We summarise below relevant changes to the Immigration Rules and Guidance effective 6 April 2017, foreshadowed by our bulletin in March 2016, and which will impact non-EEA nationals coming to the UK.
Immigration Skills Charge
An Immigration Skills Charge (ISC) will be payable for Tier 2 Migrants. The ISC will not apply where:
- a non-EEA national sponsored in Tier 2 before 6 April 2017 applies for leave to remain in the UK as a Tier 2 Migrant
- the applicants' roles fall within a PhD level Code of Practice (COP)
- applications are made under the Tier 2 (ICT) Graduate Trainee sub-category
- Tier 4 student visa holders are switching to a Tier 2 (General) visa from within the UK
- To note, the ISC will not apply to family members of Tier 2 Migrants.
The ISC will be at a rate of £1,000 per year, per migrant. A reduced rate of £364 per annum will apply for small and charitable sponsors. A small business is one which meets two or more of the following - an annual turnover of no more than £10.2 million; a Balance Sheet total of no more than 5.1 million; 50 employees or fewer.
The ISC will be levied in a lump sum when the Certificate of Sponsorship (COS) is assigned and presently, there will be no rebate if sponsorship of the migrant should end earlier. Given this, employers may want to insert a clawback provision in contracts covering surplus ISC where an employee voluntarily leaves employment. Employers should also consider assigning COSs for an initial 3 year, rather than 5 year, period to reduce ISC.
Overseas criminal record certificates: Although there is a requirement for Tier 2 applicants (and their adult dependants) to obtain overseas criminal record certificates, this only applies to roles that fall in to specific COPs such as education, health and social care sectors.
Home Office Application fees: Most, if not all, Home Office application fees are expected to increase.
Changes to Tier 2 Categories
(All references to salary in the below sections reflect gross salary)
Appropriate salary: There is greater clarity on what can and cannot be included when calculating the "appropriate salary" for the purposes of both ICT and General applications. For example, allowances that are guaranteed must be paid for the duration of the applicant's employment and unless part of the regular salary package, one-off allowances cannot be counted.
Tier 2 General:
- The overall minimum salary threshold will increase from £25,000 to £30,000 for Experienced workers. The salary will remain subject to the minimum salary threshold in the COP, i.e. the higher of the two figures will apply.
- Certain COPs will be updated with increased higher minimum rates of pay for Migrants.
- The remuneration threshold to be considered a 'High Earner' and thus exempt from the Resident Labour Market Test (RLMT), monthly Quota requirements and "cooling off" periods will increase to £159,600 from £155,300.
- Where the RLMT is applicable, roles offering salaries below £73,900 (previously £72,500) will need to be advertised on Universal Jobmatch / Job Centre Plus as well as one other approved forum.
- Applicants will be exempt from the RLMT where the applicant is being sponsored as part of the relocation of a high value business to the UK or a significant new inward investment project. To benefit from this provision, the applicant must show that, inter alia, the relocation or inward investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs.
Tier 2 Intra-Company Transferee (ICT):
- Payment of the Immigration Health Surcharge will extend to ICT Migrants and their accompanying family members. The rate remains at £200 per year for each applicant.
- Where applicable, applicants applying under the Tier 2 ICT framework do not need to meet the 12 month overseas experience requirement where they are paid the equivalent of at least £73,900 per annum.
- The Tier 2 (ICT) Short-Term Staff sub-category will close. For transfers to the UK, businesses will need to use the Long Term Staff category for which the applicant's gross annual remuneration must be at least £41,500.
- Currently, those Tier 2 (ICT) Long-Term Staff Migrants who wish to remain in the UK beyond 5 years (up to 9 years) must receive a gross annual remuneration of £155,300 per annum. This threshold will reduce to £120,000 per annum.
If there are any applications that may be adversely affected by the above, we recommend they be submitted under the current Rules i.e. before 6 April 2017.