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Switching a Tier 4 Visa to Tier 2.
How to convert a UK Tier 4 Visa.
29th September 2017
An applicant, who has or has last been granted entry clearance to, leave to enter, or leave to remain, in the United Kingdom as a Tier 4 (General) Migrant under the Points Based System, can in principle, amongst other routes, apply for leave to remain in the United Kingdom by switching their immigration category to that of a Tier 2 (General) Migrant under the Points Based System.
The applicant needs to satisfy the general conditions below (Paragraph 245HD of the Immigration Rules sets out the precise general conditions to be met):
The applicant must have been sponsored by either:
- a UK Recognised Body (which is in effect higher learning institutions with degree awarding powers, for example, universities)
- a body in receipt of public funding as a higher education institution (which is in effect universities and colleges), from:
- the Department of Employment and Learning in Northern Ireland;
- the Higher Education Funding Council for England;
- the Higher Education Funding Council for Wales; or
- the Scottish Funding Council; or
- an overseas higher education institution to undertake a short-term study abroad programme in the United Kingdom.
The applicant must have completed and passed a:
- UK recognised Bachelor’s degree;
- UK recognised Master’s degree;
- UK Postgraduate Certificate in Education;
- UK Professional Graduate Diploma of Education; or
- Minimum of 12 months study in the UK towards a UK PhD.
The applicant must have completed the above at a UK institution that:
- is a UK recognised body;
- is a UK listed body; or
- holds a Tier 4 sponsor licence.
The applicant must have studied the above course during:
- their last grant of Tier 4 leave; or
- a period of continuous Tier 4 leave which includes their last grant of Tier 4 leave.
The applicant must provide an:
- original degree certificate;
- academic transcript; or
- academic reference on official letter-headed paper of the institution;
which clearly confirms:
- their name;
- the course title/award;
- the course duration (not required in the case of a degree certificate); and
- the date of course completion and pass (or in the case of a degree certificate the date of award (not required in the case of a PhD course)).
The applicant must obtain:
- 50 points for Attributes under Appendix A of the Immigration Rules, which consists of 30 points for the Certificate of Sponsorship, and 20 points for the Appropriate Salary;
- 10 points for English Language under Appendix B of the Immigration Rules; and
- 10 points for Maintenance (Funds) under Appendix C of the Immigration Rules.
Certificate of Sponsorship
In order to be eligible for the award of the requisite 30 points, an employer who wishes to sponsor the applicant must hold a Tier 2 (A-rated) sponsor licence.
Further, the applicant must be sponsored in a job role which is skilled, to at least Regulated Qualifications Framework Level 6 (as set out in Appendix J of the Immigration Rules). They cannot be sponsored in any lower-skilled job role, unless they are sponsored in jobs such as artists, authors, writers and translators, actors, entertainers and presenters, dancers and choreographers, product, clothing and related designers, or in jobs as set out in the shortage occupation list in Appendix K of the Immigration Rules.
Further, as the applicant would be switching from Tier 4 to Tier 2, the employer would not be required to undertake a valid Resident Labour Market Test. This would ordinarily otherwise be the case, as the Tier 2 sponsor would need to advertise the job for a consecutive period of 28 days in two separate medium, to allow the British/settled workforce of the United Kingdom to apply for the job. That is, unless the job is on the shortage occupation list in which case it would be exempt (except for Nurses where a valid Resident Labour Market Test would nevertheless need to be undertaken).
In order to be eligible for the award of the requisite 20 points the employer must either pay the applicant:
- a minimum annual salary of £20,800, or
- the salary for a new entrant for the job title as specified in Appendix J of the Immigration Rules if one has been specified, whichever is higher.
Otherwise the mandatory requirement is for the employer to pay the applicant a minimum annual salary of £30,000.00 or the salary for an experienced worker for the job title as specified in Appendix J of the Immigration Rules, whichever is higher.
Further, if the employer sponsors the applicant in a job role, for example, as a Nurse (SOC Code 2231) then the applicant must be paid a minimum annual salary of £20,800, whilst they are a Pre-Registration Candidate Nurse, otherwise £21,909.00 for a Band 5 Nurse.
The calculation of the salary must be done by the employer on the basis of the source used to determine the minimum appropriate salary i.e. 39, 37.5, 37 or 40 hours a week as set out in Appendix J of the Immigration Rules, and therefore the minimum appropriate salary cannot take account of any salary that they will earn in employment above the relevant permitted hours per week.
In order to be eligible for the award of the requisite 10 points the applicant must be able to prove that they are able to read, listen to, write and speak English at Level B1 or above of the Council of Europe’s Common European Framework for Language Learning.
This requirement will ordinarily have been deemed met by the applicant if they are switching from Tier 4 to Tier 2 and are relying upon a Bachelor’s degree, Master’s degree or PhD completed in English from the United Kingdom (which must be an academic qualification and not a professional or vocational qualification).
Otherwise one of the English language requirements set out in Appendix B of the Immigration Rules would need to be met, for example, by sitting an IELTS SELT (International English Language Testing System Secure English Language Test) and achieving a score of 4.0 or higher in each of the four components of reading, listening, writing and speaking.
In order to be eligible for the award of the requisite 10 points the applicant must be able to prove that the employer as a Tier 2 (A-rated) sponsor certifies on the Certificate of Sponsorship that, should it become necessary, it will maintain and accommodate the applicant up to the end of the first month of employment, provided that the undertaking is not for less than £945.
In the alternative, if the employer is not willing to certify as above, then the applicant must be able to produce original documents (for example, personal bank statements), to prove that they have:
- cash funds (not including shares, bonds, credit cards, pension funds, overdrafts etc.) personally available to them,
- of at least £945,
- in an acceptable financial institution in the United Kingdom (i.e. a bank or building society),
- for a consecutive period of 90 days or more as at the date of application;
- an equivalent amount when converted from the foreign currency to Pound Sterling,
- if the cash funds are held in a financial institution abroad, and
- the closing balance must be no earlier than 31 days as at the date of application.
An applicant can switch immigration categories from a Tier 4 (General) Migrant to a Tier 2 (General) Migrant. However, those intending to switch and make such applications must seek proper legal advice, and ensure that they are fully guided on all of the evidence that is required, and in addition, that the Tier 2 (A-rated) sponsor has complied with their mandatory requirements (as set out in the Tier 2 and 5 Sponsor Guidance).
This document was written by Aston Brooke Solicitors’ Immigration Department. For specific legal advice on your case please contact us on +44 (0)203 475 4321 and a member of our team will be able to assist you.
Disclaimer: this article is for general information purposes only. It does not present a detailed statement of the Law and does not constitute as legal advice. This is a summary only, and legal advice should always be sought on an individual case basis.