There are numerous requirements that employers sponsoring individuals under Tier 2 must meet. One of the more complex ones relates to the minimum salary criteria. Jessica Walker, associate at Carter Thomas, looks at this complex area of law.
With different minimum salary rates for Tier 2 workers depending upon whether the sponsorship will be under Tier 2 (General) or Tier 2 (Intra-Company Transfer (ICT)), whether the individual is a ‘new entrant’ or ‘experienced worker’, the SOC code, the number of hours to be worked and not forgetting Indefinite Leave to Remain (ILR), it is not surprising that many sponsors find this a particularly complex requirement to navigate.
As a general rule, a sponsored worker must be paid at or above either the minimum salary for their SOC code, or the overall minimum salary for their circumstances, whichever is the highest.
‘New entrant’ or ‘experienced worker’
In order for an individual to be classed as a ‘new entrant’ and therefore be eligible for the lower salary rate, they must:
- be switching from the Tier 4 (General) category from within the UK after successfully completing their studies;
- be applying for leave under the Tier 2 (ICT) Graduate Trainee sub-category; or
- be under the age of 26 on the date that they make their application.
In addition, the individual must be making an application which will take their total time spent with leave under Tier 2 to no more than three years and one month, and the individual must not be applying for ILR.
If the individual does not meet the above criteria, they will need to be paid at least the ‘experienced worker’ rate or the overall minimum salary for the category of leave for which they are applying.
Appendix J of the Immigration Rules: codes of practice for skilled workers, regularly referred to as the SOC codes, sets out the minimum salaries for both new entrants and experienced workers in the different job areas that are eligible for sponsorship under Tier 2.
When employing a sponsored worker, a sponsor should carefully review the SOC codes to ensure that the salary to be paid is sufficient for the role. If a salary does not meet the required level, then the worker’s application for leave will fall for refusal.
When looking at the minimum salary for the SOC code, sponsors should also take into account the number of hours work that the required salary is based upon.
The majority of salaries are based upon a 39-hour working week however, this does vary in certain cases and it can cause complications particularly where a worker will be paid the minimum salary for their role.
For example, if the minimum salary for a role is £30,000 for a 39-hour week, if the worker was to be paid £30,000 for a 40-hour week, their application would fall for refusal as they would not be deemed to be meeting the minimum salary requirement. If working a greater number of hours, a higher salary would therefore be required.
You can find information on how to choose a SOC code here.
Tier 2 (General)
The absolute minimum salary rate for new entrants under the Tier 2 (General) route is £20,800. Experienced workers must be paid a salary of at least £30,000.
If the relevant SOC code sets out a higher salary however, the higher salary, as per the SOC code must be paid.
Tier 2 (ICT)
Those seeking sponsorship under the Tier 2 (ICT) category must be paid a salary of at least £41,500 or the experienced worker rate as set out within the SOC codes, whichever is higher. The exception to this is if an individual is to be sponsored under the Tier 2 (ICT) Graduate Trainee route.
If applying as a Graduate Trainee, an individual must be paid at least £23,000 per annum, or the new entrant rate for the applicable SOC code, whichever is higher.
Indefinite Leave to Remain (ILR)
Individuals who have held leave under the Tier 2 (General) category for five years can apply to for ILR (also known as settlement). In order to do so, they would need to meet a number of requirements, not least a minimum salary requirement. The minimum salary threshold is set to increase each year in line with the following:
- If applying for ILR before 6 April 2019: £35,500
- If applying for ILR before 6 April 2020: £35,800
- If applying for ILR before 6 April 2021: £36,200
- If applying for ILR before 6 April 2022: £36,900
- If applying for ILR on or after 6 April 2022: £37,900
There is an exception to the minimum salary requirement for ILR for individuals whose roles appear on the Shortage Occupation List or are skilled to PhD level as per the SOC codes.
White Paper proposals
In its White Paper, issued on 19 December 2018, the Government set out a number of proposals for the UK’s post-Brexit immigration system, including potentially significant changes to the Tier 2 route. Changes to the minimum salary requirement may therefore be on the horizon.
The Migration Advisory Committee has recommended to the Government that the current minimum salary levels should be carried over to the future immigration system. The Government has stated that it will consult widely with employers and others on this point before reaching a final decision.
An application that does not meet the minimum salary requirement will fall for refusal and due to the substantial costs involved with sponsorship, it is beneficial to get this right first time.
We are experienced in advising both employers and individuals in relation to the minimum salary requirement and should you require any further information about this or any other aspect of sponsorship, please contact us.