UK: Immigration Law Update - March 2010

Last Updated: 29 March 2010
Article by Nichola Carter

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

In this issue we summarise the significant changes announced on Thursday 18 March, most of which will come into force on 6 or 7 April 2010. Many of these changes to the points based system are based on recommendations made in recent reports by the Migration Advisory Committee. Updated guidance will be published by UKBA on 6 April reflecting these changes.

Changes to the sponsor management system introduced on 22 February 2010

On 22 February 2010 UKBA introduced changes to the sponsorship management system affecting tier 2 and tier 5 sponsors. From that date they have been able to undertake the following:

  • create, assign and pay for certificates in batches;
  • inform UKBA of minor changes to a Certificate of Sponsorship before it is used to apply for entry clearance of leave to remain;
  • create a single Certificate of Sponsorship or a group or batch certificate based on a worker's or group's previous certificate.

Changes to tier 1 (highly skilled workers) with effect from 6 April 2010

  • New points table - those with Bachelors degrees are now eligible again under tier 1 (general), as are high earners without formal qualifications

    The main changes are the reintroduction of the award of points for Bachelor degrees and the recalibration of the points awarded for earnings and age. The new table increases the minimum threshold for earnings to £25,000 and also allows applicants with very high previous earnings (£150,000 or above) to come to the UK under tier 1 (general), even if they have no formal qualifications at a high level. Click here for the revised table.
  • Grants of leave - the present three years plus two years grants of leave will change into grants of leave for two years followed by three years

    Applicants will initially be granted leave under tier 1 (general) for two years, rather than the current three years. This is so that UKBA can verify at an early stage that they are engaged in highly skilled work. After two years, tier 1 (general) migrants will be able to apply to extend their leave for a further three years. However, in order to prevent this new provision being used to avoid the Governing Body Endorsement requirements in place for professional sportspersons who come to the UK under tier 2 or tier 5, tier 1 (general) migrants will not be allowed to take employment as a professional sportsperson (including as a sports coach). These changes will not affect those already here with leave under tier 1 (general) granted before 6 April 2010.
  • Transitional arrangements – the existing rules will continue to apply for all those currently having permission under tier 1 (general)

    The new points table will not apply to migrants who are in the UK in the tier 1 (general) category, with leave granted before 6 April 2010, and also the following immigration categories:
    • the Highly Skilled Migrant Programme (HSMP)
    • writers, composers and artists
    • self-employed lawyers
  • Recognising professional qualifications – no changes to the rules for point scoring for professional qualifications
  • Doctors in training - restriction on working as a doctor in training extended to working as a dentist in training

    The restriction will be amended so that it also applies to working as a dentist in training. It will also not apply to anyone who has a degree in medicine or dentistry from a recognised UK institution and graduates of UK medical schools will be able to switch into tier 1 (post study work) within 12 months of completing their foundation programme, rather than 12 months of
    completing their UK medical degree. This will allow a migrant with a UK medical degree to undertake their foundation programme training in tier 4 and then switch into tier 1 (post-study work) as they begin speciality training or training as a GP.

Changes to tier 2 (skilled workers with a job offer) with effect from 6 April 2010

Changes are being made to the tier 2 (general) and tier 2 (intra-company transfer) categories. There are no changes to tier 2 (ministers of religion) or tier 2 (sportsperson). Further changes to intra-company transfers are being made by introducing new sub-categories.

  • Revised points table – minimum prospective earnings of at least £20,000 required except for jobs in shortage occupations

    The table has been recalibrated so that only jobs that pay a prospective salary of at least £20,000 will score enough points. This does not apply to jobs in shortage occupations. Click here for the revised table.

    The UKBA has not followed the MAC's recommendation to introduce a separate list of key public service occupations that attract extra points, saying that in its view such a list would complicate the system and would undermine the shortage occupation list.
  • Extension applications

    To qualify for an extension of leave to remain, an applicant needs a Certificate of Sponsorship to continue working in the same job for the same sponsor. They must also be paid at least the same, or higher, salary than that shown on their Certificate of Sponsorship for their previous grant of leave. Their salary must also be at least equal to the current appropriate rate for the job, which may have risen since their previous application. If they meet these requirements, they will score full points.

    As at present, changes of employment will be considered in the same way as initial applications, and will be subject to the new points table.
  • Allowances

    The UKBA has not followed the MAC's recommendation that allowances be scaled down when calculating points for prospective earnings.

    It has also clarified that sponsors cannot 'gross up' tax free salaries and allowances to create an artificial figure. In all other respects, no changes are being made to the treatment of allowances but the UKBA will monitor the findings of compliance visits and keep the policy under review if concerns about abuse of allowances prove to be correct.
  • Changes of employment – more objective criteria for assessing what amounts to a change of job. The test is - is it still within the same SOC code?

    The UKBA will clarify its policy on when a new tier 2 application is required because of changes of employment. The revised guidance will provide clearer, more objective instructions for cases in which a migrant's job is changing but they are remaining with the same sponsor. A new application will not be required if the migrant is changing jobs, but remaining with the same sponsor and within the same Standard Occupational Classification (SOC) code.

    There will be two exceptions:
    • If the migrant's salary reduces below the level stated on their Certificate of Sponsorship (other than company-wide reductions defined as acceptable in the sponsor guidance, or reductions due to maternity or adoption leave), a change of employment application will be required. A change of employment application will not be required for increases in salary.
    • If the migrant changes jobs within the SOC code from a job which is on the shortage occupation list to a job which is not on the shortage occupation list, a change of employment application will be required. A change of employment application will not be required if the migrant stays in the same job, but that job is removed from the shortage occupation list.

    If a migrant is remaining with the same sponsor but changing jobs to a different SOC code, a change of employment application is required.
  • New sub-categories for intra-company transfers

    From 6 April 2010, intra-company transfers will be split into three new subcategories, established staff, graduate trainee and skills transfer.
  • Established staff – this is the same as the existing intra company transfer category except that:
    • the minimum prior employment by the company overseas (or in the company's UK operations) is now increased to 12 months;
    • for new applicants this category will not lead to settlement.
  • Graduate trainees – this new sub-category is to enable international companies to transfer recent graduate recruits to the UK for training:
    • the minimum prior employment by the company overseas is only three months;
    • the maximum stay is 12 months;
    • it is only open to migrants working in graduate occupations; click here for the list of graduate occupations;
    • it is only intended for graduate recruits on accelerated promotion or career development schemes;
    • there is a limit of five places per sponsor per year.
  • Skills transfers – this new sub-category is to enable new overseas recruits to transfer temporarily to the UK to acquire or impart skills and knowledge relevant to their new role:
    • there is no need for previous company experience;
    • the skills transfer must be incidental to the applicant's overseas employment
    • their job or role must remain based overseas, and not transfer to the UK;
    • their role in the UK must be supernumerary;
    • there is a maximum stay in the UK of six months;
    • as with graduate trainees, it is only open to migrants working in graduate occupations; click here for the list of graduate occupations.

      Click here to see the table summarising the main features of each sub-category.

Changes to tiers 1 and 2 beyond April 2010

The UKBA will be making other changes to tier 1 and tier 2 of the points based system in due course. These include:

  • Tier 1: adjusting overseas earnings

    The UKBA is reviewing the multipliers used to convert overseas earnings into the equivalent UK earnings to ensure that they are up-to-date. When this review is complete, the multipliers will be updated on the points-based calculator.
  • Tier 1: investors, entrepreneurs and post-study workers

    The MAC recommended that all three of these categories remain open. However, the MAC also recommended that the Government commissions analysis to inform policy on whether the post-study work route should be limited to particular institutions and/or degree subjects.

    The Department for Business, Innovation and Skills (BIS) has already commissioned research on the post-study work route and the Government will await the outcome of that research before making any decision on the post-study work route.

    The MAC also recommended that the UKBA dedicates sufficient resource to enforcement of the tier 1 (entrepreneur) route to allow detailed examination of whether jobs created through the entrepreneur route represent a genuine net increase in jobs. The experience acquired from such enforcement activity will inform whether changes should be made and the criteria for this category will not change until this analysis is completed.
  • 'Highly trusted sponsors' – for tier 4 and, later this year, for tier 2

    This new category of sponsor will be introduced on 6 April 2010 for tier 4. Click here to see our separate news item on this new concept.

    The UKBA proposes to build on this by introducing a category of 'highly trusted sponsor' for businesses later this year.

    All sponsors will have to meet a set of criteria to obtain 'highly trusted sponsor' status. These criteria are being developed and will be published in due course.

    The UKBA says that this change 'will provide the best businesses with an even more streamlined approach to bringing workers to the UK without compromising security. Enhanced services to this new group are likely to include faster, tracked processing times, a simpler process for changes to licenses, simplified application processes, and increased access to information and guidance from trained account managers'.

    If, at any point UKBA becomes aware of a sponsor not maintaining their performance against the criteria, then that sponsor's status will be downgraded to an appropriate level.
  • Tier 2: certifying the Resident Labour Market Test

    Over the coming months UKBA will, as recommended by the MAC, consider carefully how a certification regime can best add to the existing sponsorship controls, and how such a regime might work in practice. At present, UKBA envisages this work stream being considered alongside a new category of highly trusted sponsor. Further details of any changes will be published in due course.
  • Tier 2: other enforcement recommendations

    The UKBA is currently considering other recommendations by the MAC about the adequacy of resource being devoted to enforcement of intra-company transfers, about the scope for information sharing between UKBA and HMRC and whether the degree of transparency around enforcement of the system could be increased, and to what extent they are able to publish details of enforcement activity without undermining its effectiveness.

Changes to tier 4 of the points based system

  • Highly trusted sponsors

    As referred to above, only those education providers that qualify under the new highly trusted sponsor category will be able to offer courses to tier 4 (general) students that are at level 3 on the National Qualifications Framework, or at level 6 on the Scottish Credit and Qualifications Framework.

    In addition, only highly trusted sponsors will be able to offer courses which contain work placements and which are below degree level (excluding foundation degrees).

    The rules are also amended to provide highly trusted sponsors greater flexibility in issuing valid Confirmations of Acceptance for Studies to their students who need to re-sit examinations or repeat course modules.

Changes to tier 5 of the points based system

A transitional arrangement is being added to allow work permit holders in the sponsored researcher category to switch into the tier 5 (temporary worker) category to continue their employment as a sponsored researcher.

  • Tier 5 Youth Mobility Scheme

    Monaco has been added to the list of participating Youth Mobility Scheme countries.

Changes to representatives of overseas businesses category

A technical change is being made to this category, so that representatives of overseas newspapers, news agencies and broadcasting organisations may apply under this category, without being subject to the restriction that their employer must have no branch, subsidiary or other representative in the United Kingdom.

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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