Several amendments to the Government’s Immigration Rules have recently come into force which will affect migrants making applications under Tier 1 of the Points Based System and employers wishing to sponsor migrants under Tier 2. We set out the key changes below.

Changes to Tier 1 (General)

Anyone making an initial application for grant of leave under Tier 1 (General) of the Points Based System, or who wishes to switch into Tier 1 (General) from another category, will face raised academic and financial requirements. In order to score points for qualifications and earnings it is now necessary to have a Master’s degree and a minimum salary of £20,000. Previously the requirements were a Bachelor’s degree and a salary of £16,000. While the rise in salary requirement might not cause too many issues, the fact that no points will now be awarded for a Bachelor’s degree (which previously earned 30 points) means that all applicants must have a Master’s degree, which is likely to prevent a significant number of migrants from being able to apply under this category.

Those who do not have a Master’s degree will have to look at alternatives, such as sponsored employment under Tier 2. This would mean that their leave to remain in the UK would be dependent upon their employment: something which is unattractive in the current economic climate where redundancies are on the increase. Also companies may not be keen to employ migrants under Tier 2, as to do so they must be registered sponsors and advertise the positions in question. This can be expensive, time consuming and administratively burdensome. Even if they do this, only where no suitably qualified EEA worker has applied for the job may the company employ the migrant worker. Nevertheless, employers should be wary of adopting a policy of refusing to accept any application from individuals who would require permission to work in the UK (see Osborne Clarke Services v. Purohit below).

It should be noted that those migrants who are already in the UK under the Highly Skilled Migrant Programme, or under Tier 1 (General) and wish to extend their stay in the country will not be affected by the changes.

Another, more welcome, change is that the UK Border Agency (UKBA) has expanded the types of applications that it is now possible to make in person at Public Enquiry Offices. Tier 1 (General) applications now fall within this category. This means that applications can now be approved in one day rather than having to be submitted by post, which usually takes at least six weeks.

Changes to Tier 1 (Post-Study Work)

Migrants applying under Tier 1 (Post-Study Work) will no longer be awarded points for Postgraduate Diplomas or Postgraduate Certificates other than Post Graduate Certificates in Education.

Changes to Tier 2 (General)

The UKBA has also strengthened the resident labour market test, which requires skilled jobs to be advertised in the UK before they can be offered to migrant workers. All Tier 2 jobs must now be advertised through both JobCentre Plus and one other method permitted by the relevant UKBA code of practice for the job in question. This will make it more difficult for migrants to successfully apply for these posts, especially given that, in order to employ a non-EEA national under Tier 2, the employer will need to demonstrate that no suitably qualified EEA worker has applied.

It should also be noted that new forms and new fees have been published for many immigration categories and so care should be taken before making any applications.  

A note of caution

Employers might wish to take note of the recent case of Osborne Clarke Services v. Purohit, in which an Employment Appeal Tribunal found the employer’s policy of refusing to accept training contract applications from applicants who required work permits to be indirect race discrimination. The UKBA requires employers to demonstrate why a position cannot be filled with resident EEA workers and give reasons for why they have not employed a resident worker who was suitably qualified or who could do the job with extra training. The employer’s argument was that as the positions were training contracts it would always be possible to find EEA residents who, with training, could do the job. The employer also cited as reasons for the policy the costs involved in dealing with an increased number of applicants and the costs of making work permit applications that would almost certainly be unsuccessful. The employer’s arguments were rejected and the Employment Appeal Tribunal found that selection of candidates should be based on ability alone and that logistical issues such as work permits should not be considered until later in the selection process.

This seems to be a very harsh decision as far as employers are concerned and it is possible that it will be appealed further. However, employers would be well advised to avoid implementing blanket bans on applications from candidates who require permission to work in the UK.