If a migrant has been sponsored in any Tier 2 category, or in the Religious Workers subcategory or Charity Workers subcategory of Tier 5 (Temporary Worker), and their leave has ended or expired, they must wait 12 months before applying again in the relevant category. This restriction is called the ‘cooling-off period’.
The cooling-off period applies where:
- the migrant has, in the 12 months immediately preceding the current application, had entry clearance or leave to remain in a category referred to above (Tier 2 or Tier 5 Religious Workers, Tier 5 Charity Workers) and that leave has since expired.
- in the case of a Tier 2 migrant, the Certificate of Sponsorship (CoS) on which the leave is based, was issued for more than 3 months, and
- the migrant is either: applying for entry clearance from outside the UK, or
- in the UK and had an earlier period of Tier 2 leave, but then changed (‘switched’) into a different immigration category and now wishes to apply again under Tier 2.
During the cooling-off period:
- a migrant who was previously sponsored in any Tier 2 category cannot be granted any further entry clearance in any Tier 2 category, or apply to switch into Tier 2 (General), Tier 2 (Minister of Religion), or Tier 2 (Sportsperson)
- a migrant who was previously sponsored in either the Charity Workers subcategory or Religious Workers subcategory of Tier 5 (Temporary Worker) cannot be granted any further entry clearance in either of those subcategories.
- Where the migrant left the UK before their last period of leave in a relevant category expired, the cooling-off period can start earlier than the date their leave expired, but only if the migrant can provide evidence of them having not been in the UK with leave in a relevant category for a period before that date. Evidence may include, but is not limited to:
- travel tickets or boarding card stubs, but only if the migrant, or the migrant’s last sponsor also sent an SMS report at the time, confirming their employment in the UK had ended
- exit or entry stamps in the migrant’s passport confirming they were not in the UK
- a letter from the migrant’s overseas employer confirming the date they started work overseas, after returning from the UK
- other evidence that shows the migrant was not in the UK
Where evidence is produced and accepted, the Home Office works out the cooling-off period to start from the earliest date supported by the evidence.
The Tier 2 cooling-off period does not apply where the migrant:
- is in the UK and applying for an extension to their existing leave
- is in the UK and is making a change of employment application
- is applying as a high earner – someone whose gross salary package accepted for a Tier 2 (General) application is £159,600 or higher, or £120,000 or higher for a Tier 2 (ICT) application
- is applying under the Tier 2 (ICT) Long-term Staff subcategory and their last grant of Tier 2 leave was in one of the following intra-company transfer categories:
- Skills Transfer
- Graduate Trainee
- Short-term Staff
- was only in the UK as a Tier 2 migrant during the last 12 months for a short period(s) with a CoS which was assigned for 3 months or less. This could be where a migrant:
- was assigned a CoS of 3 months or less in the preceding 12-month period, and had no other Tier 2 leave during that period, the cooling-off period will not apply
- has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling-off period will not apply. However, please note that the Home Office intention is that this waiver permits only short-term periods of leave in the UK. If employers intend to sponsor a migrant in the UK for longer than 3 months, they should assign the CoS under the appropriate subcategory.
- If sponsor assigned a CoS of 6 months in length but then notified the Home Office that the migrant finished working for them in the UK after 2 months, the cooling- off period will apply (as the CoS was assigned for more than 3 months).
The note reflects legal position and is for general information purposes only and does not aim to be comprehensive or to provide legal advice. We accept no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Carter Lemon Camerons immigration team. The specialist team at Carter Lemon Camerons Solicitors can assist you with all immigration and business-related matters. Our years of expertise in these areas mean that we can provide tailored solutions for you. For more details, please contact our immigration team at immigration@cartercamerons.com or +44 (0)20 7406 1000.
