We recently wrote (“Home Office Discretion and Chess Players”) about a young chess-playing prodigy whose father was allowed, outside the rules, to switch in the UK from a Tier 2 Intra-Company Transfer visa to a Tier 2 General visa. His father works in the UK for Tata Group, the well-known Indian conglomerate, which has offices in many countries around the world.
The Tier 2 Intra-Company Transfer visa (“Tier 2 ICT”) is designed for such international companies which want to transfer skilled staff from a branch in one country to a branch in the UK. Tier 2 ICT migrants consist of “long-term staff” and “graduate trainees”. In a general way, this route is less onerous than the Tier 2 General route (which is the “standard” Tier 2 scheme), but it contains some important restrictions.
As we discovered in the recent chess-playing case, Tier 2 ICT visa holders cannot normally switch in the UK to Tier 2 General. And whereas previously Tier 2 ICT visa holders could, like other working visa holders such as Tier 2 General migrants, eventually acquire settlement, this is no longer the case. The Home Office decided some years ago to phase this out, and so whilst there are migrants who have acquired settlement in this way it is no longer possible in new cases.
Nonetheless it is not true to say that Tier 2 ICT migrants cannot in any circumstances stay on in the UK after their visa has expired. In some cases they can switch to other visas but, like most things to do with UK immigration, a thorough understanding of the relevant rules is required. It might be possible, for example, to switch in-country to a Tier 1 Entrepreneur or Tier 1 Investor visa, and thus open up the possibility of acquiring settlement through a different route.
And although Tier 2 ICT leave is time-limited it can in some cases last for quite a while. It can last for up to nine years – but only for those earning at least £120,000 per year. (The figure of nine years is interesting: if after nine years the migrant could switch to some other visa category for just one year they might after that be able to apply for settlement based on ten years’ continuous leave.)
And for Tier 2 ICT there are no English language requirements (unlike for Tier 2 General migrants) and no resident labour market test: ie the employer does not have to advertise the position to ensure that the position could not be filled by a resident worker. This is intuitive: an ICT migrant may have in-depth knowledge of the way the company operates and its products or services which an outsider could not be expected to have.
And ICT migrants, although they need to be sponsored by their employer like other Tier 2 migrants, are not subject to the monthly limit that Tier 2 General migrants are. This gives relative freedom to international companies to sponsor those skilled employees they want.
And a word needs to be said about the Tier 2 “cooling-off” rules. Cooling-off is something that we might associate with a situation, for example, when somebody in a fit of wild enthusiasm (or possibly drunk) agrees to buy something, but they are given a cooling-off period so they have an opportunity to change their mind. With Tier 2 emotions may not run so high in quite the same way, and the term is something of a misnomer.
Anyway, the way it works is this. A Tier 2 ICT visa might be granted for, say, five years, after which the migrant might return home. But their employer might want them to return to the UK as a Tier 2 ICT person as soon as possible. There are some exceptions but this is not always easy, because the migrant may come up against a 12-month “cooling-off” period, such that they cannot return to the UK in that capacity for that period. But again, a salary of £120,000 or more is helpful, and it enables to migrant to avoid the rule and to come back to the UK in less than 12 months.
The moral of the Tier 2 ICT story seems to be that the Home Office have calibrated the rules so that ICT migrants now find it relatively difficult to acquire settlement. But if they are earning at least £120,000 things may be a bit easier. The rules about this are quite complicated, and if your situation is engaged by them you are advised to consult a good lawyer.