Paragraph 245HD of the Immigration Rules HC 395 (as amended) sets out the Tier 2 cooling off period rules for individuals who are in the UK under Tier 2 (ICT) and wish to switch into Tier 2 (General).
A new higher salary threshold (see below) was introduced on the 6 April 2014 and applicants who are thinking of securing leave under Tier 2 (General) and who need to rely on the higher salary threshold to avoid the 12 months Tier 2 cooling off period should take note of this change.
Those who entered the UK under Tier 2 (ICT) before 6 April 2011
At present the rules state that in order to switch into Tier 2 (General) from inside the UK an applicant who has or was last granted leave under Tier 2 (ICT) must:
- have previously had leave under Tier 2 (ICT) pursuant to the Rules in place before 6 April 2010 or in the Established Staff sub-category of Tier 2 (ICT) under the Rules in place before 6 April 2011, and
- not have been granted entry clearance in this or any other route since the grant of leave referred to above; and
- not be applying to work for the same sponsor as sponsored him when he was last granted leave.
If the individual has continued to reside lawfully in the UK since they arrived under Tier 2 (ICT), and providing any applications they have made to extend their stay under Tier 2 (ICT) have been made from inside the UK, they will not be affected by the 12 months cooling off period if they subsequently decide to secure leave under Tier 2 (General). Under the rules that are currently in place, they will be able to secure Tier 2 (General) leave and take up a job with a a new employer providing the other requirements of Tier 2 (General) are met (valid COS, RLMT, skills threshold, salary level, etc).
Those who entered the UK under Tier 2 (ICT) on or after 6 April 2011
Individuals who entered the UK under Tier 2 (ICT) on or after 6 April 2011, or those who entered before then but have since made an application for entry clearance from abroad, will have to leave the UK for 12 months (often referred to as the Tier 2 cooling off period) before they can secure permission to work under Tier 2 (General).
The higher rate salary threshold exception
The only exception to this rule is if the individual has been offered a new role and will be paid a salary at the higher rate threshold.
Those who secured leave under Tier 2 (ICT) after 6 April 2011, or who came to the UK before then under Tier 2 (ICT) but have since made an application for entry clearance from abroad, cannot switch into Tier 2 (General) from inside the UK even if they are being paid a salary at the higher rate threshold. However, they can leave the UK and apply immediately for entry clearance to return under Tier 2 (General) thereby avoiding the cooling off period.
Further advice
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