The rules relating to switching from Tier 2 (ICT) to Tier 2 (General) can be complex and unclear. Because it can be difficult for sponsors to assess whether or not an individual they wish to hire must leave the UK for the 12 month Tier 2 cooling off period, we have outlined the rules below.
The Immigration Rules
The legislation relating to the Tier 2 cooling off period and this area of immigration law generally can be found in paragraph 245HD Immigration Rules HC 395 (as amended). This states:
“(c) An applicant who has, or was last granted leave as a Tier 2 (Intra-Company Transfer) Migrant must:
(i) have previously had leave as a Tier 2 (Intra-Company Transfer) Migrant under the Rules in place before 6 April 2010, or in the Established Staff sub-category under the Rules in place before 6 April 2011,
(ii) not have been granted entry clearance in this or any other route since the grant of leave referred to in (i) above; and
(iii) not be applying to work for the same Sponsor as sponsored him when he was last granted leave”.
The correct legal position
Individuals can switch into Tier 2 (General) from Tier 2 (ICT) if they entered the UK before 6 April 2011, providing they have not made an application for entry clearance (i.e from abroad) since then and providing they are changing sponsors.
If such individuals have continued to reside lawfully in the UK since they arrived under Tier 2 (ICT), and providing any applications they have made to extend their stay under Tier 2 (ICT) have been made from inside the UK, they will not be affected by the 12 month Tier 2 cooling off period if they subsequently decide to switch into Tier 2 (General). Under the rules that are currently in place, they will be able to switch into Tier 2 (General) and take up a job with a a new employer providing the other requirements of Tier 2 (General) are met (RLMT, skills threshold, salary level, etc).
Individuals who entered the UK under Tier 2 (ICT) on or after 6 April 2011, or those who entered before then but have since made an application for entry clearance from abroad, will have to leave the UK for the 12 month Tier 2 cooling off period before they can return under Tier 2 (General). The only exception to this rule is if the individual has been offered a new role and will be paid a salary at the ‘higher rate'(this is currently £152,100 but it will be increased to £153,500 on 6 April 2014).
Please note that since this article was published we have provided updated information which you can find here.
If you’d like to chat through your situation on an informal basis, just give us a call.