Brexit will no doubt have a great impact on the business immigration sector.
The Migration Advisory Committee (MAC)’s long-awaited report on the effect of European migration to the UK has been published last month.
According to reports, the MAC does not see ‘compelling reasons’ to give EU citizens any preferential treatment over non-EU citizens. Recommendations are made largely to loosen the Tier 2 system itself and have a more open policy like in countries such as Canada.
Below is a summary of the key recommendations for work migration post-Brexit
1. Making it easier for higher-skilled workers to migrate to the UK than lower-skilled workers.
2. No preference for EU citizens
3. Abolish the cap on the number of migrants under Tier 2 (General).
4. Tier 2 (General) to be open to all jobs at RQF3 and above.
5. Maintain existing salary thresholds for all migrants in Tier 2.
6. Retain but review the Immigration Skills Charge.
7. Consider abolition of the Resident Labour Market Test. If not abolished, extend the numbers of migrants who are exempt through lowering the salary required for exemption.
However, if all foreign migrants are bought into the same system then employers will need to become extra vigilant as risk of civil penalties faced by employers will increase significantly.
Hiring costs will increase and if medium skilled jobs are also included as more businesses will require to get on the sponsor licence register meaning increased administrative burden on organisations and a significant effect on businesses which have previously not had any engagement with the wonderful immigration system.
Sponsors should be aware that right to work checks may be necessary if a Tier 2 visa extension is applied close to the expiry date.
Tier 2 sponsored staff should usually apply to extend their visas two months before their current visa expires, which in most cases, means they will receive their new visa before, or just after, the previous expiry date.
However, if a last-minute application is submitted by post, and a decision is not made within 28 days of the expiry date, the employer must conduct follow-up right-to-work checks.
In recent months UK Visas has strengthened its team of OISC accredited advisers – Kevin Carlin achieved OISC accreditation in May 2017 and Garima Arora, who is qualified to the equivalent of OISCLevel 3, joined us in January, so we now have five OISC advisers on the team.
We have also settled in to our new offices close by Horsham station and this provides us with a larger and lighter environment in which to work.
One reason for these changes has been to enable one of our directors, and senior case worker, Sarah Bryant to significantly reduce her working hours. Garima has successfully taken over most of her workload now, although Sarah will be available to cover any particularly busy periods, sickness or holidays.
Kevin Carlin has been promoted to Client Services Manager and he will now oversee the incoming workload as well as take on responsibility for issuing CoS and sponsor licence admin support. With this last point in mind, and as mentioned in our newsletter last year, we will shortly be adding him as a Level 1 user on all clients’ SMS. AO’s will receive notification as and when Kevin is added on their SMS.
The Home Office have just announced that their charges will rise by, typically, 4% from 6 April 2018.
Visit visas, Tiers 1, 2 and 4 visas, Spouse/partner visas, ILR and British Citizenship all increase by 4%.
There are a very few exceptions to this, such as EEA residence cards and replacement BRP cards which remain unchanged, and the priority service for out-of-country non-settlement (eg Tier 2) goes up 15% to £212 from £184.
So, a three year Tier 2 visa in-country charge increases to £704 by post, £1181 for the 10 day service and £1314 for the same day service. Out-of-country applications will now cost £610 for the standard service and £822 for the fast-track service.
ILR same day service charge increases to £2999 (postal application is £2389).
Suggestions that the Health Surcharge may double have yet to be confirmed (or denied).
The UK and EU have agreed on a “large part” of the agreement that will lead to the “orderly withdrawal” of the UK.
The transitional period will last from Brexit day on 29 March 2019 to 31 December 2020 and EU citizens arriving in the UK between these two dates will enjoy the same rights and guarantees as those who arrive before Brexit. The same will apply to UK expats on the continent.
As a part of this process, the Home Office need to process huge numbers of people very quickly, from a legal status based on EU free movement to one based on the new post-Brexit category of ‘settled status’. And EU immigrants want to have a simple, hassle-free system for retaining their right to be in the UK.
With 3.7 million EU citizens and tens of thousands of non-EU partners. The Home Office are going to have to process around 5,000 people a day, every day, for two years.
To achieve this the Home Office are developing an app. which the user should find incredibly simple – just three questions: The first will ask if you are an EU national, the second will ask if you live in the UK and the third will ask if you have a criminal record.
Usually visa forms demand that the applicant supply the proof of their rights to stay, but here the work is done by the government.
This system is designed to give settled status to any EU citizen who has been in the UK for five years. Negotiations with the EU are still ongoing, but chances are that that five year period can start at any stage, up to the last day of transition on December 31st 2020. If someone applies before they’ve been here five years, they will be given ‘temporary settled status’ – although the Home Office intends to change this name to make it sound less tenuous. This then transforms into ‘settled status’ once the five years are up.
Croatians will have unrestricted access to the UK jobs market from the end of June, the Home Office has confirmed.
Currently Croatian nationals seeking employment must be sponsored by their employer before they can apply for an Accession Worker Card (aka Purple Card) which usually requires a resident test to be completed prior to a CoS being issued.
From the end of June however, their rights to work in Britain will fall in line with other EU citizens.
The Home Office could have extended the restricted access by a further two years but, with fewer than 10,000 Croatians living in the UK, they have conceded that there is not enough evidence to extend the controls any further.
Demand for Restricted CoS has been far outstripping availability since December 2017.
Each month the Home Office sponsor panel meets on 11th to allocate restricted CoS (needed for out-of-country Tier 2 applicants). The monthly availability reduces throughout the year, from 2200 in April down to just 1000 in March.
In December 2017 the demand exceeded supply for the first time in three years, but to such an extent that only those earning in excess of £55,000 p.a. were successful. In January and February, the situation was not much better and in March it was worse again.
Fortunately, April signals the start of a new CoS year so the monthly allocation should go back up to at least 2200. This may still not be enough for those on lower salaries who may have to try yet again in May. Very frustrating for all concerned.
The Home Office is planning to increase passport fees this year, with postal costing more than online applications.
Currently, a standard adult passport or renewal costs £72.50 regardless of how the application is made.
The fee will rise to £75.50 for online applications and £85 for postal applications.
Charges for children’s passports will go up from £46 currently to £49 online and £58.50 in the post.
The changes are underpinned by new fee-setting powers given to HM Passport Office under the Immigration Act 2016 to give it the resources it needs to process six million applications a year.
The changes have been earmarked to come into effect in just a few weeks.
If they are signed off by Parliament, they will come into force on March 27.
The Home Office is conscious of the changing nature of employment and remunerations associated with these changes. However, the new rate of pay must continue to meet the appropriate rate requirements. The current minimum gross salary (including any guaranteed bonuses and/or permitted allowances) that a Tier 2 (General) migrant must receive is £30,000 per year* or the appropriate rate of pay for the job as stated in the codes of practice. The minimum Intra-Company Transfer (ICT) salary thresholds are £41,500 for long term staff and £23,000 for graduate trainees. If a sponsor seeks to pay a sponsored migrant below these rates, they will forfeit the right to continue to sponsor them.
The Home Office has modified its guidance to reflect changes and add in exceptions to the rules. These exceptions being:
• Where a migrant is required to undertake professional examinations to assess whether their skills meet UK standards before starting work. For example, where the passing of a Professional and Linguistic Assessments Board (PLAB) examination is a regulatory requirement of the role;
• Where the reduction is due to the migrant taking a period of maternity leave, paternity leave, shared parental leave or adoption leave;
• When a migrant is on long-term sick leave for more than one continuous calendar month;
• Where a doctor is taking (up to six months) authorised unpaid leave to assist in the Ebola crisis; and
• Where the salary paid to a Tier 2 (ICT) migrant has been reduced due to them not being physically present in the UK.
Therefore, if a sponsored migrant wishes to take a long period of unpaid leave, for example a sabbatical, the employer must cease their sponsorship of the migrant and report the change in circumstances to the Home Office via the Sponsor Management System (SMS).
Another COS lottery time is approaching, and tensions are high!
Last month, for the third month in a row, and for only the fourth time since a quota was introduced in April 2011, the cap was again hit. This means that many highly skilled workers from outside the EU were unable to take up their posts.
With even less COS available this month, it still looks like it is going to be another frustrating month for the employment sector. at least until the number of applications starts to fall away (if they can hold out that long) or there is a change in the government’s approach.
Recent reports have suggested that the government wishes to the double, the already controversial, Immigration Health Surcharge. The main rate will go from £200 a year to £400 a year, with students and those on the Youth Mobility Scheme paying £300 (up from £150).
Once this increase takes effect, the IHS cost to a family of four securing the right to reside in the UK for 5 years will amount to £8,000.
Here is to hoping that those wishing to relocate are given a few weeks’ notice so that they can start saving up!
Tier 2 Migrants will no longer require to have been continuously employed throughout the 5-year qualifying period to be eligible for settlement.
Previously, the rules stated only breaks of employment less than 60 days could be disregarded.
However, since the Home Office is notoriously slow in issuing curtailment notifications, this may lead to some Tier 2 holders gaining additional time to change employment within the UK whilst still qualifying for indefinite leave to remain.
This will definitely bring a sigh of relief to many.
Another subtle but big change introduced has been how continuous residence will be counted over the 5 years period when applying for Indefinite leave to remain (‘ILR’).
Before the changes, the 180-day absences were calculated in fixed blocks. However, absences are now to be counted on a rolling basis thus an application for ILR could be refused if at any point over the five years the 180-day limit is exceeded in any 12-month period.
Paragraph 245AAA(a) now states:
“(a) References to a “continuous period” “lawfully in the UK” means, subject to paragraph (e), residence in the UK for an unbroken period with valid leave, and for these purposes a period shall be considered unbroken where:
(i) the applicant has not been absent from the UK for more than 180 days during any 12-month period in the continuous period, except that any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s) and that their Sponsor, if there was one, agreed to the absence(s) for that purpose;”.
One is going to need more than just a simple table on Excel to tackle this change!
11th January 2018, saw many changes introduced to the Immigration Rules.
A change which will have huge impact on future applications for entry clearance, as well as extension applications by those who are already in the UK and need to extend their leave after 11 January 2018 is that the PBS dependant cannot be absent from the UK for more than 180 days during any 12-month continuous period.
The following has been inserted into paragraph 319E of the Immigration Rules in relation to PBS dependants:
(d) not have been absent from the UK for more than 180 days during any 12-month period in the continuous period, except that:
(1) any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas shall not count towards the 180 days, if the applicant provides evidence that this was the purpose of the absence(s), and
(2) any absence from the UK during periods of leave granted under the Rules in place before 11 January 2018 shall not count towards the 180 days.
The amendment will not impact residence for those who have already extended and can obtain ILR without extending again, and will not change things immediately for those who have already been granted entry clearance until they come to extend.
Being a sponsor – A privilege that bites. High Court confirms companies to be held at strict compliance under Tier 2
In the recent case of R (Sri Prathinik Consulting Limited) v Secretary of State for the Home Department  EWHC 3204 (Admin), the Hight Court dismissed a company Judicial Review against revocation of licence reinforcing the principle that sponsor licences are a privilege, not be taken lightly.
The case involved a IT company that had failed to keep the required evidence relating to RMLT as specified and assigned the COS 6 months after the RMLT was concluded.
The Court stated that “[s]ponsors have advantages and cannot complain if they are required to comply with relevant Guidance”
It is all too easy to lose track of the mind field of duties one needs to adhere to. In the view of the above, it has become as important as ever to make sure you as a company are fulfilling these duties. In the view of the Home Office and High Court, you as a sponsor has opted into taking on this level of responsibility so should be held accountable. There will be no sympathy.
There are been some changes in the Tier 2 sponsor guidance from 11th January 2018, a summary of few listed below:
• B-rated sponsors can no longer add branches to their licences or if you are downgraded to a B- rated sponsor.
• Those directly employed by sponsors can no longer certify copies of documents.
• It is now a specific sponsor duty to report if the size of the business changes from small to large or vice versa.
• It is recommended that licences are renewed early, or at least one month before the expiry date. If applied in good time, there will chance to apply again if application is rejected. If licence has expired when decision to reject or refuse your application is made, there will not be a chance to make another application to renew a licence.
• The start date given on the CoS must be the date that the migrant is expected to start working for you at the time the CoS is assigned. If such start date for a Tier 2 (General) migrant is subsequently changed after leave has been granted, it must be within 28 days from the later of:
• the date on which their entry clearance or leave to remain is granted
• the start date on their CoS (taking into account any changes to start date properly reported before leave is granted)
• If a sponsor fails to provide any documents within a specified timeframe, action will be taken
We have noticed recently that the UKVI are becoming increasingly vigilant and demanding when assessing resident tests.
UK Visas manage in excess of 100 resident labour market tests each year, both for changes of employment and out-of-country recruits. As part of these tests we have to provide reasons why any EEA applicants are not suitable for the role and clients need to keep records of these tests on file in readiness for a sponsor licence compliance visit.
Whilst Tier 2 guidance states sponsors should keep copies of CVs for any shortlisted applicants (along with interview notes etc) compliance officers are now demanding to see every CV, regardless of whether the candidate was shortlisted. We hold these in file here for every test conducted, so if required we can provide these to you, but in future we may decide to forward every applicant to clients on conclusion of every test – apologies for yet more filing!
We have also noticed for the first time that, when Tier 2 limits request additional information about restricted CoS requests, they are now asking to see every single application received as part of their consideration process.
In future, when running these tests, we may therefore have to ask clients to look at a few more cv’s than previously to help us check suitability prior to reaching out for further information from the applicants themselves.
UKVI have also slowed down their consideration process for restricted CoS in the last month or so. Whereas 80% of requests used to be allocated on the day the panel met (usually 11th of each month) we are now having to wait up to 10 days for the allocations to be approved. This December for example, the first one (of eight requests) was allocated two days late, on 13th, whilst we are still waiting at the time of writing for all the others. And no reasons are provided for the delay, and there is no way to expedite the requests so we just have to wait.
Sponsors that are not on automatic annual renewal will receive monthly e-mails asking sponsors to submit their requests for a CoS allocation.
Please feel free to ignore these!
Annual CoS allocations are now so limited that you can only request these if you can prove you will definitely need them. This means providing the name, nationality and DoB of each applicant and, if they are new recruits, full details of the role, salary and resident test details if relevant.
UK Visas will go through every client’s list of sponsored workers over the next few weeks and request CoS for any whose visas expire between April 2018 and April 2019.
So, when you get another reminder at the beginning of February, and again in March, please do not forward them to us, simply delete them.
For those clients on Auto Renewal (about half of you) we have to wait until 5 April and see what you have been allocated and then, if necessary, request extra CoS for you.
The Home Office has just announced, at 11.13 on Tuesday 4th April new increased charges for 2017/18.
Usually the Home Office provide a month or so’s notice of any intended visa fee increases to enable feedback prior to Parliamentary approval. But not this year!
Nearly all increases are small – see the link below for full details – although ILR has seen a swingeing £512 increase to £2887 for the same day service.
Out-of-country Tier 2 visas increase just £12, to £587, while in-country applications go up £13 to £677.
The 10 day priority service goes up from £375 to £459 and the same day service goes up £90 to £590.
For full details of all of the new HO charges, go to:
Although a relatively small constituent of visa costs these days, we are pleased to advise clients that UK Visas own fees will remain the same as last year, with the one exception of EEA family permit and permanent residence visas for self-employed applicants.
A raft of changes has been made to the ICT category over the past 12 months.
The idea that the Tier 2 Intra-Company Transfer category enables international companies to transfer staff into the UK easily and inexpensively – on the basis that their stay here will be temporary – has changed somewhat and is certainly now a lot more expensive:
The Tier 2 (ICT) Short-term category has now closed so there are now only two sub-categories remaining: ICT Long-Term and ICT Graduate Trainee
The rules for Graduate Trainees remains the same, but the requirements for ICT long-term have changed significantly, so that:
• The 12 months working requirement is lifted for those paid £73,900 p.a. or above.
• 9 years maximum stay now available to those earning £120,000 p.a. or above (was £155,300 p.a.)
• Accommodation cannot be more than 30% of the gross salary and other allowances combined (as previously).
• The new Immigration Skills Charge WILL apply to ICT long-term main applicants whose CoS are issued from 6 April 2017.
• The Health Surcharge will also apply to ICT main applicants and dependants applying from 6 April 2017.