The Tier 2 (General) visa subcategory is designed for applicants wishing to take up skilled employment in the UK where there is an existing vacancy in the UK labour market that cannot otherwise be filled.
In order to qualify under the Tier 2 (General) visa subcategory an applicant must be sponsored by an employer who holds a valid sponsor licence and the applicant must satisfy the requirements under the Points Based System. There is a minimum salary requirement (20 points), minimum level of English requirement (10 points), and a maintenance requirement (10 points). The employer needs to issue a Certificate of Sponsorship to an individual, enabling them to submit an application to the Home Office. The Certificate of Sponsorship is a vital requirement of the Points Based System associated with Tier 2 (General) visa applications, accounting for up to 30 points out of the 70 points required.
In many cases, once an individual has been issued a Certificate of Sponsorship they will apply for a Tier 2 visa, but will not have access to on-going information relating to the Sponsor Licence, including if that licence is revoked.
The Court of Appeal ( EWCA 2103) has upheld an earlier decision, which found that applications for Tier 2 (General) visas will be declared invalid if, at any point before the application is granted, the sponsor’s Tier 2 (General) licence has been revoked.
In the above case, the applicants each held a valid Certificate of Sponsorship from their prospective employers at the time of application. During the time their applications were under consideration with the Home Office, however, their employer’s Sponsor Licence was revoked. This resulted in the applicants’ applications being refused.
The employees were not warned by the Home Office about the revocation of the license. They were not given a grace period of 60 days from the date of the refusal to find an alternative employer, because the applications were refused before the applicants were ever granted leave to remain as Tier 2 (General) Migrants in the UK. The Court of Appeal upheld the refusals, stating applicants should be well aware of the rules and guidance that apply to them whilst the application was under consideration and be aware of the associated risks. Applicants should only benefit from the 60-day grace period if they had pre-existing leave to remain in the UK, which would be curtailed by a refusal.
On this basis the Court of Appeal found that the Home Office can refuse an application, even in circumstances where applicants have not received any notification of the license withdrawal. The Court justified the decision on the basis that the aims of the Points Based System were to “achieve predictability, administrative simplicity and certainty”, and this system operates “at the expense of discretion”.
If you need assistance with a Tier 2 application please contact us.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.