Ilda de Sousa Katherine Pymont March 9 2012 Overview (March 2012) Kingsley Napley | Employment & Immigration - United Kingdom Ilda de Sousa, Katherine Pymont Employment & Immigration End of work restrictions on A8 nationalsTier 1 (Exceptional Talent) route openIndefinite leave to remain absences and appropriate rate New reporting duty for sponsors of employees on sabbatical Unannounced UKBA compliance visits Roll-out of biometric residence permits to remaining migrants Migration Advisory Committee recommendations Premium sponsorship proposal Call for evidence on annual limit on Tier 2 and associated policies A number of key developments made 2011 an eventful year for immigration, including eight UK Border Agency (UKBA) consultations which related, directly or indirectly, to the work routes and the permanent immigration cap for Tiers 1 and 2 being introduced on April 6 2011.End of work restrictions on A8 nationalsAs of May 1 2011, A8 nationals are permitted to work in the United Kingdom without restriction. The Worker Registration Scheme for nationals of countries that joined the European Union on May 1 2004 is no longer in operation and employers can employ those people without immigration permission.The scheme covered nationals of the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia. It required those employed in the United Kingdom to register with the UKBA within one month of the start of their employment. It did not cover self-employment. Such nationals now have unlimited access to the UK labour market, in the same way as other EU nationals, so employers need not make immigration applications in relation to employing them.Tier 1 (Exceptional Talent) route openIn August 2011 the UKBA announced the opening of the Tier 1 (Exceptional Talent) category of the points-based system. The route is designed for people who are - or have the potential to be - internationally recognised in the arts or sciences. Applications may be made only by those outside the United Kingdom, so applicants cannot switch into this route from within the United Kingdom.Indefinite leave to remain: absences and appropriate rate The UKBA is now strictly adhering to its policy on absences for the purpose of indefinite leave to remain. If the applicant has spent more than 180 days outside the United Kingdom during the five-year period preceding the filing of the application, regardless of whether this was for business or pleasure, the application will be referred to a senior caseworker for consideration on a discretionary basis. The application may fall for refusal if the absences exceed 180 days. If the applicant exceeds this figure, the application will remain in a queue until a decision is made, which may take weeks. This is the case even if the individual pays to file the application through the premium service at the Public Enquiry Office Croydon (or another regional office), which processes applications within 48 hours.On October 31 2011 the immigration rules were amended to confirm that work permit holders and Tier 2 migrants applying for settlement must submit evidence that they are being paid at or above the appropriate rate for their job (as set out in the Tier 2 codes of practice).New reporting duty for sponsors of employees on sabbatical The UKBA has added an additional reporting requirement where an employee goes on unpaid sabbatical for over one month. This must be reported within 10 days through the Sponsor Management System. Significantly, the employee can no longer be sponsored during this period, unless an exception applies, and therefore a new application will need to be approved before the employee can resume his or her duties in the United Kingdom. The exceptions are limited to situations in which there are company-wide reductions in working hours due to the economic climate, or the employee is taking maternity, paternity, adoption or sickness leave.Unannounced UKBA compliance visits Many sponsors have received unannounced compliance visits from the UKBA, which are often a considerable inconvenience for the authorising officer and members of the human resources team. In most cases sponsors would prefer to approach the UKBA in order to arrange a mutually convenient appointment and the UKBA will endeavour to facilitate this. Although this will not prevent future unannounced visits, at least sponsors will have the reassurance that their human resources systems for monitoring migrants are in order.A worrying trend has also come to light whereby unannounced compliance officers are asking for information which arguably goes beyond what is necessary for immigration compliance - for example, details of sponsors' business continuity plans and the location of servers have been requested.A request has been made to the UKBA to publish a list of requirements and explain why the information is required, so that this information can be shared with sponsors.Roll-out of biometric residence permits to remaining migrants Subject to parliamentary approval, from February 29 2012 all migrants applying for permission to remain in the United Kingdom for more than six months will need to apply for a biometric residence permit. This roll-out will incorporate all remaining applicants who have not previously been subject to the biometric residence permit requirements. It will include those applying for indefinite leave to remain, as well as settled migrants who require evidence of settled status to be reissued because their vignette is in a lost, stolen or expired passport.The roll-out to those applying overseas and to in-country applications made before a biometric registration requirement will take effect from December 1 2012, after which time all individuals who apply to enter or remain in the United Kingdom will require a biometric residence permit. Until this date, these applicants will continue to receive a vignette as evidence of leave in their passports.For most applicants, facilities to enrol biometric data will be provided through post offices; only applicants who pay the premium service fee for a same-day service will be able to enrol their biometric data at one of the Home Office's public enquiry offices. Migration Advisory Committee recommendations Settlement criteria for Tier 1 (Exceptional Talent) and Tier 2The immigration minister commissioned the migration advisory committee to call for evidence and make recommendations on introducing selective settlement requirements in the Tier 1 (Exceptional Talent) and Tier 2 (General) categories. The committee consulted widely with employers and interested parties and published its findings and recommendations on November 4 2011.Employers responded with a request that no restrictions be placed on Tier 2 (General) migrants, particularly given the recent restrictions already imposed on entry in this category. There was an overwhelming desire for simplicity and symmetry with any new measures to be introduced. Respondents were also concerned about the potential effect on competitiveness and the ability to attract suitable talent to the UK labour market. However, in order to achieve the government's stated aim of reducing immigration, the committee: recommends implementing a minimum annual pay threshold of between £31,000 and £49,000 to qualify for settlement in the Tier 2 (General) and Tier 2 (Sportspersons) categories; recommends allowing a mechanism whereby the government can introduce exceptions for some public sector jobs and roles in the technology sector which will contribute to future economic growth; does not recommend regional variations in setting the minimum threshold; recommends that Tier 1 (Exceptional Talent) migrants be permitted to settle without restrictions; makes no recommendations for Tier 2 (Ministers of Religion); and recommends that the minimum pay threshold for remaining in the United Kingdom beyond five years be set at the time that the migrant enters the United Kingdom. Spouse visa applicationsWith regard to spouse visa applications, the committee has recommended that the threshold earned income of the sponsor in the United Kingdom be set at between £18,000 and £25,700 gross a year.(1)Premium sponsorship proposal The UKBA proposes to introduce a premium service for trusted sponsors in Spring 2012. The benefits of the service will include: a designated senior account manager for each sponsor; a simpler application process for international workers; an improved notification and checking service; and attendance at meet-and-greet stakeholder events. The proposed annual fee for this service has increased to £25,000 from the £20,000 initially publicised. To cater for small and medium-sized businesses that have paid the reduced licence fee, there is a proposal to offer a reduced and targeted package of benefits for a fee of £8,000.Some sponsors may not wish to sign up for these additional services. The UKBA has stressed that the service they receive will not suffer as a result.Full details of the respective responsibilities of the sponsor and the UKBA have yet to be published. However, some experts are concerned about the potential impact on the existing service, in particular on access to the Public Enquiry Office 24-hour service - sponsors are already experiencing delays of up to one week in many cases. These concerns have been raised with the UKBA.Call for evidence on annual limit on Tier 2 and associated policies On October 26 2011, following a commission from the minister for immigration, the Migration Advisory Committee launched a call for evidence on the level of the annual limit on Tier 2 of the Points-Based System in 2012/2013 and associated policies, including the intra-company transfer route, the resident labour market test and the minimum skill level for Tier 2. The deadline for evidence was December 21 2011.The committee has been asked to consider the following questions: At what level should the limit on Tier 2 (General) be set for 2012? Is the £40,000 minimum salary threshold for intra-company transfers seeking to stay for at least 12 months an appropriate proxy test to ensure that migrants meet the General Agreement on Trade in Services definition of 'senior managers and specialists'? Should the £40,000 be a national rate or allow for regional variations in pay? Does the inclusion of non-salary remuneration (eg, accommodation allowances) undermine the use of the £40,000 threshold as a proxy test of skill level? What would the impact be on the numbers of migrants in Tier 2 if the skills bar were to be raised from National Qualification Framework Level 4 and above to National Qualification Framework Level 6 and above? If the threshold for the resident labour market test exemption were lowered from £150,000 to between £70,000 and £100,000, what would the impact be on demand for Tier 2 visas, the resident labour force and employers? The proposed increase in the skill level required for Tier 2 migrants is particularly significant. The committee has identified that implementing the increase in skill level for Tier 2 could result in the exclusion of up to 34 occupations, including journalists, marketing associate professionals and public relations officers. Such a change would significantly affect certain sectors, to the extent that if the occupation were to be removed from the graduate occupation list and the relevant code of practice, it would be impossible for an employer to sponsor an individual in the United Kingdom.For further information on this topic please contact Ilda De Sousa or Katherine Pymont at Kingsley Napley by telephone (+44 20 7814 1200), fax (+44 20 7490 2288) or email ([email protected] or [email protected]). The Kingsley Napley website can be accessed at www.kingsleynapley.co.uk.Endnotes(1) Full details of the published findings can be found at www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/mac-settlement-report.