Tier 5 of the new points- based system came into force on 27 November 2008. Tier 5 enables young overseas nationals to experience life and culture in the UK and also permits workers to undertake short term or temporary employment in the UK.

Tier 5 replaced the following  immigration categories on 27 November 2008:

• Au pairs
• Domestic workers in Diplomatic Households
• Gap year
• China Graduate Work Experience
• General Agreement on Trade in services (GATS)
• Japan: Youth Exchange Scheme
• MP’s Research Assistants
• Ministers of religion, missionaries and members of religious orders
• Overseas government employees
• Sportspeople
• Training and Work Experience Scheme
• Voluntary workers
• Working holidaymakers

Tier 5 consists of two main categories under the points based system; the Youth Mobility Scheme (YMS) and  Tier 5 (Temporary Workers) which is made up of five sub-categories, as follows:

• Tier 5 Youth Mobility
• Tier 5 Temporary Workers
  • Temporary workers - creative and sporting
  • Temporary workers - charity workers
  • Temporary workers - religious workers
  • Temporary workers - government authorised exchange
  • Temporary workers - international agreement

Tier 5 (Temporary Workers)

The Tier 5 (Temporary Workers) scheme provides individuals the opportunity to come to the UK with a job offer for a specific purpose for temporary/short term employment. The scheme consists of five subcategories to clarify the range of employment available in different industries.

All applicants will be required to have both a sponsor and a valid ‘certificate of sponsorship’ before applying for leave to be employed under this scheme. This certificate of sponsorship is designed to act as a declaration that the applicant is able to take on a particular job and has the intention to do so.

All applicants applying under this scheme will require prior entry clearance, except for  non-visa nationals intending to come to the UK for a period of 3 months or less in the “Creative and Sporting” subcategory.

Each Tier 5 (Temporary Worker) subcategory is explained below as an individual category.

Tier 5 (Temporary Workers) – Creative and Sporting

This category accommodates those who wish to work or perform as sports people, entertainers or creative artists for a maximum period of 12 months. The employment is for short engagements or contracts and is suitable for sports players, coaches, dance artists, artists in music, theatre, film or television etc.

A. Requirements

(i) Sportspeople
Applicants applying as ‘Sportspeople’ will need to be internationally established at the highest level in their industry. Their employment in the UK should also intend to make a ‘significant’ contribution to the development and operation of that particular sport in the UK.

Employers sponsoring applicants under this category will be required to issue a certificate of sponsorship with an endorsement for the applicant from the relevant sports governing body. This endorsement will need to confirm the above criteria and will further need to confirm that the post could not be filled by a suitable resident worker in the UK/EU.

(ii) Creative Worker
Applicants applying as a ‘Creative Worker’ and those included in their entourage involved in dance, theatre, film or television will need to demonstrate that they are attending specific engagements in the UK and do not wish to base themselves in business in the UK.

Employers sponsoring applicants under this category will be required to issue a certificate of sponsorship which guarantees these conditions and that the applicant will comply with the conditions of their visa and leave the UK upon expiry of the visa.

All applicants will need to score a total of 40 points for the above criteria which is detailed in the next section.

B. Points Assessment

Applicants will need to satisfy a points test and maintenance requirement under this scheme. A total score of 40 points is required in order for applicants to successfully submit an application for the Tier 5 (Temporary Workers) scheme.

Points are awarded under the following headings:

(i.) Certificate of Sponsorship – 30 points
To score points under this section, it is mandatory that applicants are in possession of a valid certificate of sponsorship issued by their sponsor.

(ii) Maintenance (Funds) – 10 points
To score points under this section, applicants will need to prove that that they have sufficient funding to support themselves for the duration of their stay in the UK.

The requirement is to demonstrate either/or the following:

• At least £800 of personal savings in applicants’ own bank account for at least 3 months prior to the date of the application (plus £533 for each dependant); OR
• The sponsor can guarantee the applicant’s maintenance on the certificate of sponsorship. (Please note that the sponsor is unable to certify maintenance for any accompanying dependants).

C. Visa Validity and Extension

Applicants successful under the Tier 5 (Temporary Workers) category will be granted Entry Clearance valid for a maximum period of 12 months; or a shorter period if this is specified in the certificate of sponsorship.

‘Creative Workers’ are the only exception to this condition as they are able to apply for an extension for a maximum of 12 months at a time, amounting to a total period of 24 months, provided they remain with the same sponsor.

Creative and Sporting applicants, who have not applied for entry clearance as non-visa nationals and have entered the UK for a period of less than 3 months, cannot apply to extend their leave in the UK.

D. Group sponsorship certificates

Applicants are able to include their entourage when entering the UK using a ‘group’ certificate of sponsorship. The entourage can include people whose work  relates to the work of an entertainer, cultural artist, sportsperson or a dramatic production. Persons included in the entourage should be able to demonstrate their technical and/or specialist skills.

E. Multiple engagements

Applicants who are required to perform/participate in several engagements or performances may need to request their employer to issue a certificate of sponsorship to cover the whole period. The maximum amount of days between each engagement should be no more than a maximum of 14 days.

However if each engagement is sponsored by individual employers, venues or promoters, each of those sponsors are able to issue a certificate of sponsorship for the purpose of covering its own show. The dates on each certificate must not overlap and again there must not be more than 14 days gap between each engagement.

F. Switching

Only a sports or entertainer visitor is entitled to apply to switch into the Tier 5 (Temporary worker) Creative and Sporting subcategory, provided they have a valid certificate of sponsorship issued to them before entering the UK.

No applicants from other Tiers of the points based system are entitled to switch into the Tier 5 (Temporary Worker). In the same way, applicants from Tier 5 (Temporary Worker) cannot switch into other Tiers. The Tier 5 (Temporary Worker) route does not lead to settlement in the UK or offer applicants the opportunity to switch into any other work or study category.

No switching is permitted between the subcategories of Tier 5 (Temporary Worker).

G. Applying for Entry Clearance

Applicants are able to apply for Entry Clearance under the Tier 5 (Temporary Worker) from the following places:

• applicant’s home country; or
• any other country where the applicant is currently in a similar role as a sportsperson or creative artist

H. What other work is allowed under Tier 5 (Temporary Worker) Creative and Sporting

Applicants under this category are able to work on short term contracts; or participate in/ perform at specific engagements relevant to their role and specified in their certificate of sponsorship.

In addition, applicants under this category are able to undertake supplementary employment providing the work is in the same sector, and for no more than 20 hours per week. The work must be at the same level as declared on the certificate of sponsorship and must be outside of normal working hours. The applicant is obliged to continue to work for their original sponsor.

The applicant is not permitted to work in any other employment which fails to satisfy the above criteria.

I. Change of Employment

Applicants who have previously obtained permission to enter or remain in the UK may be able to apply for a “change of employment”. This is on the basis that that the applicant intends to vary their leave in the UK because they have changed employment either within the same organisation or with a new organisation.

The employment will need to be with a licensed sponsor and the applicant is required to obtain a new certificate of sponsorship and again satisfy the all important maintenance requirement.

It is advised to seek professional legal advice if you wish to change your employment whilst in the UK.

J. Transitional Arrangements for those who have already applied under the schemes to be replaced by Tier 5

Applicants who are already in the UK or who have already obtained a valid entry clearance for the immigration schemes abolished last year will be able to enter and re-enter the UK as per the conditions on their visa.

Applicants who have been granted entry clearance and their current leave to remain is for six months or more will be able to leave and re-enter the UK during their period of leave.

Applicants who have not been granted entry clearance and their current leave is for six months or less, are not entitled to re-enter the UK under any of the abolished categories - unless they are currently a work permit holder; or they have been granted entry clearance for their current leave.

Applicants who have a multiple entry work permit are not entitled to apply under these transitional arrangements. They are required to return to their legal country of residence and make a fresh application.

Any applicant who makes an application under any of the abolished categories on or after 27 November 2008 will be rejected.

There are no transitional arrangements for the following categories, as no extensions are allowed under these schemes and they do not lead to settlement in the UK:

• the working holidaymaker scheme;
• the Japan: Youth Exchange scheme;
• gap year entrants working in United Kingdom schools concession.

K. Dependants of Tier 5 (Temporary Workers)

Dependants of those applying to enter as Tier 5 (Temporary Workers) migrants will be able to accompany the main applicant to the UK as long as there is evidence of at least £533 in available funds to maintain each dependant.

L. Administrative Review (Entry Clearance applications)

Applicants who have their applications refused under the points-based system are entitled to have the decision reviewed free of charge.

Individuals who wish to exercise their right for an Administrative Review will have to make this request within 28 days of the date of receipt of the refusal notice. The applicant is not entitled to send any additional documents or  evidence with the review request. Finally, applicants will only be entitled to request ONE review request per refusal decision.

M. Right of Appeal

Applicants who apply under this scheme will only have a limited right of appeal. We therefore advise that applicants seek legal advice on the procedure for appealing.

N. What services we can offer?

• We can advise on the procedure of making a Tier 5 (Temporary Workers) application in line with the sponsorship certificate.
• We can assess the job and the applicant’s credentials and advise on the likelihood of getting the applicant sponsored under Tier5
• We can advise the applicant on making their leave to remain / entry clearance applications in line with the sponsorship certificate
• We can advise the applicant on the procedure involved for including family on dependant visas. We can advise the applicants on the evidence required for entry clearance applications of this sort