On the 26 February 2015, the UK Government announced changes to the UK Immigration Rules which are due to come into effect on 6 April 2015. The changes which will affect employers most relate to amendments being made to the Tier 2, Visitor and Overseas Domestic Worker categories.

TIER 2

Tier 2 of the Points-Based System is the category that allows UK companies to sponsor non-EEA nationals to undertake a skilled job in the UK. The two subcategories of Tier 2 which are most frequently used by UK employers are Tier 2 (Intra- Company Transfer) (ICT), which allows companies temporarily to transfer employees who work for the company overseas to the UK, and Tier 2 (General), which enables companies to employ non-EEA nationals in the UK in permanent roles.

The following changes are being made to Tier 2:

  • Changes are being made to the Shortage Occupation List, namely:
    • changes to graduate occupations in the health sector, including the addition of paramedics. Paramedics are now are also being re-classified as being skilled to National Qualifications Framework (NQF) level 6, rather than NQF level 4 as it was previously;
    • changes to the existing entry for overhead lines workers in the energy industry; and
    • reclassification of some existing entries.

The Government intends to implement further changes to the Shortage Occupation List, relating to graduate occupations in the digital technology sector, for recruits of scale-up companies, in the near future.

  • Annual updates are being made to the minimum salary thresholds and appropriate salary rates for individual occupations (as set out in codes of practice). The updates to appropriate rates for occupations are based on the latest available salary data. The updates to salary thresholds are in line with changes in average weekly earnings for resident workers (a 1.2 per cent annual increase based on the 12 months ending November 2014), rounded to the nearest £100. The revised salary thresholds are as follows:

​Click here to view table.

  • Due to the regularly high demand for restricted Tier 2 (General) Certificates of Sponsorship (CoSs) just after the annual limit is reset in April each year, the limit is being rebalanced to increase the number of places available at the start of the limit year from 1,725 to 2,550. The overall size of the limit (20,700 places per year) remains unchanged, and unused places will continue to be carried over from previous months until the end of each limit year.
  • A change is being made to the 12 month “cooling off period” that prevents applicants from being granted Tier 2 leave when applying from outside the UK if they were in the UK with Tier 2 leave within the previous 12 months. This means the cooling off period will not apply to previous grants of Tier 2 leave of three months or less, improving flexibility for businesses who need to transfer key staff for very short periods, rather than to fill ongoing vacancies in the UK.
  • Due to increased queries on these areas, minor clarifications are being made to confirm:
    • the settlement earnings threshold (see the last row in the table above) only applies at the time the application for indefinite leave to remain (also known as settlement and permanent residence) is made, not throughout the five-year qualifying period;
  • how the appropriate salary rates for new entrants and experienced workers are applied; and
  • for Tier 2 (ICT) applicants who have worked for their Sponsor in the UK in another immigration category, how such work will be taken into account when assessing previous experience working for the Sponsor’s organisation overseas.

The Government is, again, only making minor changes to the Tier 2 route, which is the main route used by non-EEA migrants wishing to come to the UK to work.  The main changes relate to the annual update to the minimum salary thresholds and appropriate salary rates for individual occupations. The introduction of the exception to the “cooling off” period for those coming to the UK under Tier 2 for three months or less is welcome and it is hoped that this is an indication that the Home Office will consider additional exceptions to the “cooling off” period in the future to reduce the adverse effect that this provision has on UK businesses.

VISITORS

Arguably the biggest change being introduced is a fundamental redesign of the visitor category. This is part of the Home Office’s intention to introduce a new structure and style to all the Immigration Rules. This means moving from Immigration Rules which relate to a particular route being split over several different sections to a situation where all the Immigration Rules relating to a particular category can be found in a single section.

The intention is that, except in some specific instances, some  of which are mentioned below, these structural changes should mean that there is no difference between the activities that someone entering the UK under the redesigned visitor routes will be able to undertake as compared to those that an individual can undertake under the current structure.

There are currently 15 different visitor routes set out in the Immigration Rules. The Home Office intends to reduce these to just four routes:

  1. Visitor (Standard) – this will consolidate the general, business, child, sport, entertainer, visitors for private medical treatment, visitors under the Approved Destination Status Agreement with China, prospective entrepreneurs and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board test and the Objective Structured Clinical Examination. This will mean that those entering the UK under the visitor (standard) route will be able to undertake a range of activities under a single category where they had previously been required to apply for entry under separate categories.
  2. Visitor for marriage or civil partnerships.
  3. Visitor for permitted paid engagements.
  4. Transit visitor.

No changes are being made to the structure of the last three routes.

The student and extended student visitor routes are being rebranded into short term study routes and the parent of a child at school route is being rebranded as a parent of a Tier 4 (child) student.

In relation to the business activities that a Visitor (Standard)  may undertake in the UK, the Home Office has sought to clarify what it considers to constitute “work” and has also extended the list of permitted activities to address gaps in the system, namely:

  • allowing visitors to carry out incidental unpaid volunteering for up to 30 days at a UK registered charity;
  • allowing overseas trainers to deliver training to UK based employees of a multinational company, where the training is part of a contract to deliver global training to the international corporate group;
  • allowing UK based organisations, who are not corporate entities, to provide training to overseas visitors on work practices and techniques that are needed for their employment overseas, where this is not readily available in their home country; and
  • expanding the existing provision to allow overseas lawyers to advise a UK client on international transactions and litigation, provided they remain paid and employed overseas.

A further clarification has been made to confirm that, where a Visitor (Standard) is in the UK on behalf of their overseas employer as part of that employer’s contract to provide services to a UK company, and the majority of contract work is carried  out overseas, the employer may bill the UK client for the time the Visitor (Standard) has spent in the UK. However, it is important to note that, even though the overseas employer is permitted to charge for the time spent in the UK, the Visitor (Standard) may still only undertake the permitted activities in the UK.

OVERSEAS DOMESTIC WORKERS

The Immigration Rules are being amended to require a worker entering the UK under this category to be paid in accordance with the National Minimum Wage Regulations. In addition,a requirement is being added to prevent employers using an exemption that was designed for au pairs which allows employers to decline to pay the Minimum Wage to those living as part of the family.

ADMINISTRATIVE REVIEW 

The main effect of Section 15 of the Immigration Act 2014 was to remove the right of appeal for all immigration refusal decisions and to replace it with a system of administrative review. The Government agreed to a phased roll out of administrative review and these new Rules confirm that this roll out will be completed on 6 April 2015. From this date, administrative review will be the only process available to correct case working errors in certain decisions where there is no right of appeal. This effectively means that, after 5 April 2015, it will no longer be possible to pursue a formal appeal through the court system if an application is refused. It is important to note that it is not possible to appeal or request an administrative review of a decision to refuse a visitor or short term student application. Those who have had applications refused under these routes should, instead, submit fresh applications which address the reasons for refusal.

CONCLUSION

With the exception of the redesign of the visitor route, these changes represent a general tightening of the Immigration Rules to prevent perceived abuse and an attempt to address  the unintended consequences of previous changes to the Immigration Rules. Although the intention is that, in the main, the change in the structure of the visitor route should not lead to a substantive change in the activities that visitors may undertake in the UK, it is inevitable that the redrafting will lead to some changes in interpretation. However, it will take some time  before the full effect of this redrafting is known.

The fact that the Home Office has introduced an exception to the “cooling off” period for those coming to the UK under Tier  2 for three months hopefully indicates a willingness to consider further liberalisations of the Tier 2 category in the future.

Many will be disappointed to see that the right of appeal has now effectively been withdrawn for all immigration refusal decisions, although some decisions will still be able to be challenged by way of judicial review. It will therefore be interesting to see how effective the administrative review process is in addressing situations where the Home Office has made an error in the processing of an application which has led to a refusal.