We summarise below some recent changes to the Immigration Rules and Guidance and look at changes which may be implemented in 2016.
- Tier 2 general monthly quota: Effective October 2015, the points awarded for salary bands have changed. The effect is that Requests with lower salary levels are more susceptible to refusal
- If the Home Office refuses a visa to a sponsored migrant on the basis that it does not consider a “genuine” vacancy exists, it may suspend the employer’s Sponsor Licence whilst it investigates
- Some restrictions have been introduced in cases where Tier 4 migrants are switching into the Tier 2 (General) category including that the institution where the Tier 4 Student studied their degree must be a publicly funded institution.
- British citizenship applications for EEA Nationals: Effective 12 November 2015, EEA nationals applying to naturalise as British Citizens MUST first obtain a document certifying Permanent Residency (PR) in the UK. Previously, EEA nationals could evidence having acquired PR “presumptively” as part of their Citizenship application. Separate applications are now required
- Subject to limited exceptions, those Tier 2 Migrants applying for Indefinite Leave to Remain (ILR) in the UK on or after 6 April 2016, must have a salary of at least GBP 35,000 (or the minimum as indicated in the Code of Practice (COP), whichever is higher)
- Tier 2 sponsor’s compliance – Additional responsibilities:
Sponsors must now also retain the following:
- Detailed/specific job description for the Tier 2 Migrant’s role to include the skills, qualifications and experience required and evidence that the Migrant has this required qualifications/experience/skill – set e.g. degree certificate, references from previous employers etc. This will apply to ALL Tier 2 Migrants and not just where a Resident Labour Market Test (RLMT) was required
- For Tier 2 General (shortage occupation) Migrants, the Sponsor must also retain documents evidencing why the role requires someone with the stated experience/ why the job could not be carried out by someone less experienced/how they would expect a settled worker to gain the requisite experience before being able to fill the post
- Sponsor’s should have in place a system enabling Authorising Officers to check assigned Certificates of Sponsorship (COSs) on, at least, a monthly basis. This reflects a more “hands on” responsibility for the Authorising Officer
- There is no longer a 20 day grace period following the expiry of the Sponsor Licence during which time it may be renewed. Sponsor Licences should therefore be renewed in a timely manner to avoid revocation ofthe Sponsor Licence, and subsequent curtailment of Tier 2 sponsored workers’ leave
- Where, following a sale of a majority of its Shares, a Sponsor’s immediate owning company has changed, a new Sponsor Licence will be required but migrants will not need to make a change of employment application. A new Sponsor Licence will generally not be necessary where the Sponsor’s immediate owning company has not changed although a notification via the Sponsor Management System (SMS) will still be required
- Sponsors must notify the Home Office if they assign a COS to a family member of an employee where the Sponsor is a Small or Medium sized organisation, or for a Large organisation, where the Sponsor is aware of the relationship
Possible changes to come?
1. Immigration Bill 2015 – Employers and Employees beware!
This draft bill if implemented in its current form will tighten sanctions for offending Employers and Employees alike.
- Employers will be guilty of a criminal offence if they “know or have reasonable cause to believe” that a person is working without qualifying leave. A significant change from the current test which requires actual knowledge
- Offending employers will be subject to maximum custodial sentences of 5 years as opposed to the present 2 years
- Offending employees will be guilty of a criminal offence of “illegal working” punishable by a custodial sentence and/or a fine. Their wages would also be treated as proceeds of crime
2. The Government has requested a review by the Migration Advisory Committee (MAC) – an independent advisory body – of Tier 2 of the Points Based System, to achieve their goal of reducing net migration. The MAC is due to publish its report by January 2016. Some relevant points include:
Tier 2 general:
- The restriction of Tier 2 General to Senior Specialists/Shortage roles, and increasing salary thresholds for these roles
- The Shortage Occupation list to be re-shuffled and realistically narrowed, to include “genuine” skills shortages
Tier 2 Intra Company Transfers (ICTs):
- A cap on the number of ICT Migrants available to Tier 2 Sponsors
- Extending the liability for the Immigration Health Surcharge (IHS) to ICT Migrants
Tier 4 to Tier 2 general transition:
- A removal of the exemption from RLMT for all qualifying Tier 4 General migrants
- Increases in minimum salary thresholds both for Tier 2 subcategories and on the COPs
- The introduction of a Skills Levy to certain businesses thus making employing migrant workers even more expensive. This has actually been foreshadowed in the draft Immigration Bill (above)
Watch this space - we will continue to keep you updated and notify of the key changes that could affect your business.