As usual, there have been a raft of changes over the past few months in UK immigration and we highlight the key changes below. There are also numerous changes on the horizon that will have a bearing on your ongoing recruitment campaigns. Please do not hesitate to contact us with questions or to discuss the topics in greater detail.
Changes Thus Far
Tier 1 (Exceptional Talent) and Tech City UK (Tech Nation)
The Tier 1 (Exceptional Talent) route is for exceptionally talented individuals in the fields of science, humanities, engineering, the arts and digital technology to enrich the UK's knowledge economy and cultural life. In November 2015, Tech City UK (Tech Nation) and the Home Office announced that new qualifying criteria has been added to Tech City UK’s Tier 1 (Exceptional Talent) endorsement standards.
For applicants to succeed in the digital technology category, they must obtain an endorsement from Tech City UK. It is mandatory for a candidate to have either a proven track record of advancement in the digital technology sector or to have contributed to the development of the sector from additional work undertaken outside their primary role.
This category has been under-utilised and the changes were aimed at ensuring that the UK is able to attract top talent from across the globe and to maintain the UK’s “position as a globally competitive digital powerhouse”. For example, Tech City UK will now consider applications from individuals who are able to demonstrate “Exceptional Promise”; there will be a fast-track application procedure for digital businesses in the seven cities under the Tech North remit (including Leeds, Liverpool and Manchester); and if you are an overseas team of up to five individuals and want to relocate your team to the UK, you may also qualify for fast tracking.
Although the rules have been relaxed, this Tech Nation route is still capped at 200 visas per year and in 2014 only 91 visas were approved across this Tier.
From 12 November 2015, EEA nationals applying for naturalisation must first have obtained Home Office confirmation of their EEA permanent residence and have held that for a year before they can apply. This is an extra bureaucratic hurdle but may make the eventual citizenship application more straight forward.
Changes to the Shortage Occupation List
In November 2015, the Shortage Occupation List ("SOL") (a government list identifying roles which are deemed to be in severe shortage and for which employers get a total exemption from the Resident Labour Market Test) was expanded to cover four IT related occupations. However, to qualify for the SOL under these positions, the sponsoring UK employer must be a “qualifying company” and the job must require someone with at least five years’ relevant experience and demonstrable experience of having led a team.
Sponsors must apply to be considered as a “qualifying company”. New sponsors can do so by completing an additional one-page form when applying for a Tier 2 Sponsor Licence or existing Sponsors can apply using the “Sponsor Change of Circumstances” form. In addition, the Sponsor must have between 20 and 250 employees (or have fewer than 20 employees and supply a letter of endorsement from UK Trade & Investment); not be more than 25% owned by a company which has one or more other establishments in the UK which employs more than 250 employees; and not have been established in the UK for the purpose of supplying services exclusively to a single company or company group in the UK. It should also be noted that qualifying companies can only sponsor a maximum of ten migrants at any one time in these shortage occupation roles across all four occupations.
Changes to Sponsor Duties
Following the implementation of the latest Statement of Changes (HC535), several new provisions have been introduced which affect Tier 2 and 5 Sponsors. For example:
- It is now recommended that the Authorising Officer checks the Certificates of Sponsorship assigned to sponsored migrants on a monthly basis;
- Additional documentation in the form of references, DBS checks, job descriptions and qualifications must be retained by Sponsors;
- Where a vacancy is advertised on Universal Jobmatch, the screenshot must be taken on the date that the vacancy is first advertised;
- If the Home Office refuses an entry clearance or leave to remain application by a sponsored migrant because it does not consider the role to be a genuine vacancy, if may suspend the Sponsor Licence while it investigates the issue; and
- Unpaid leave or a reduction in salary below the relevant thresholds of four weeks or more in total during any calendar year is prohibited for sponsored migrants – this is a reduction of two days from the previous provision and it is important to always inform us of such changes to ensure the change is aligned with the Immigration Rules.
The Tier 2 & 5 PBS Sponsorship Guidance also introduced clarity on Mergers and Takeovers confirming that a new Licence application is only required when the sponsoring entity has a new direct owner.
Sponsor Licence Compliance
An increasing number of Sponsors are being audited and obtaining a Sponsor Licence is becoming increasingly difficult. The Home Office is now asking for detailed evidence about the company, the posts it intends to fill with migrant workers and if applying under Tier 2 (General), it also expects to see evidence of the Resident Labour Market Test, unless an exemption applies. The trend of conducting unannounced audits has also returned. It is imperative that all Sponsors ensure it has the necessary HR systems and processes in place, in particular, the Right to Work Checks are conducted before an employee commences employment, it has complied with its migrant tracking, record keeping and recruitment in addition to notifying UK Visas and Immigration of all relevant changes via the SMS.
The business impact of an unsatisfactory visit can have far reaching consequences – the Home Office can implement an action plan; downgrade the Licence to a B-rating and in the worst case, revoke the Licence completely.
With net migration at a record high the Government believes that employers are overly-reliant on overseas workers and asked the Migration Advisory Committee ("MAC") to compile a report with recommendations on how to restrict the Tier 2 system. The report can be viewed in its entirety here. The report has been sent to Government for consideration and whilst the Government is under no obligation to implement these recommendations, precedent suggests that they are highly likely to be implemented within changes to the Immigration Rules in April 2016.
The MAC specifically recommend the following:
- Tier 2 (ICT) be subject to Immigration Health Surcharge – while the Immigration Health Surcharge was first introduced in April 2015, Tier 2 (ICT) applicants have been exempt from paying this fee. The MAC, however, recommends that the exemption be lifted and Tier 2 (ICT) visa holder be required to pay the yearly £200 charge;
- The introduction of an Immigration Skills Charge. The MAC believes this levy will incentivise employers to reduce their reliance on migrant workers and encourage them to invest in training UK employees. The MAC has suggested a figure of £1,000 per year for each Tier 2 migrant (exceptions granted to Tier 2 (ICT – Skills Transfer) and Tier 2 (Graduate Trainee) subcategories) which will dramatically increase the cost of recruiting a migrant worker;
- To restrict volumes of Tier 2 migrants, the MAC proposes raising the overall minimum salary threshold from £20,800 to £30,000 with a lower threshold set at £23,000 for to graduates for Tier 2 (General) migrants; raising the overall minimum salary threshold from £24,800 to £30,000 for Tier 2 (ICT Short Term Staff) migrants; and amending the minimum salary threshold to £23,000 per year for Tier 2 (ICT Graduate Trainees). The report recommends maintaining the current minimum salary thresholds for Tier 2 (ICT Long Term Staff) migrants;
- Currently, Tier 2 (ICT) applicants are required to have worked for their overseas company for at least twelve months before being eligible for this immigration route. The MAC recommends this timeframe be extended to 24 months;
- The MAC has regrettably recommended requiring Tier 2 (General) in-country switching applications to be subject to the Resident Labour Market Test and included under an extended Tier 2 annual cap; and
- Use of the Tier 2 (Intra Company Transfer) route for third-party contracting be moved into a separate route and a higher salary threshold be applied.
In two areas of good news, it does not recommend that Tier 2 (General) be restricted only to occupations on an expanded shortage occupation list, and it does not recommend restricting automatic work rights for dependants.
Naturalisation and Return of BRPs
From 8 January 2016, migrants who have naturalised as a British citizen have been issued with a naturalisation certificate must now cut up and return their Biometric Residence Permit ("BRP") to the Home Office. The BRP must be returned to the Home Office within five days of the individual receiving their naturalisation certificate and the penalty for non-compliance is a fine of up to £1,000. This will have far-reaching consequences on international travel as most airlines will only permit onwards travel with valid permission to enter the UK. Individuals may want to consider either delaying their naturalisation ceremony to ensure travel on their BRP or consider making a British passport application immediately upon receiving their naturalisation application bearing in mind that a British passport application can take up to six to eight weeks.
Right to Rent
From 1 February 2016, all private landlords in England will have to check new tenants have the right to be in the UK before renting out their property. Under right to rent, landlords should check identity documents for all new tenants and take copies within 28 days before the start of a new tenancy. Under the new rules, landlords who fail to check a potential tenant’s "Right to Ren"’ will face penalties of up to £3,000 per tenant. The new law will mean that private landlords, including those who sub-let or take in lodgers, must check the right of prospective tenants to be in the country to avoid being hit with a penalty.
The Government argues that "right to rent checks are quick and simple, and many responsible landlords already do them as a matter of routine" but this remains to be seen and it will affect many migrants relocating to the UK. The intended change will also have a huge impact on landlords as they risk civil penalties for non-compliance.
In January, the Home Office introduced legislation to set the maximum amounts it can charge for visa, immigration and nationality applications over the next four years. The new legislation will come into effect on 18 March 2016 and it means that visas linked most closely to economic growth e.g. work and student visa will be increased by 2%; all visit visas will be increased by 2% to help maintain the UK’s position as one of the world’s top tourist destinations; an increase of up to 25% will apply to settlement, residence and nationality fees, as these routes deliver the most benefits to successful applicants; and a staggering increase of up to 33% for optional premium services offered by the Home Office such as the Super Premium service and Priority Visa Services overseas. These hikes will have a bearing on the bottom line cost to companies wishing to sponsor migrants, particularly those interested in expediting the decision.
Immigration Health Surcharge is to be extended to Australians and New Zealanders
From 6 April 2016, Australians and New Zealanders must also pay the Immigration Health Surcharge if they plan to spend more than six months in the UK, or if they are applying from within the UK to extend their stay. In April 2015, the Immigration Health Surcharge was introduced to all non-EEA nationals, which at the time excluded Australian and New Zealand nationals. Going forward, Australian and New Zealand nationals must pay £200 per year of stay in the UK although those, aged between 18 and 30, applying to come to the UK on the Youth Mobility Scheme will benefit from a discounted rate of £150 per person per year, a reduction of £50, which will align the cost with the amount paid by students.
The Government has stated that after only six months the surcharge has resulted in a collection of more than £100 million which contributes to the National Health Service citing that "the £200 surcharge fee is designed to help ensure the National Health Service remains sustainable and receives a fair contribution to the cost of healthcare from temporary migrants."
Settlement and Salary
From 6 April 2016, Tier 2 migrants from outside the European Economic Area who apply for settlement (Indefinite Leave to Remain) in the UK will be required to meet a minimum annual salary requirement of £35,000, with the exception of occupations on the Shortage Occupation List and certain PhD level jobs. In addition to the salary threshold, the migrant's employer must still hold a valid Tier 2 Sponsors License and must confirm active employment and salary details. Concerns have been raised by numerous bodies across different sectors on the impact of the minimum pay threshold on migrant workers not to mention that global employers must also budget accordingly.
Furthermore, to ensure that only high earners remain eligible for settlement, the Home Office also announced that this minimum threshold would increase each year through 2020.
For more information on the matters listed above or on immigration more generally, please contact Lynn McCloghry.