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.
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.
A number of small changes to Tier 2 will be introduced in the Autumn as part of the UKVI’s response to the MAC Report late last year.
Here is a brief summary of the main points likely to affect our clients:
• The minimum salary threshold for Tier 2 (General) “experienced workers” goes up to £25,000 in October and to £30,000 p.a. next April 2017. In reality most NQF Level 6 roles have a minimum salary requirement above £30k anyway.
• The threshold for Tier 2 (ICT) short-term goes up from £24,800 p.a. to £30,000 p.a. prior to the sub-category being closed in April 2017.
• The threshold for Tier 2 (ICT) Graduate Trainee goes down from £24,800 p.a. to £23,000 p.a.
• The Tier 2 (ICT) Skills transfer sub-category will be closed.
• Tier 2 (ICT) applicants will become liable for the Immigration Health Surcharge
UK Visas has set up a special arrangement with UK NARIC to ensure a speedy turnaround of the Statement of Comparability and English Language Assessment.
Nationals from non-English speaking countries can no longer use the Points Calculator to show they have a degree that was taught in English, Instead they must submit their degree certificate, Transcript and MOI letter from their University to UK NARIC who will examine these and, if acceptable, issue a Statement of Comparability and English Language Assessment.
Even those in English-speaking countries, other than the UK, must still provide a Statement of Comparability to show their degree is comparable to a UK degree.
Our fee of £175 + VAT includes the £125 NARIC fee and approximately £10 for the delivery charges. The whole process takes about 10 working days.
By comparison a typical English test, in India for example, costs about £170 and may take four weeks or more to book.
It is essential that sponsors advise us if their circumstances change.
I know I sound like a broken recording, but it is incredible to me that some 20% of sponsors needing to renew their licence in the past six months have had major changes that the UKVI have not been informed about.
Some companies have been acquired, others changed their names and yet others have moved their offices or the Authorising Officers have left or gone on maternity leave without appointing a replacement.
Can all sponsors please note that, if the UKVI decide to make a compliance visit, they are not obliged to advise the sponsor of this in advance, so they may well turn up at the wrong address, or find that the AO is not present or the company name has changed, any one of which may be reason for the licence to be suspended or downgraded to a B rating.
Either of these would have huge implications on your organisation, so please, please, ensure we are advised if any of the above changes happen in your organisation (or indeed if you acquire a company) so we can ensure UKVI are kept informed.
Out-of-time applicants can no longer apply up to 28 days after the expiry date on their visa.
Under current rules applicants who, for whatever reason such as an innocent mistake, find themselves applying after their current leave has expired, have had their cases considered as long as their applications were submitted within 28 days of the expiry date.
Now, however, the government believe this sends out a message which is “inconsistent with the need to ensure compliance with immigration rules”, and so this “allowance” has been abolished.
Instead, out-of-time applications will only be considered if the applicant can show a good reason, beyond their control, why an in time application could not be made AND the application is made within 14 days of the expiry of leave.
The UKVI have been taking an increasing length of time to allocate unrestricted CoS over the past few months – here’s why!
Since April 2016 getting an unrestricted CoS allocated to sponsors has become increasingly difficult, requiring a comprehensive representation as to why the CoS is required, but at least they were allocated within a few days.
However, as many sponsors will know to their fury and frustration, the UKVI have recently been taking 6-8 weeks, and sometimes longer, to deal with unrestricted CoS requests.
Now, out of the blue, they have announced a Tier 2 and 5 priority change of circumstance service which allows A rated sponsors to get their CoS allocated within five working days. This same service also applies to sponsors wishing to add a Level 1 user or replace an authoring officer.
However the service comes at a cost: £200 for each individual CofC request. And currently it is limited to 20 requests per day – for the whole country.
Our first experience was traumatic to say the least – We started dialling at 09.00 sharp but it took over three hours of non-stop dialling to get through to the premium service number in order to pay the £200. We were number 18!
But then, at least, the CoS was allocated within a couple of hours – so it can be done easily enough Yet another example of the system gathering extra revenue.
On 24 November 2016 the following changes will come into effect.
• The salary threshold for Tier 2 (ICT) short-term applicants has been increased to £30,000 p.a. Please note that this sub-category will close in April 2017.
• The salary threshold for Tier 2 (ICT) Graduate Trainee goes down to £23,000 p.a.
• The Tier 2 (ICT) Skills transfer sub-category has now closed.
In March 2016 the MAC Report recommended that the Immigration Health Surcharge should be rolled out to Tier 2 (ICT) applicants this autumn, but as far as we can see no actual change has been announced as yet, so we are hopeful that this recommendation has been withdrawn.
On 24 November 2016 the following changes will come into effect.
• The salary threshold for experienced workers (ie: those aged 26 or more, or anyone applying for a period of more than three years) has been increased to 25,000 p.a. except for a few specialist roles such as nurses, medical radiographers, paramedics and secondary school teachers in certain subjects.
• The salary must also comply with the relevant SOC Code which is usually more than £25k anyway.
• Those extending their Tier 2 (General) visas between now and next April 5th, are excused this requirement, but from that date, the limit increases further to £30,000 p.a. or the SOC amount, whichever is the higher.
• Applicants sponsored in graduate training programmes can now change occupation – ie SOC Code – within the programme without the need for a resident test and new application.
• Nurses continue to be a shortage occupation but now a resident labour market test must be carried out before a CoS can be issued.