Many Work Permit Holders/Tier 2 Migrants, who complete five years' continuous, lawful residence in the UK, can apply for indefinite leave to remain. For such an application to succeed, however, it requires, amongst other things, the support of the sponsoring employer.
We have examined the three main areas where an employer’s input is required and the problems which tend to arise. These are:
- changes to employment;
- confirmation of continued employment and salary; and
- absences from the UK.
Changes to employment
A Work Permit Holder/Tier 2 employee needs to demonstrate that he or she has been continuously employed in the UK throughout the five years under the terms of the Work Permit/Certificate of Sponsorship. This means that any significant changes to the terms of that employment (whether in hours of work, job title, salary, role, or location) should have been notified to/reported to, and approved by, the Home Office.
Failure to obtain authorisation for these changes may lead the Home Office to conclude that the employment was illegal. This would have ramifications on both the employee and the employer.
The employee’s application could be refused and his or her leave curtailed for breaching the terms of his or her employment, which would impact the employee's career and future in the UK.
The employer could face a civil penalty and receive a visit from the Home Office's visiting officers to check as to whether or not there are any other breaches. Further, if the employer is a sponsor licence holder, it could face action against its licence.
Confirmation of continued employment and salary
An employer also needs to provide a Work Permit Holder/Tier 2 employee with written confirmation that the continued employment is still required and that the employee is being paid at or above the appropriate rate for the job as set by the Home Office.
Work Permit Holders may find that, although the salary was approved under the Work Permit scheme, it is lower than the equivalent under Tier 2; therefore, the sponsored employee's application could be refused. Although the decision in Philipson suggests that a refusal due to the fact that the salary of a Work Permit Holder is lower than that set by the Codes of Practice may be open to challenge, this is not certain; it is therefore important to ensure salary levels meet the requirements for the role.
In 2012, the Home Office introduced a limit of 180 days per year on the amount of time applicants for settlement under a Work Permit/Tier 2 are allowed to have spent outside the UK in the five years before their applications. This change applies retrospectively.
The 180 days per year is generous in comparison with the previous limit of 180 days over the five-year period; however, whereas the previous limit afforded some flexibility to those whose absences were due to their work, the new limit does not. This means that many are finding that they are ineligible for settlement even though the absences were due to reasons outside of their control. Employers requiring migrant workers to travel should work with their employees to ensure that their plans for settlement are not jeopardised.
Work Permit Holders/Tier 2 sponsored workers also need to obtain from their employers confirmation which details the purpose and period of absences from the UK; this is to show that the absences are consistent with their employment, including both business travel and annual leave.
Certain Tier 2 (General) Migrants now face a limit of six years on their time under this category. At the end of the six years, they must either qualify for settlement, switch into a different visa (if available), or leave the UK. It is therefore more important than ever that employers plan for their long-term needs by ensuring that UK-based employees will be able to remain with them when required.