Changes to Tier 2 General
Tier 2 migrants must be paid at or above a certain minimum threshold, or the minimum salary for their role as set out in the Codes of Practice, whichever is the higher.
For experienced Tier 2 General workers, the minimum salary threshold will rise in October 2016 to £25,000. A further increase to £30,000 is expected in April 2017. The minimum threshold for new entrants will remain at £20,800. Employers issuing new Certificates of Sponsorship (CoS) should check that their employee will be paid at least this amount.
Due to ongoing public sector pay restraint and difficulties in recruitment, there will be special exemptions from the salary threshold for nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin. These occupations will also be given extra weighting when the Home Office considers monthly applications for restricted CoS. This means that if the monthly cap is hit, they will get preferential treatment. These measures are due to apply until July 2019. Overseas graduates will also get extra weighting when deciding who should be allocated the limited number of restricted CoS.
The government has also said that nurses will remain on the Shortage Occupation list, but it will require employers to carry out a resident labour market test before recruiting a non-EEA nurse.
Finally, the government has indicated that from April 2017, there will be extra weighting to favour applications for restricted CoS, where these are associated with the relocation of a high-value business to the UK or, where they support an inward investment. The government is also prepared to waive the resident labour market test for these applications. We await further details of how this will work in practice.
Only time will tell what impact the new weighting system will have on sponsors’ ability to obtain restricted CoS for other roles.
Changes to Tier 2 Intra-Company Transfer (ICT
From October 2016, all Tier 2 ICT migrants will be required to pay the Immigration
Health Surcharge, of £200 per person per year of their visa.
The government is also taking steps to simplify and streamline the different types of Tier 2 ICT visa.
In October 2016, the ICT Skills Transfer category will be closed to new applicants. The ICT Short Term category will continue until April 2017, but in the meantime the minimum salary threshold will increase to £30,000.
In future the government’s plan is to have a single ICT visa category with a minimum salary threshold of £41,500. The exception will be the Graduate Trainee category, where we expect the current salary threshold to be reduced from £24,800 to £23,000. The number of trainees one sponsor can bring to the UK is set to increase from 5 to 20. Further changes in April 2017 will include a lower minimum salary threshold for intra-company transferees working in the UK for between five and nine years from £155,300 to £120,000. Additionally, the requirement to have one year’s experience will be removed for all applications where the worker is paid over £73,900.
We are also expecting the government to review the extent to which allowances can be counted towards minimum salary requirements. Sponsors should look out for further updates on this topic.
Sponsor licence renewals
We reported last month that many sponsor licences are due for renewal before the end of the year. It has come to our attention that some sponsors are struggling with their renewals, because of a defect in the licence renewal process, which is preventing specific Level 1 users who have previously submitted a licence renewal application from doing so again.
The Home Office has advised that if the problem arises, an alternative Level 1 user should submit the renewal application where possible. However, if you have only one Level 1 user and that person submitted an earlier licence renewal application in 2012, it will not be possible to apply to renew your licence until the Home Office’s IT provider has fixed the problem. Sponsors in this position should keep checking the SMS message board for progress updates.
It is worth noting that we would always recommend having two users on the SMS, so another option may be to apply to add a new Level 1 user who, if approved, could then make the renewal application.
Prevention of illegal working
The latest figures reveal that in the period January-March 2016, the Home Office imposed 838 civil penalties on employers who they caught employing illegal workers. The total value of the fines came to £14 million.
There have been concerns that the civil penalty system lacks teeth, in particular where the business is wound up to avoid paying the fines. The directors of a restaurant chain who recently did this, have been pursued by the Insolvency Service and banned from being company directors for periods ranging from six to eight years.
More recently, we have seen a general crackdown, with a range of clients reporting Home Office inspections and potential penalties. In some cases these have had to be paid, but in others the Immigration Team at Birketts has successfully challenged penalties, particularly where there were agency workers involved.
The Home Office is also likely to become more aggressive since a new criminal offence was introduced in July, of employing someone who you had reasonable cause to believe did not have the right to work. Prosecution can result in prison sentences of up to five years for directors.
If you have any concerns, please do not hesitate to contact a member of our Immigration Team for advice. We also offer a right to work checks masterclass which can be tailored for HR or for line managers, as well as a mock audit service.
We have previously reported on government proposals to dramatically increase the fees payable by applicants to the First Tier Tribunal and the Upper Tribunal. Despite 142 out of 147 replies saying that First Tier Tribunal fees should not be increased to this level, the government has indicated that it will push ahead with its plans, in an effort to make these courts self-funding. This means that a 500% increase in fees for a first level appeal will be brought in “as soon as possible”.
As expected there has been a surge of EEA nationals applying for permanent residence cards. This means completing an 85 page form and supplying a raft of supporting documentation. An online service for permanent residence applications is due to become available from 1 October 2016. Online applicants will be able to make an appointment to submit their paperwork via certain local authorities (including Cambridgeshire). They cannot advise on draft applications in the way that Birketts does, but after your application is submitted they will be able to copy and return your passport immediately. See: https://www.gov.uk/government/collections/european-passport-return-service.
The UK’s constitution is unwritten and so there is a lack of clarity on how Article 50 may be triggered. The government’s position is that it can exercise perogative power to do this without consulting Parliament. However, this is being challenged. The High Court is due to consider the point next month. If the case is then referred to the Supreme Court it could be the end of the year before we get a final decision, even if it is expedited.
Meanwhile British expatriates are seeking to challenge the ban on EU officials negotiating with the UK before Article 50 is invoked. The organisation, Fair Deal for Expats, is seeking a hearing at the General Court of the European Union in Luxembourg.
As a flavour of what is to come in the negotiations, the Prime Minister of Slovakia has said that Poland, Hungary, the Czech Republic and Slovakia (“the Visegrad group”) would seek to block any trade agreement that threatened free movement of workers.
The latest immigration statistics have been released, for the year ending June 2016 (i.e. pre-referendum). There was a 1% increase in Tier 2 skilled work visas granted. But the refusal rate for this type of visa application made outside the UK was 3%. Tier 4 student visas are down by 5%. However there has been an increase of 10% in respect of familyrelated visas and a 17% increase in the number of EEA family permits (for non-EEA family members of EEA nationals). There was a 13% fall in dependant visas relating to other routes.
We also have the net migration figures for the period to March 2016. The trend is broadly flat (although still at record levels). There has been an increase in Romanian and Bulgarian nationals entering the UK, but numbers from other central and eastern European countries have fallen. Work remains the top reason for migration, followed by study. However a significant fall in the number of students has already been reported.
Nationals of certain countries are required to register with the police when they come to the UK for more than six months. The police registration condition is no longer going to appear on Biometric Residence Permits, but will be included on the 30 day entry clearance vignette issued to enable travel to the UK and on letters confirming that the migrant’s application for entry clearance or further leave to remain has been successful. Migrants who are required to register must show all of these documents to the police, within seven days of arrival in the UK. See: www.gov.uk/register-with-the-police.