UK: Immigration Law Update - January 2010

Last Updated: 22 January 2010
Article by Nichola Carter

This update keeps you informed of new developments in immigration law.

Introduction of biometric processing for tier 2 in-country applications - a reminder

Regulations extending identity cards for foreign nationals (ICFN) to skilled workers came into force on 6 January 2010. All tier 2 applications made inside the UK now involve the enrolment of the applicant's biometric information (fingerprints and photograph).

The UKBA has increased the number of Home Office biometric enrolment centres to 11 and introduced a walk-in service at a limited number of Crown post offices nationwide where applicants will be able to enrol their biometric information. However, the walk-in service is currently available by invitation only and just for those submitting their application by post.

Applicants submitting their application for same day processing can only enrol their biometric information at one of the UKBA's public enquiry offices (PEO) of which only five are available nationwide (Croydon; Solihull; Sheffield; Liverpool and Glasgow - PEOs at Belfast and Cardiff do not currently offer a same day processing service). Appointments at the PEOs are scarce and at the time of writing it is not possible for general applicants to secure an appointment until around mid-February.

Once the application has been approved, migrants and their dependants will be issued with an ICFN which shows information on their immigration status, entitlements and restrictions on working or claiming public funds and clearly states whether or not the holder has a right to work in the UK. Migrants will need to ensure that they carry the card when travelling in and out of the UK as their passports will no longer be endorsed.

Employers will need to ensure that they ask for, check and take a copy of the identity card as part of their checks for prevention of illegal working. A new tier 2 application form and revised guidance have been issued – click here ( for more details.

Our team has been liaising with UKBA on measures to enhance the processing service which may include mobile units and premium facilities. We have also made strong representations on behalf of our clients that the current processes do not meet the needs of UK businesses. Until a more effective system comes into force, we are working with our clients on measures such as entry clearance applications which significantly reduce the waiting time.

New advice on sponsor takeovers and TUPE

In response to queries from sponsors under the points-based system, the UK Border Agency has produced additional advice on how sponsor licences and migrants are affected by company takeovers and other restructuring exercises such as mergers and demergers.

The advice explains what sponsors must do to regularise their sponsor status and ensure that any migrant workers are properly reported on - including actions on the sponsorship management system and tasks that the new employer must carry out to fulfil its duties if it takes on migrants.

The advice covers situations where:

  • an entire sponsor organisation is being taken over by another organisation;
  • part of an existing sponsor organisation is being taken over by another organisation; or
  • part of an existing sponsor organisation is splitting away to form a new organisation.

Click here ( ) to view the guidance in the sponsor takeover section of the UKBA website.

Clarification of sponsor guidance

The UKBA has recently given clarification of the sponsor guidance which says that ICTs must not be 'directly replacing' a settled worker.

It says that the term 'directly replacing' appears to be causing some confusion and the term 'not displacing' is considered to be more in line with the purpose of the intra-company transfer route. It suggests that giving cover for maternity leave and short holiday periods are a couple of circumstances where this may be applied.

'As long as the position to be filled is not a role which could normally be filled by a resident
worker, and the original incumbent is not being removed to make way for the new employee,
then this may be applicable under tier 2 (ICT).'

Tip of the month for sponsors

Intra-company transfers – prepare for increase in period of prior employment

In our September 2009 issue, we spoke about the Migration Advisory Committee's report on tier 2 and its recommendation, among others, that the qualifying period of prior employment overseas for ICTs be extended from six months to a full year. We also reported that the Government had announced that it would be adopting the MAC's recommendations. Our contacts at the UKBA say that this particular change is likely to be introduced in either February or April this year. You should therefore be analysing the eligibility of potential ICTs and considering whether to bring forward the assignment dates for those who may fall foul of this change.

Students under 18 years on exchanges and educational visits - changes to child visitor rules

The UK Border Agency has announced details of recent changes to the rules on foreign students under the age of 18 who come to the UK on exchanges and educational visits to schools of less than six months. With effect from 1 January, they now fall under the 'child visitor' rule and can seek entry for this purpose at the port of entry without a prior visa, unless of course they are a visa national.

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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