UK: UK Immigration – Latest Changes - December 16, 2015

We summarise below some recent changes to the Immigration Rules and Guidance and look at changes which may be implemented in 2016.

What's changed?

  1. 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
  2. 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
  3. 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.
  4. 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
  5. 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)
  6. 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

Other:

  • 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)
  • Restrictions on Tier 2 Migrants' dependent family members' right to work

Watch this space - we will continue to keep you updated and notify of the key changes that could affect your business.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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