Employer sponsorshipi Recent history
Over the past half century, a variety of routes became available to those who wished to enter the UK for working purposes, or to establish or join a commercial enterprise. By 2005, the government claimed that there were nearly 80 such routes available, which were based upon a number of disparate provisions, both within and outside the Immigration Rules. Although the majority of overseas migrants coming to the UK as employees held work permits, numerous other discretionary routes were available outside the Immigration Rules, including personal domestic servants, employees in diplomatic households, academic visitors and foreign lawyers.
The work permit system was relatively straightforward and required a prospective UK employer to submit a work permit application form to Work Permits (UK), which was considered by Home Office officials within the parameters existing at that time. By the early part of the past decade, the majority of those to whom work permits had been issued were required to obtain entry clearance from a UK consulate in their home country or place of residence before being permitted to enter the UK to take up employment.
In February 2005, the then-Prime Minister Tony Blair announced that the government wished to dramatically alter the immigration landscape by sweeping away many of the various employment-based immigration routes, reducing them to five categories or 'tiers'. Persons who fell into any of the five tiers would have their applications determined by an objective PBS linked to specified attributes, such as salary, academic qualifications and skill levels. This structure was intended to remove any element of discretion concerning who was, and who was not, permitted to enter the UK for work purposes.
This dramatic change was coupled with an intention to make employers themselves responsible for assigning work approvals (to be known as certificates of sponsorship), based upon the objective application of the number of points achieved by a particular overseas migrant. For compliance checks to be more easily carried out by the Home Office, any employer wishing to employ overseas migrants pursuant to certificates of sponsorship is required to hold a sponsor's licence permitting it to do so. A complex series of passwords and user IDs are provided to each employer sponsor and all relevant information about an overseas migrant is held in a central government computer bank called the Sponsor Management System.
In view of the radical nature of these changes, they took over three years to be implemented. By November 2008, the PBS with its five tiers had been rolled out and since then the most radical changes to the employment categories of the UK immigration process have been operational.ii PBS – the current regime
Although some employment routes do not fall within the PBS and the five tiers, the vast majority do, as set out below:
- Tier 1 – for investors, entrepreneurs, those with 'exceptional talent' and graduate entrepreneurs (the entrepreneur and graduate entrepreneur routes are now closed to new applicants);
- Tier 2 – applicable to highly skilled employees performing graduate level roles, divided into subcategories of intra-company transfers (ICTs), 'new recruits' and the highly paid;
- Tier 3 – unskilled jobs (Tier 3 has never been implemented, probably because of the availability of unskilled labour from the EU. Despite speculation that this may change after the UK leaves the EU, the government has confirmed it does not intend to do so);
- Tier 4 – students; and
- Tier 5 – myriad different categories, including those permitted to come to the UK under youth mobility schemes (primarily replacing the old working holidaymaker route available to young Commonwealth citizens), government-approved exchanges, those wishing to undertake internships and those of high ability in the arts, sports and entertainment sectors.
In any of the above categories, only those who secure the requisite number of points are eligible to seek entry to the UK for the purposes of employment or study. Of the employment-based routes, the following are the most prevalent and the most widely used by UK companies who need to employ migrant labour.iii Employment categoriesTier 2
These applications are sponsored by employers who either wish to transfer their overseas employees to the UK or to hire a new recruit. This category is divided into two primary types: Tier 2 (General) for new hires and highly paid individuals and Tier 2 (ICT) for overseas employees of a UK business. These categories are themselves subdivided as follows:Tier 2 (ICT)
The Tier 2 (ICT) category supports inward investment and trade by allowing multinational employers to transfer key company personnel from overseas to their UK branch. It used to be further divided into 'short-term staff' and 'long-term staff', but, in April 2017, the government closed the short-term route to new entrants.
Within the Tier 2 (ICT) category, the role must be graduate level, which will normally require the overseas migrant to be educated at least to bachelor's degree level. An overseas migrant must earn at least £41,500 annually to be eligible for a certificate of sponsorship in this category. If they are to return to the UK under Tier 2, such overseas migrants must return to their employer overseas for a further 12 months before re-qualifying for entry in this category. A Tier 2 (ICT) migrant earning between £41,500 and £119,999 per year is initially permitted to enter the UK for up to five years. Those earning £120,000 or more are permitted to stay for a maximum of nine years.
However, Tier 2 (ICT) migrants who entered the UK in this category under the Immigration Rules in force after 6 April 2010 are not permitted to obtain ILR, irrespective of their new salary levels. This requirement is intended to discourage overseas migrants coming here purportedly to fill temporary labour shortages but whose real intention is to settle permanently in the country.
This restriction was further tightened in April 2011 when rules were introduced that required Tier 2 (ICT) overseas migrants to leave the UK after they had lived and worked in this category for five years (or, since April 2017, nine years for those earning in excess of £120,000 a year). The basic premise remains the same, however, as even these highly paid executives will be required to leave the UK at the end of this extended period, unless they switch to Tier 2 (General) status in the meantime.
Tier 2 (ICT) migrants are exempt from the requirement of having to establish their English language ability but are required to pay the Immigration Health Surcharge for themselves and their dependants. Their employers must pay the Immigration Skills Charge (introduced from April 2017) at £1,000 per year of visa validity (£364 for small company sponsors).
There is a requirement for Tier 2 (ICT) migrants to have been employed by the overseas entity of the UK sponsor for a minimum of 12 months. This requirement is waived where the individual earns in excess of £73,900 per annum; if the employee is being transferred as a graduate trainee, the requirement is a minimum of three months' employment.Tier 2 (Graduate Trainee)
This category is for graduate trainees within, usually, a multinational company, who have been employed abroad for at least three months and who are being transferred to the UK parent, branch or subsidiary of the same organisation as a part of a structured graduate training programme. The programme must define the progression towards a managerial or specialist role and will require the UK employer to provide a detailed training programme that meets the requirements of this subcategory.
The role must also be graduate level, and the maximum period of stay is 12 months. Similarly to other subdivisions of the ICT category, the graduate trainee is not permitted to switch categories to another role within Tier 2.Tier 2 (General)Unrestricted certificates of sponsorship
This subcategory was introduced on 6 April 2011. No one who falls within this category is subject to the annual immigration cap of 20,700 certificates of sponsorship (also introduced on 6 April 2011), which otherwise applies to Tier 2 (General) migrants. Those who fall within the unrestricted category are:
- an overseas migrant who is currently in the UK working with the benefit of a Tier 2 (General) certificate of sponsorship, where employers wish to extend the stay of that employee;
- where the overseas migrant is currently employed in the UK under Tier 2 (General) and now wishes to change employer – subject to resident labour market testing;
- where a certificate of sponsorship is required for a migrant who is in the UK in another immigration category and who wishes to switch in-country into Tier 2 (General) where this is permitted under the Immigration Rules, except dependants of Tier 4 migrants;
- where an overseas migrant (whether within the UK or abroad) intends to take up a UK role where the annual salary for the job meets the 'high earner' threshold (currently £159,600 or more) – such an individual is also exempt from the requirements of resident labour market testing; or
- doctors and nurses who fall under Standard Occupation Classification (SOC) codes 2211 and 2231, such as GPs, consultants, surgeons and health visitors.
Those who have recently graduated from a UK university can switch from Tier 4 into the Tier 2 (General) category of stay without the prospective employer having to conduct a labour market search. (This is in substitution for the now closed Tier 1 (Post Study Work) route, although, at the point of entry, the major distinction is that the graduate must be sponsored by a UK employer before being permitted to remain in the country).Restricted certificates of sponsorship
This 'restricted' category applies to all migrants wishing to take up Tier 2 (General) employment in the UK who do not fall into the unrestricted category. Unlike every other certificate of sponsorship, the sponsoring employer is unable to assign a certificate of sponsorship to that individual without prior approval from the Home Office. The employer must make representations to a Home Office panel, which sits monthly, and that panel will decide whether or not to give approval to the assignment of a particular certificate of sponsorship. Upon the assumption that all other criteria are met, including minimum salary and skills levels for the job and the satisfactory outcome of a labour market search, it is inevitably salary levels that may finally determine whether a particular overseas migrant will be awarded a certificate of sponsorship.
As the annual limit of 20,700 is applied on a monthly basis, realistically it is only those with the highest salary level (or those in occupations where there is a skills shortage) whose applications will be approved. Accordingly, an inbuilt bias exists in favour of commercial sectors that traditionally pay high salaries, such as financial services, law and accountancy, and will be to the detriment of the manufacturing sector, or those regions with relatively high levels of unemployment or low prevailing salaries, or both.
Applications for a restricted certificate of sponsorship are submitted by employers via the Home Office's computer system and the outcome of each application will be notified within a matter of days of each monthly panel meeting.
The monthly cap was not reached until mid 2015, primarily because of the lengthy and complex process required before a sponsor is permitted to assign a certificate of sponsorship. The monthly cap was then reached again in December 2017 and in all subsequent months until August 2018, with the effect that any roles with salaries below £50,000 per annum were rejected. The cap has not been reduced since its inception, and whether it will be reduced in the future will undoubtedly be subject to the headway being made by the government in reducing net migration figures.
In April 2018, the government took the decision to remove doctors and nurses from the annual cap restrictions provided that they fall within SOC codes 2211 and 2231. This therefore means that these certificates of sponsorship presently fall within the unrestricted category and do not require Home Office approval before being assigned to the migrant. Following this change, the monthly cap has not been exceeded.
The Home Office considers requests for restricted certificates of sponsorship and awards points based on the annual salary offered. Before April 2019, salaries above £45,000 were arranged in bands of £5,000. Each salary band must be approved or denied in its entirety. In the months where the cap was reached, the decision had to be made as to which salary band would be the cut-off point. As a result of the over-subscription for restricted certificates of sponsorship between December 2017 and August 2018, the Home Office has changed the salary bands to one point per £1,000 of gross annual salary to reduce the risk of large numbers of restricted certificates of sponsorship being rejected.
There are certain common themes and requirements applicable to all Tier 2 migrants. In addition to securing sufficient points for salary levels and academic skills levels, with the exception of Tier 2 (ICT), every overseas migrant must establish English language proficiency. The salary to be paid to any Tier 2 migrant must also be no less than the prevailing salary applicable to that role, as specified within the Home Office's SOC codes. These were revised and simplified in April 2014 and are likely to be reviewed annually.
The April 2014 revisions to the SOC codes were wide-ranging. The number of SOC codes was substantially reduced and for most (although not all) the prevailing salary rates were increased. They were further increased in 2017, and in April 2019 the new salary rates were both increased and decreased to reflect the latest available occupational salary data for each job type. The list of shortage occupations was reduced, primarily by removing a number of healthcare professionals from the previous list, with the exception of nurses, who were reinstated to the list in early 2016. All jobs must meet the academic qualification RQF6, which applies to graduate level roles.
Overseas migrants must satisfy the Home Office that, for a minimum period of three months prior to applying for their visas, they have access to minimum cash amounts (known as maintenance) held by them in a regulated banking institution. In the case of certificate of sponsorship holders, the minimum sum is £945, and for each dependant (i.e., spouse and any children under the age of 18) this figure increases by £630. In the case of A-rated sponsors (i.e., employers), the relevant maintenance levels for both the employee and dependants can be 'guaranteed' by that employer, the effect of which is that the overseas migrant does not personally have to provide evidence of minimum cash savings. B-rated sponsors, however, are not permitted to give such a guarantee, and any overseas migrant wishing to be employed by a B-rated sponsor must evidence the minimum cash savings amounts. Employers of Tier 2 migrants are no longer required to write a separate letter to confirm that they will guarantee maintenance for those dependants, in circumstances where the dependant is applying for his or her visa at the same time as the primary applicant.Resident labour market test
The majority of overseas migrants seeking to enter the UK labour force as Tier 2 (General) migrants must satisfy the resident labour market test (RLMT). Essentially an employer will need to advertise the job being offered if it is not on the shortage occupation list or if some other exemption does not apply. Employers are required to place two adverts each running for 28 days either continually or in two stages. If advertised in two stages, each advert still needs to run for a total of 28 days and neither stage can be less than seven days. The purpose of the RLMT is to ensure that there are no suitable workers either from within the EU or already living permanently in the UK. In practice, the process of advertising has involved all such roles being advertised on both the government recruitment website (currently known as Find a Job) and a second form of approved media outlet. HC1078 widened the websites that may be used for graduate recruitment from a specified list of four to any freely available, prominent graduate recruitment website.
The main exceptions to the RLMT are those who are high earners (i.e., those who will earn £159,600 per year or more), recent graduates from UK universities or those whose occupation falls within the shortage occupation list. As of April 2012, those occupations that carry a salary in excess of £72,500 per year (increased to £73,900 from 8 April 2017 onwards), as well as those in designated PhD-level occupations, are also exempt from having their jobs advertised on Find a Job. However, such jobs must still be advertised on two appropriate advertising media acceptable to the Home Office.
There will be a waiver of the RLMT and an exemption from the Tier 2 (General) limit for posts that support the relocation of a high-value business to the UK or a significant inward investment project. The qualifying criteria for this is the sponsor must have registered with Companies House no more than three years ago and have its headquarters and principal place of business outside the UK. The project will require inward investment of new capital expenditure of £27 million or the creation of at least 21 new UK jobs.
To qualify for a Tier 2 certificate of sponsorship (whether ICT, unrestricted or general), an overseas migrant must secure 50 points under the attributes provisions (i.e., the basis on which the certificate of sponsorship is assigned, salary levels), in addition to 10 points for English language proficiency (not applicable to ICTs) and 10 points for meeting the maintenance requirements. Points are no longer awarded for academic qualifications, because of the revision of the SOC codes, which only permit certificates of sponsorship to be assigned for graduate-level roles that meet the RQF6 standard. The jobs that meet this requirement are all set out within the SOC codes set out in Appendix J of the Immigration Rules.
Set out below is the current points table applicable to overseas migrants hoping to qualify for a Tier 2 job. This table is likely to be revised annually, primarily in relation to prevailing or minimum salary levels. In this regard, it should be noted that the only salary levels permitted to be taken into account are those that are guaranteed to be paid, and not those that vary, such as discretionary or performance-based bonuses.
|Tier 2 (General) and Tier 2 (ICT): revised points|
|Job offer in a shortage occupation||30|
|Transitional arrangements (in-country only)||50|
|Job offer that passes a resident labour market test||30|
|Switching from a Tier 4 study category (in-country)||30|
|Extension in the same job at the same (or higher) salary (resident labour market test not required) (in-country)||50|
|Annual salary of £159,600 or more (i.e., high earner)||30|
|£30,000 and above (Tier 2 (General)) from autumn 2017||20|
|£20,800 and above (Tier 2 (General) new entrants only, or medical radiographers; nurses; secondary education teaching professionals of maths, physics, chemistry, computer science and mandarin; paramedics)||20|
|£41,500 and above (ICT)||20|
|£23,000 and above (Tier 2 (ICT – Graduate Trainee))||20|
|Migrants must be able to prove their English language ability (Tier 2 (General))||10|
|Migrants must show evidence of having held at least £945 in a bank account for three months leading up to the date of application, or that their A-rated sponsor has confirmed that they will maintain and accommodate the migrant for the first month of employment in the UK (more is required if migrants have dependants)||10|
With effect from April 2016, the Immigration Health Surcharge has been extended to persons who were previously exempt, namely Tier 2 (ICT) migrants as well as nationals of Australia and New Zealand, who were also previously exempt. Additionally, those prospective migrants who are coming from certain countries where tuberculosis continues to be a major health risk (such as China, Hong Kong, India, the Philippines, Russia and Sri Lanka) are required to obtain from an approved medical practitioner a certificate to confirm that they are not suffering from tuberculosis.
Unlike Tier 2 (ICT), overseas migrants employed in the UK with the benefit of a Tier 2 (General) certificate of sponsorship (whether 'restricted' or 'unrestricted') are permitted to apply for ILR once they have lived in the UK and worked in a Tier 2 category for five years. They will, however, be required to establish at that time that they still meet all the criteria applicable for continuing approval of their Tier 2 employment, including confirmation from their employer that they are still required for the job. This requirement was introduced on 6 April 2011.
In addition, from April 2016, all Tier 2 (General) ILR applicants must meet a minimum pay threshold as well as the prevailing wage for their particular job. For applications submitted after April 2019, the minimum threshold to be met is £35,800 per annum. This figure will increase to £36,200 per year for those applying from April 2020 and will increase each year. The only exception to the financial threshold will be for those overseas migrants doing a job on the shortage occupation list, those in specified PhD-level jobs and ministers of religion.
Additionally, although a Tier 2 (General) migrant is eligible to apply for ILR after five years in the country, the maximum permitted period of stay under this category is six years. From April 2014, Tier 2 (General) migrants can obtain a maximum initial period of entry of five years. The effect of this is that if Tier 2 (General) migrants have not applied for ILR during their six-year period of stay, they will have to leave the country and will not be permitted to return here to work until at least 12 months have elapsed following their departure (unless they are 'high earners', with an annual salary in excess of £159,600).
Broadly, Tier 2 (ICT) migrants or Tier 2 (General) migrants who leave the UK once their visa has expired, are subject to the 12-month 'cooling-off' period. The effect of this is that such individuals will not be able to apply to return to the UK in a Tier 2 category until after 12 months has elapsed either from the date of expiry of their visa or from the time they left the UK, if earlier. This situation may arise where a migrant's employment or assignment has been terminated before visa expiry and the Home Office has then curtailed his or her leave to stay in view of the employment coming to an end.
However, there is an exemption in the cooling-off period in that any individual who has been working in the UK pursuant to a certificate of sponsorship assigned for three months or less, is no longer subject to the restriction of 12 months before being able to return here to work.
A final point on procedural matters is that if Tier 2 migrants are in the UK and fail to apply to renew their stay before their visa expiry, there is a 14-day 'grace period' given to them so that there will be no adverse effect on their immigration history provided that they do apply to renew their status (in country) within that 14-day period, with persuasive reasons for the delay.
When applying for ILR, overseas migrants are permitted to spend as many as 180 days in each year out of the UK during the prescribed five-year period without continuity of stay being broken. The effect of this is that, provided that the overseas migrant does not spend more than 900 days out of the UK during the five years leading to eligibility for ILR, and provided that these absences do not exceed 180 days in a year and are all work-related, approved annual leave or for compassionate purposes, ILR can still be approved. This requirement was first introduced in December 2012 to correct inconsistencies in approach by Home Office caseworkers when considering ILR applications and whether discretion on length of absences should be exercised or not. For periods of leave granted after January 2018 that will contribute to the qualifying period for ILR, the 180-day absence limit is calculated on a rolling basis and the absences will be taken from within any 12-month period rather than a given year. Leave issued before this date will still be calculated in consecutive 12-month periods. The same also applies to PBS dependants if applying after January 2018.
These changes are part of the government's continuing wish to separate the historical link between temporary employment and permanent residence. Whether or not any additional changes in this regard will occur is subject to ongoing consultation.
From April 2017, the requirement to provide a criminal-record certificate was extended to include Tier 2 (General) entry clearance applicants coming to work in the education, health and social care sectors, partners of the main applicants as above and partners applying overseas to join an existing Tier 2 (General) migrant working in one of those sectors. Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuous or in aggregate) in the past 10 years prior to their application, while aged 18 or over. Certificates from the applicant's most recent country of residence will normally only be considered valid if they have been issued no earlier than six months before the application date. Certificates from countries prior to the applicant's most recent country of residence must normally cover the entire period of residency (up to 10 years prior the application date) but will otherwise be considered valid indefinitely.Tier 5
This route has been subdivided into three primary categories and its purpose is to enable individuals to enter the UK for short periods to take up temporary work before returning to their home country. No immigration cap has been imposed upon the Tier 5 route; in most instances, it would be futile to do so, in view of the temporary nature of the roles that overseas migrants will fill. The three categories are as follows.Youth mobility worker
This largely mirrors the (now defunct) working holidaymaker scheme, which permitted young Commonwealth citizens to enter the UK for up to two years for the purposes of temporary employment and taking an extended holiday. The requirements under the new scheme remain much the same, as it enables applicants between the ages of 18 to 30 from certain countries to enter and work in the UK for two years. However, the requirement that such individuals also 'take a holiday' no longer applies. The countries that benefit from this scheme are currently limited to Australia, Canada, Hong Kong, Japan, Monaco, New Zealand, South Korea and Taiwan, along with British overseas citizens, British overseas territories citizens and British nationals (overseas).
The number of applicants from each country is limited, as follows: Australia, 31,000; New Zealand, 14,000; Canada, 6,000; and the remaining countries are allocated 1,000 places each. The selection process in Taiwan is a lottery-based scheme split into two ballots in January and July each year. There is no allocation restriction for British citizens or nationals mentioned above.Temporary worker
This category was created to enable overseas migrants to take up temporary employment, such as an internship or a graduate training programme. Applicants need to be issued with a certificate of sponsorship by an 'overarching body' that has previously been approved by the Home Office. There are currently approximately 50 registered overarching bodies permitted to assign certificates of sponsorship to suitably qualified applicants, all of which must be independent from the employers with whom the overseas migrants will work or undertake their internship programme.
Government authorised exchanges (GAEs) also fall into this broad category. However, the maximum period of stay permitted to applicants coming for a work experience programme under Tier 5 (GAE) is 12 months. Work experience programmes that fall within this category will be work experience and internships run by the Bar Council, BUNAC, the Commonwealth Exchange Programme, Fulbright UK/US Teacher Exchange Programme and Tier 5 intern schemes generally.
However, when applicants are seeking entry for GAE research and training programmes they will continue to be permitted to stay in the country for up to 24 months. Programmes that benefit from the longer period of stay include Chatham House overseas visiting fellowships, Commonwealth scholarship and fellowship plans, sponsored researchers, UK–India education and research initiatives and the US–UK Education Commission (also known as the US–UK Fulbright Commission).Creative and sporting individuals
This enables artists, entertainers or sportspeople to enter the UK to perform at a particular event, which may not necessarily be a 'one-off' situation, as it also includes actors taking part in theatrical productions that may last for a considerable period. In the case of sportspeople, they must be internationally established at the highest level and their presence in the UK must be regarded as making a significant contribution to a sports event or series of events. In each instance, the employer, or even a management company, agency or promoter, can assign the certificate of sponsorship. Where the artist or sportsperson intends to stay in the UK for less than three months, that individual may be exempted from obtaining a visa or entry certificate before coming here, unless that individual is a visa national (i.e., the citizen of a country for which a visa must be secured before entry to the UK is permitted for any purpose).iv Sponsor obligations
Since the introduction of the Immigration, Asylum and Nationality Act 2006, employers have been subject to an increasing range of obligations, including the requirement to ensure that an overseas migrant has correct work authorisation (through the legal right to work checks), in addition to compliance with numerous sponsorship duties. Along with the 2006 Act, civil penalties were introduced for employers, with fines of up to £20,000 for each unlawfully employed worker, and unlimited fines and up to two years' imprisonment for knowingly employing illegal workers.
Employers are required to check eligibility to work in the UK for each new overseas migrant before employment commences, and for those with limited entitlement to remain in this country (i.e., everyone except for UK citizens, EEA citizens and those who are settled here), annual checks were required on their continuing ability to work here. However, the right to work checks have been relaxed in that once the migrant has complied with the requirements to establish a right to work in the UK, there is no longer any requirement to check their immigration status annually and this can be deferred to either their visa expiry date or a date that their employment comes to an end, if earlier. That will reduce the regulatory burden on employers, particularly large employers, who find it difficult to deal with annual checks for a substantial and mobile workforce.
Once a UK employer has been issued with a sponsor's licence, the Home Office has the power to suspend, downgrade or even revoke the licence. This could have catastrophic consequences for any overseas migrant working in a Tier 2 capacity for that employer; for example, if the sponsor's licence is revoked with immediate effect, that employer is unable to continue lawfully employing that individual. The employee will then have their leave curtailed to 60 days, during which period they must seek alternative employment with a different sponsor, failing which he or she will be required to leave the country, together with any family members (and may be subject to the cooling-off period).
The Home Office has not identified all the circumstances in which it will suspend, withdraw or downgrade a sponsor's licence, but when considering appropriate action, it will consider the seriousness of the sponsor's failures; whether the sponsor's acts or omissions are part of a consistent or sustained record of non-compliance; and whether the sponsor has taken any remedial action to minimise those failures. Suspension of a sponsor's licence will prevent that employer from assigning any new certificates of sponsorship, and if the employer attempts to assign a new certificate of sponsorship, it is likely that its sponsor's licence will be revoked.
The Home Office will revoke a sponsor's licence for a variety of reasons, including where it stops trading for any reason (including insolvency); where it has been issued with a civil penalty for employing one or more illegal workers, and the fine imposed for at least one of those workers is the maximum amount; or where a civil penalty has been imposed and has not been paid within 28 days.
A sponsor's licence will normally be revoked in circumstances where the employer is convicted for any offence introduced by a variety of immigration statutes, including the Immigration Act 1971, the Immigration Act 1988, the Nationality Immigration and Asylum Act 2002, and the Immigration, Asylum and Nationality Act 2006. Licences will also be revoked for any offence relating to trafficking for sexual exploitation or any other offence that shows that a sponsor poses a risk to immigration control.v Non-PBS employment categories
Very few of the previous employment-based immigration routes have survived the introduction of the PBS. However, the most important that have done so are as follows.Domestic worker in a private household
Although this route for entry to the UK has been in existence for many years, it was only in September 2002 that it formally became part of the UK's Immigration Rules. Providing that the appropriate criteria were met, overseas domestic workers in a private household could accompany their employer to the UK for an initial period of one year, which would then be extended annually (if the criteria were still met), until they became eligible for ILR after five years' continuous employment in this category. With effect from 6 April 2012, the maximum permitted stay for such an individual is six months for new applicants and only then in circumstances where the overseas employer is coming to the UK as a visitor. No extensions beyond six months are now permitted, and this route to settlement has been extinguished. Prior to April 2012, a domestic worker in a private household could bring his or her dependants to the UK, who themselves were permitted to take up employment. Under the new regime, domestic workers are no longer permitted to be joined by their dependants.Commonwealth citizens with UK ancestry
This is the final remaining immigration benefit reserved only for Commonwealth citizens, and it remains in place because of much diplomatic lobbying by, primarily, the governments of Australia, Canada and New Zealand.
The requirements that the applicant must meet are that he or she is a Commonwealth citizen, has at least one UK-born grandparent and intends either to take employment or seek employment upon arrival in the UK.
This route is not available to those who have no wish to work but merely have a UK-born grandparent. The applicant must either have a job, or must intend to find one, before the entry certificate will be issued.
The application is submitted to a British consulate in the applicant's home country or country of residence and, if approved, the visa will be valid for five years. Upon the expiry of that five-year period, the applicant and immediate family members (spouse and children under 18 years of age) are eligible for ILR, provided they are either working at the time of application or can evidence attempts to find work in the previous five years.Representatives of overseas businesses
The purpose of this category is to enable a senior executive of an overseas company or firm to come to the UK to establish a wholly owned subsidiary or register a UK branch for that overseas parent company. There must be no existing branch, subsidiary or other representative in the UK, although if the UK entity merely has a legal existence, but does not employ staff or transact any commercial activities, the sole representative route may still be available.
The prospective representative (not the company) must apply for entry clearance to the local British consulate in his or her country of normal residence, and supporting material will include:
- a full description of the parent company's activities;
- a UK job description and proposed UK salary levels;
- evidence that the sole representative is an employee of the parent company outside the UK and has full authority to take operational decisions on its behalf in the UK; and
- evidence that the sole representative is not a majority shareholder in the parent company.
If the visa is granted, it will be approved for two years initially, during which period the representative is expected to establish a UK commercial presence for the overseas company and to work full time in its interests. Providing these criteria are met, this status can be extended for three further years, following which the sole representative (and their immediate family) will be eligible to apply for ILR.
This route is also open to employees of an overseas newspaper, news agency or broadcasting organisation being posted on a long-term assignment as a representative of their overseas employer, where there is no requirement to take operational decisions. Those qualifying under the subcategory for employees of overseas news or media organisations will also be granted two years' leave, during which they may only work for the employer in question. There is also an English language requirement for media employees.'Permitted paid engagements' visitor category
The UK's Immigration Rules have only rarely permitted 'short-term working' activities, and never where the individual receives remuneration or a fee for their services.
However, with effect from April 2012, a new visitor category was established to deal with prearranged specific activities where the overseas visitor is permitted to enter the country as a visitor and to receive a fee. This route is restricted to those coming for one month or less and no formal sponsorship from any UK employer or institution is required. Examples of permitted activities for a visitor in this category of stay are:
- giving a lecture, examining students and participating in or chairing selection panels;
- overseas designated air pilot examiners assessing UK pilots to ensure they meet national air regulatory requirements of those countries;
- providing advocacy in a particular area of law (as a qualified lawyer) in a court or in a tribunal hearing, arbitration or other form of alternative dispute resolution in the UK;
- professional artists, entertainers or sportspersons carrying out an activity relating to their main profession (e.g., artists exhibiting and selling their work);
- authors engaged in book signings;
- entertainers giving a one-off or short series of performances; and
- sportspersons providing, for example, guest media commentaries in their chosen field.
A visa will be required for visa nationals, although not for any other individual who would not normally require a visa to secure entry to the UK. However, non-visa nationals must still be able to satisfy an immigration officer at a UK port of entry that their activities clearly fall within the parameters of the new visitor category.Business visitors
There are currently 15 routes for visitors who wish to enter the United Kingdom. These can be confusing, particularly the frequently narrow distinction between 'working' and 'entering for business purposes'. The former requires express permission to work in the UK whereas the latter does not. From late April 2015 permission to enter the UK as a visitor may be granted in the following reduced categories:
- visitor (standard), which consolidates the existing visitor categories of general, business, child, sport, entertainer, visitors for private medical treatment, approved destination status visitors, prospective entrepreneur and visitors undertaking clinical attachments;
- visitor for marriage and civil partnership;
- visitor for permitted paid engagements; and
- transit visitor.
Additionally, the student visitor route has changed to 'a short-term study' route and this applies in conjunction with a new category of child student visitor as well as a revised route for parents of children at school in the UK. Prior rules that permitted the parent to have permission to remain in the UK to look after a child or children under the age of 12 who are attending a private school have been substantially changed. This is now limited to the parents of Tier 4 (Child) students, which will accordingly exclude those whose children are studying at an independent school but have permission to stay here other than pursuant to Tier 4. The parent to whom this applies must be the sole carer in the UK.NHS surcharge
A major increase in the cost of recruiting non-EEA labour was introduced in April 2015. The NHS surcharge (as it has become known) was initially set at £200 a year for temporary migrants (with a primary applicant or their dependents or both) and £150 a year for students. This was increased on 8 January 2019 to £400 and £300 per year, respectively. Dependants are charged the same amount as a primary applicant and it must be paid for the entire period of leave being requested at the time that these applications are being applied for. Duplicate payments for the same period, for example when an applicant changes their immigration route part-way through their current visa, are refunded.
The NHS surcharge was implemented for ICT migrants from 6 April 2017. In simple terms, a single applicant who applies for a visa to work in Tier 2 status for five years has to pay an additional £2,000 at the point of submitting their visa application.
The NHS surcharge is paid by all non-EEA nationals who apply to come to the UK either to work, study or join family for a limited period of more than six months and will also be paid by the same individuals who are already in the UK and apply to extend their stay. This now includes Australians and New Zealanders, who were previously exempt.
The exemptions to the requirement to pay the surcharge are:
- tourists who enter the UK on a tourist visa will not pay the surcharge although they will remain directly chargeable for hospital treatment should they need to utilise the services of the NHS while in the UK. However, the NHS will charge each such individual 150 per cent of the cost of the treatment and therefore private travel and health insurance should be taken out;
- asylum applicants;
- victims of human trafficking;
- dependants of a member of the armed forces;
- those applying for permission to enter the UK in connection with an EU obligation, such as an association agreement;
- those applying for ILR; and
- those applying for a visa to the Isle of Man or Channel Islands.
Although there is certain logic to imposing this surcharge, it is an additional burden imposed on large employers (in particular) who operate in the global marketplace and who recruit hundreds, if not thousands, of non-EEA migrants.
Additionally, applicants for visas who will stay in the UK for more than six months must secure tuberculosis certificates if applying from certain countries where tuberculosis is an ongoing health risk.Immigration skills charge
An additional charge is now payable by employers who employ migrant workers in skilled roles under the Tier 2 sponsorship scheme on or after April 2017. The skills charge is set at £1,000 per employee per year, and at a reduced rate of £364 for small or charitable organisations.
Companies that have fewer than 50 employees, or turnover of less than £6.5 million and where their balance sheet is no more than £3.26 million or they are charitable organisations will pay a lower skills charge of £364.
The skills charge was announced alongside a number of changes to the Immigration Rules following the MAC's report of January 2016 advising the government on how to 'significantly reduce the level of economic migration from outside the EU'. It is notable that this pre-dated the June 2016 referendum.
The skills charge will not apply to a sponsor of a non-EEA national who was sponsored in Tier 2 before 6 April 2017. Furthermore, it will only be imposed on main applicants so it will not affect dependant family members. In practice, the skills charge increases the cost of a five-year Tier 2 sponsorship by £5,000. Essentially it is designed to reduce demand on the scheme and result in additional opportunities for resident workers.Right to rent
With effect from February 2016, private landlords are required, pursuant to the Immigration Act 2014 and the 'compliant environment' policy (formally 'hostile environment' until Sajid Javid was appointed Home Secretary in April 2018), to conduct immigration status checks on their tenants. Financial penalties of up to £3,000 can be imposed on landlords who fail to undertake the immigration checks or who rent property to a person whose immigration status (or lack of one) means that they do not have a 'right to rent' in the UK.
Immigration status checks must be conducted by either the landlord or lettings agent before entering into a residential tenancy agreement with any adult who is to occupy the premises as their main or only home. In the first six months of operation, the Home Office Landlords Checking Service right to rent aid was used over 11,000 times and the helpline took over 800 calls to support landlords, agents and tenants in implementing the scheme.
The right to rent provisions were strengthened by the Immigration Act 2016, which introduced mechanisms for landlords to evict illegal migrant tenants more easily and, in some circumstances, without a court order. In practice, landlords will request a Notice of Letting to a Disqualified Person (NLDP) from the Home Office, which, if issued, confirms the tenant is disqualified from renting in the UK as a result of their immigration status. On receipt of this, the landlord will be expected to take action to ensure that the illegal migrant leaves the property.
However, on 1 March 2019, a High Court ruling stated that the right to rent policy was certain to cause discrimination on the grounds of race and nationality. The Court made a declaration of incompatibility with human rights. This is supported by various reports, one being from research undertaken by the Residential Landlords Association in 2018 that confirmed 42 per cent of landlords, as a result of the policy, were less likely to agree to a tenancy with a person who did not hold a British passport. The government has appealed this ruling and, at the time of writing, is reviewing its policy. Nevertheless, the right to rent policy continues in operation and landlords and agents remain bound by its obligations.Immigration checks on bank accounts
Wider enforcement measures with respect to banks and building societies have made it even more problematic for illegal migrants to live and work in the UK. Measures introduced by the Immigration Act 2016 provided the Home Office with an escalating range of options, including where a current account holder is confirmed to be unlawfully present in the UK. This provision was implemented in January 2018 and placed a burden on banks and building societies to check the immigration status of personal bank account holders in the UK and inform the Home Office where legal right of residence is not found. The Home Office will then conduct its own checks and may apply to the courts for an order instructing the bank or building society to freeze the individual's accounts. This further enables the Home Office to prosecute individuals for the criminal offence of working illegally and recovering wages as proceeds of crime.
The Home Office states that (at this stage) only details of illegal migrants who are liable for removal or deportation from the UK or who have absconded from immigration control will be checked (against a list provided by anti-fraud organisation Cifas). However, following the Windrush scandal, immigration checks on bank accounts were suspended in May 2018 and, at the time of writing, remain so.Right to work checks
Since 2008, employers have been required to complete legal right to work checks on all employees reporting for work on or before their start date to prevent illegal working. This involves a manual check of an employee's identity document and evidence of entitlement to work in the UK, such as with a British or EU passport or a visa that permits work. Carrying out a compliant right to work check (with appropriate document retention) provides the employer with a statutory excuse, which can be used as either a partial or complete defence, if the employee has been working illegally. Failure to carry out the required right to work check can result in the employer being subject to significant financial penalties or imprisonment.
From 28 January 2019, employers have been able to conduct legal right to work checks online. The online check is undertaken via the employer's online profile of the official government website and the Home Office will keep records of checks undertaken. Completion of a correct online right to work check, with appropriate record-keeping, provides the employer with a statutory excuse.
The online right to work check must be kept electronically or in hard copy on the personnel file (as per previous requirements) and must be kept for the duration of the migrant's employment, plus an additional two years from that date.Citizens of EEA countries
Following the substantial expansion of the EU in 2004, citizens of accession countries were permitted to work in the UK but subject to quite tight restrictions. These were further tightened following the accession of Bulgaria and Romania to the EU in 2009. However, since July 2018, there have been no restrictions imposed upon any citizens of EU or EEA Member States.