Tier 2 ICT Cooling-Off Period Changes for 2021
As we get closer to the end of 2020, more details of the post-Brexit immigration system are emerging. As a result of the ending of free movement from the EU, widespread changes will be rolled out to the Points Based System, including the current Tier 2 work visa route. The latest policy guidance for the new Points-Based Immigration System was released by the UK’s Home Office on 4 August 2020 and outlines the proposed phased implementation approach. The policy paper explains, “The Immigration Bill continues its passage through Parliament and will provide the legal basis for ending freedom of movement on 31 December. We will confirm the final details for the Points-Based System later this year via guidance for applicants, Immigration Rules, and secondary legislation. This will also illustrate how we are simplifying these Rules. We intend to share draft Immigration Rules with stakeholders shortly to ensure clarity and understanding”. As such, the final details of the new Points-Based System (PBS) are not yet available, but some key points are already established. One of the specific details relates to the cooling-off period for the Intra-company transfer visa.
What is the Intra-Company Transfer (ICT) Visa?
The ICT visa allows members of staff in an organisation outside of the European Economic Area (EEA) to transfer to a subsidiary branch in the UK for the purposes of work. There are two variants of this visa; 1) for long-term staff for roles requiring previous experience of working with the company, and 2) for graduate trainees undertaking trainee programmes for specialist roles (under this route ICT applicants must be a recent graduate with at least three months’ experience with their employer overseas). The maximum length of stay for a long-term ICT visa holder is nine years if the salary being paid is £120,000 or more, otherwise, it is five years and one month.
Will the ICT visa continue under the new 2021 Points-Based System?
Yes, this visa route will continue under the new immigration system from 2021. It is expected that what is currently called the Tier 2 (Intra-Company Transfer) visa will simply become the Intra-Company Transfer visa. The latest policy paper explains, “The route will require applicants to be in roles skilled to RQF6, and subject to a different minimum salary threshold from the main Skilled Worker route. It will not be subject to English language requirements but will be subject to a requirement that the worker has been employed by the sending business for a minimum period prior to the transfer (12 months in the case of intra-company transfers or three months in the case of intra-company graduate trainees)”. It also confirms that the ICT visa will not provide a route to permanent settlement in the UK, but workers will be able to apply to switch to the Skilled Worker route (the new name for the Tier 2 General visa) if they are eligible, which does lead to a settlement.
What is the current ICT visa cooling-off period?
Cooling-off periods are designed to prevent applicants from reaching the maximum amount of time they can stay in the UK and then simply applying for a new visa. The current guidance for the ICT visa states, “You will not be able to extend your stay beyond 5 years (or 9 years for any staff earning £120,000 or more) and you will not be able to re-apply to return to the UK under an Intra-Company Transfer category until 12 months after your last leave as an Intra-Company Transfer expired or 12 months after you left the UK, whichever is sooner, unless you will be paid an annual gross salary of £120,000 or higher or where you were only being sponsored in Tier 2 (as recorded by the Certificate of Sponsorship), for a period of 3 months or less”.
This confirms that after leaving the UK following the expiry of your ICT visa, in most cases you will not be able to apply for a new ICT visa for a period of one year (the sooner of your visa expiry or your departure from the UK). This also clarifies that there are some exceptions that apply; if you will be paid £120,000 or more, or where you only held your Tier 2 visa for three months or less.
What is the new 2021 ICT cooling-off period?
Paragraph 108 of the latest policy paper on the new Points-Based System states the following, “we will also adjust the existing “cooling off” rules as they apply to intra-company transfers to ensure the future system makes more flexible provision for shorter-term assignments. We plan to replace the existing rules with a rule that more simply requires that an overseas intra-company transfer must not hold entry clearance or leave to enter or remain as an intra-company transferee for more than five years in any six-year period, except where they qualify to be granted up to nine years on the basis of their salary”.
The Home Office has said on numerous occasions that it wants to use the refreshing of immigration policy for 2021 as an opportunity to simplify the immigration system. For many years the UK immigration rules have been heavily criticised for being overly complex and inflexible. For this reason, they are now saying that those in the UK on an intra-company transfer visa cannot stay for longer than five years in a six-year period. They do also mention the nine years ICT limitation, hence when the final rules are published, the Home Office will presumably allow those with a sufficient salary to stay for no more than nine years in a ten year period.
The changes to the cooling-off period may appear to be fairly inconsequential, but they will benefit ICT workers coming to the UK for short term assignments. Rather than having a twelve-month cooling-off period even for a relatively short tenure in the UK, those same individuals will be able to work in the country for their employer for a number of smaller periods, and will only reach the cooling-off requirement after five years (or nine years).