Employers often approach us for advice on retaining/hiring foreign nationals who are currently studying in the UK or who have recently graduated. The good news is that there are currently a number of immigration options available.
Tier 2 sponsored work route
The most common immigration category for non-EEA nationals who wish to work in the UK after completing their studies here is the Tier 2 (General) sponsored work category.
The prospective employer must hold a sponsor licence in order to be able to sponsor non-EEA individuals under Tier 2. If the company does not already hold a valid sponsor licence, it would need to apply to the Home Office for one and it can take the Home Office up to 8 weeks to process this sponsor licence application.
Assuming the company holds a valid Tier 2 sponsor licence, employers then need to check that the individual they want to employ in a permanent role is eligible to switch into Tier 2 (General). Only skilled roles at RQF level 6 or above are eligible for sponsorship under Tier 2 – generally this means professional management roles or graduate occupation roles. There are also minimum salary requirements, which will depend on the exact role that is vacant.
Individuals who have current leave under Tier 4 (General) are permitted to switch into the Tier 2 (General) category without the employer having to undertake the onerous ‘resident labour market test’. The resident labour market test is the requirement to advertise the role in a prescribed manner in order to first try to recruit from the settled workforce in the UK.
This exemption from advertising is a big advantage and it is therefore critical that the student/graduate applies from within the UK for Tier 2 leave. If they leave the UK and their Tier 4 visa expires whilst they are overseas, this advantage is lost. Instead, the employer would then need to advertise the role and would only be able to recruit the foreign graduate if no one suitable from the settled workforce applies for the role.
In order to be eligible to switch into Tier 2, the individual must
- Have studied and completed or be studying (whilst holding current Tier 4 leave):
- a UK bachelors or master’s degree;
- a postgraduate certificate in education or professional graduate diploma of education; or
- Have undertaken at least one year of a PhD (whist holding current Tier 4 leave).
A recent welcome change is that applicants can now apply to switch into Tier 2 (General) up to 3 months before their expected completion date for their studies. They no longer have to wait until they have completed their course.
A less welcome change is a new provision introduced in August this year which adds that only those students who were studying at a higher education institution with a track record of compliance can switch into Tier 2. This means that employers and individuals need to be aware that, if the student is studying at a University that has a poor compliance record with the Home Office, this may mean they are unable to switch into Tier 2.
Other immigration categories?
It is always worth scoping out with the individual student/graduate whether there is any other basis for them to remain living and working in the UK, aside from Tier 2 sponsorship. For example, if they are in a relationship with a UK national or someone who holds permanent residency/Indefinite Leave to Remain in the UK there may be other options, such as the spouse or unmarried partner visa.
For the time being, a relationship with a European national may also provide other options to remain in the UK.
The other category that can be extremely useful for Commonwealth nationals is the ancestry route. If the individual is a Commonwealth national and has a grandparent who was born in the UK and they can trace the lineage through birth/marriage certificates they should consider this option.
Hope around the corner? – Re-introduction of the post-study work visa
The Government has recently announced the return of the Post-study work category, which was previously scrapped by the coalition government in 2012.
From next year, foreign nationals graduating from a UK University could qualify for a 2-year post-study work visa to enable them to spend this period working in the UK without sponsorship. This would be a useful bridge for recent graduates to obtain some industry experience before transferring into the Tier 2 sponsored category.
Jackie Penlington