bit confused about 35k rule. Does it apply on him? Can u share any rule as i failed to find any.

Also he did IELTs 5.5 Bands for his entry clearance. Can he state that he as previously satisfied B1 equivalent requirement as that center is still in the recent list.

Pls reply

You have mentioned that he changed employment in 2015 to a new Tier 2 Sponsoring company. That will mean he will be subjected to the 35K salary.



I Do not agree with this as his change of employer was after April 2016 and if new rules were applicable he had not got extension as he has already been on tier 2 more than 6 years.

See tier 2 policy guidance 4/2016: part10 page 61 state this:

265.You will be exempt from the minimum earnings threshold if any of the following apply to you:

 Your continuous 5 year period includes all or part of a grant of leave as a qualifying work permit holder, or as a Tier 2 migrant where your Certificate of Sponsorship was assigned before 6 April 2011;
 You have been employed in a job:
 that appears on the Shortage Occupation List in Appendix K, or has appeared on that list during any time you were being sponsored to do that job during the last 6 years;

[Sheffield_Marketeer]

http://screencast.com/t/p7rK4Xvlb7an

You're partly right.

As someone who was on Tier 2 Gen before 2011, he is not under restriction of the 6 years maximum Tier 2 Period.

What he will however need to demonstrate is the 35K salary.

PS: Having read this, http://researchbriefings.parliament.uk/ ... y/CBP-7264 I am now confused.
This could be interpreted both ways - i.e. for someone who was on a Tier 2 that was issued pre April 2011 and is continuing on and will need to settle in 2016.

Or could it mean in your brother's case (new Tier 2 issued in 2015, but having a history of being on Tier 2 in 2011)

[Sheffield_Marketeer]

Seems it all depends on the current COS.

If it was given post 2011 (which it is in your brother's case), then he won't be exempt.
See here:
http://screencast.com/t/Wky8TABiFzwD

This might be of importance:

Shortage
Occupations
If the migrant is currently sponsored in a shortage occupation role they are exempt from the minimum earnings threshold. In addition migrants
currently in a role which has previously been in shortage may also be
exempt. The role must have appeared on the Shortage Occupation List(SOL)at any time
when the applicant:

had leave as to work in that occupation during the 6
-
year period
directly prior to the
date of their ILR application

was assigned a
CoS
for that occupation,
which led to a grant
of leave, during the 6
-
year period directly prior to the date of their ILR application
The migrant does not have to be working for the same employer who sponsored them at the
time the role was in shortage.
The migrant must still be working in the
role which is, or was previously, in shortage. If they
changed employment and they are currently sponsored in a job which has not been on the
SOL since they started in it, they are not exempt from the minimum earnings threshold.
Appendix K of the Immigrat
ion Rules contains a list of
all shortage roles
since
6 April 2011

[yhdil]

Seems it all depends on the current COS.

If it was given post 2011 (which it is in your brother's case), then he won't be exempt.
See here:
http://screencast.com/t/Wky8TABiFzwD

This might be of importance:

Shortage
Occupations
If the migrant is currently sponsored in a shortage occupation role they are exempt from the minimum earnings threshold. In addition migrants
currently in a role which has previously been in shortage may also be
exempt. The role must have appeared on the Shortage Occupation List(SOL)at any time
when the applicant:

had leave as to work in that occupation during the 6
-
year period
directly prior to the
date of their ILR application

was assigned a
CoS
for that occupation,
which led to a grant
of leave, during the 6
-
year period directly prior to the date of their ILR application
The migrant does not have to be working for the same employer who sponsored them at the
time the role was in shortage.
The migrant must still be working in the
role which is, or was previously, in shortage. If they
changed employment and they are currently sponsored in a job which has not been on the
SOL since they started in it, they are not exempt from the minimum earnings threshold.
Appendix K of the Immigrat
ion Rules contains a list of
all shortage roles
since
6 April 2011

Many thanks for taking time. Its encourging

I think now we are on same page

If i date back his 5 most recent years, i.e. Aug 2011. During that time he was on cos which was issued on dec 2009.

Also he has been on job code 5434 which appeared on SOC each time he got visa.

Therefore his appropriate rate of pay is the one mentioned in his current COS.

Also he did ielts back in 2009 above B1 level. The test and centre both r still in list. Do u think its going to be ok?

[scotgal2628]

Hi - Apologies if this was taken the wrong way but I was not implying that the salary be increased for the sake of the ILR. I was just wanting to understand if this new requirement essentially means that once you have been granted an ILR, you must be held to that threshold as long as you live in the UK as clearly this would weigh on the decision of whether to apply for an ILR and remain in the UK.

[Sheffield_Marketeer]

Hi - Apologies if this was taken the wrong way but I was not implying that the salary be increased for the sake of the ILR. I was just wanting to understand if this new requirement essentially means that once you have been granted an ILR, you must be held to that threshold as long as you live in the UK as clearly this would weigh on the decision of whether to apply for an ILR and remain in the UK.

All the Home Office have said is that at the time of the ILR someone is paid the appropriate rate AND a minimum of 35k.
In the course of life, life changing events take place and that means someone can be paid at a lower rate in the future than they are earning now.
The Home Office have not mentioned anything about how much an ILR holder needs to be earning.
On receiving ILR one might even lose a job earning £0.

What the Home Office will keep an eye out on people with lower incomes 'suddenly' getting 35k or higher during their ILR and mysteriously going back to their previous pay scales, providing this is a trend they observe, much like the Tier 1 taxation issues.

[Sheffield_Marketeer]

Seems it all depends on the current COS.

If it was given post 2011 (which it is in your brother's case), then he won't be exempt.
See here:
http://screencast.com/t/Wky8TABiFzwD

This might be of importance:

Shortage
Occupations
If the migrant is currently sponsored in a shortage occupation role they are exempt from the minimum earnings threshold. In addition migrants
currently in a role which has previously been in shortage may also be
exempt. The role must have appeared on the Shortage Occupation List(SOL)at any time
when the applicant:

had leave as to work in that occupation during the 6
-
year period
directly prior to the
date of their ILR application

was assigned a
CoS
for that occupation,
which led to a grant
of leave, during the 6
-
year period directly prior to the date of their ILR application
The migrant does not have to be working for the same employer who sponsored them at the
time the role was in shortage.
The migrant must still be working in the
role which is, or was previously, in shortage. If they
changed employment and they are currently sponsored in a job which has not been on the
SOL since they started in it, they are not exempt from the minimum earnings threshold.
Appendix K of the Immigrat
ion Rules contains a list of
all shortage roles
since
6 April 2011

Many thanks for taking time. Its encourging

I think now we are on same page

If i date back his 5 most recent years, i.e. Aug 2011. During that time he was on cos which was issued on dec 2009.

Also he has been on job code 5434 which appeared on SOC each time he got visa.

Therefore his appropriate rate of pay is the one mentioned in his current COS.

Also he did ielts back in 2009 above B1 level. The test and centre both r still in list. Do u think its going to be ok?

If 5434 was on shortage list when he got the present COS and is not in the shortage list now, I would say he holds a fair chance of getting the ILR.

[yhdil]

Hi thanks for replay again. I spoke with ukvi helpline and much relieved for my brother.

The rep said that he is exempted from 35k criteria as per tier 2 policy guidance 10:265 since part of his leave is from the cos issued before 2011 rule. I asked about cos but ahe said that becomes irrelavant as he is to satisfy either of the 4 conditions

[Sheffield_Marketeer]

Hi thanks for replay again. I spoke with ukvi helpline and much relieved for my brother.

The rep said that he is exempted from 35k criteria as per tier 2 policy guidance 10:265 since part of his leave is from the cos issued before 2011 rule. I asked about cos but ahe said that becomes irrelavant as he is to satisfy either of the 4 conditions

Great news for your bro!