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RCoS applications made by 5 October can invoke the new Shortage Occupation List

RCoS applications made by 5 October can invoke the new Shortage Occupation List

The Immigration Rules are due to change on 6 October 2019, as heralded by statement of changes HC 2631. One particularly notable change will be the amendment of the Shortage Occupation List, with many roles being added to the list and some removed.

One advantage of a role being on the Shortage Occupation List is that no Resident Labour Market Test is required. Generally, if an employer wants to sponsor a non-European worker for a Tier 2 work visa, they must first advertise the vacancy and demonstrate that there were no suitable settled workers. Roles on the shortage list do not come with this requirement, significantly lessening the administrative burden for sponsors.

Another big advantage of a role being on the list is to do with ‘Restricted Certificates of Sponsorship’ (RCoS). With some exceptions, an RCoS is required if an employer wants to sponsor a worker who requires entry clearance and is coming from abroad (or a dependent of a Tier 4 migrant who requires leave to remain and is switching to Tier 2). There is a monthly quota for RCoS, and a sponsor needs to submit their application by the 5th of each month to be considered in that month’s allocation. Readers may recall that in the recent past the monthly limits have been exceeded, leading to a work visa ‘drought’. Roles on the shortage list get a boost in the scoring system used to award RCoS — again making it better for employers to have the role being recruited for included on the list.

The shortage list is to expand on 6 October. Sponsors have to make their October RCoS applications by the 5th of October with a decision normally around the 12th. So they would be applying before the rules changed, but the application would be decided after the change. Not really a big deal, I thought, until I read a post on Carter Thomas’s site:

The Home Office has written to us today stating that: “The Restricted CoS team have confirmed that applications made before 6th October (i.e. every application for the October panel) will be subject to the current Immigration Rules, including the Shortage Occupation List. The November panel would be subject to the new Rules”.

The Home Office position was clearly wrong, and I took to Twitter to say why it was wrong. Carter Thomas agreed and we both challenged the department about it. I’ve now had an email from the Business Helpdesk confirming that RCoS applications will be processed according to the rules in force at the time of decision.

A sponsor can therefore apply for a role which they know will be on the shortage list from 6 October, even though it isn’t when they actually apply. They do not have to wait until November to rely on the new list. So all’s well that ends well.

Darren Stevenson

Darren Stevenson is a solicitor at McGill and Co.. Prior to joining the firm in 2008, Darren spent 6 years working at the Home Office with what was then the UK Border Agency, including representing the Secretary of State at tribunal hearings. Darren has extensive experience in all areas of UK immigration law with particular expertise in navigating difficult and technically complex areas, including the Points Based System, EC law and British nationality law.

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