Wolfsdorf Rosenthal LLP

Global Updates: UNITED KINGDOM


UNITED KINGDOM

Several developments have been announced.

Home Office Publishes Latest Changes to Immigration Rules—How Will These Affect Tier 2 Sponsors?

On October 29, 2015, the Home Office published its latest Statement of Changes to the Immigration Rules. The most relevant for points-based system Sponsors are those relating to Tier 2. These changes, effective November 19, 2015, are summarized below. Also included below is an update on other immigration-related changes, including the United States’ extending its passport fast-track scheme to United Kingdom (UK) citizens and further roll-out of criminal record checks.

Key Changes

  • Sponsors must undertake a Disclosure and Barring Service (DBS) check on all migrants who are likely to come into contact with children as part of their job function. A copy of this must be kept in the migrant’s HR file and is listed as an additional document in Appendix D—Keeping Documents. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/477829/Appendix_D_11-15_v1_0.pdf
  • Other new requirements have also been added to Appendix D, including the need to obtain and keep reference letters and/or evidence of qualifications. See specific requirements for Tier 2 (General) migrants below.
  • Sponsors must inform the Home Office if they assign a Certificate of Sponsorship (CoS) to a family member of an employee of the Sponsor’s organization, where it is a small or medium-sized organization or where the Sponsor is aware of a family relationship within a large organization.
  • The list of family members who cannot be assigned a CoS by a Level 1 or Level 2 user of the Sponsor Management System has been extended to include additional family members.
  • The Authorising Officer should check assigned CoS on a monthly basis.
  • Where a sponsored migrant applies for indefinite leave to remain and the Sponsor’s license is suspended, the application will be refused if the license is subsequently revoked.
  • If a Sponsor forgets to renew its license, the Home Office has removed the 20-day grace period within which Sponsors were able to make a new application. The leave of all sponsored migrants will now be curtailed from when the license lapses.

Confirmations and Clarifications

  • A new Annex 8 has been added, which provides further guidance on the actions a Sponsor must take following takeovers, mergers, or group restructuring. This seeks to clarify a number of areas that were previously unclear, including the position following a share sale. An example of this is provided to confirm that, where a Sponsor’s immediate owner has changed, often due to a share sale only, a new Sponsor Licence will be required but migrants need not need make a change of employment application.
  • The Home Office has confirmed that if it refuses a visa to a sponsored migrant on the basis that it does not consider a genuine vacancy to exist, it may suspend the sponsor license while it investigates.
  • During a Home Office audit or compliance visit, photographs may be taken of the Sponsor’s premises.

Specific Tier 2 (General) Changes

  • Further restrictions have been introduced for Tier 4 migrants switching into the Tier 2 (General) category. The institutions where they studied for their degrees must be publicly funded.
  • The Home Office must be notified of any third party who helped recruit a migrant if the Resident Labour Market test is not used. The requirement to notify the Home Office within 10 days has been removed.
  • Within Appendix D, additional documents must be obtained and kept where a Resident Labour Market test has not been undertaken. Specifically, this includes copies of any qualifications the migrant holds to confirm skill level, and/or reference letters from previous employers or other evidence of experience.
  • A number of additional jobs have been added to the Shortage Occupation List (SOL): 
  • All nursing posts. This is a temporary measure, pending the outcome of a further consultation by the Migration Advisory Committee (MAC). The MAC will then report on the need for nurses to remain on the SOL. This is welcome news for the profession because it means that starting in April 2016, nurses will be exempt from the Resident Labour Market Test, will receive higher priority in the allocation of places for the Tier 2 limit, and will not need to meet the £35,000 qualifying salary threshold for Tier 2 (General) applicants to secure permanent residence in the UK.
  • Four roles in the digital technology sector (product manager, data scientist, senior developer, and cyber security specialist). These roles are only available to Sponsors who can satisfy the new “qualifying company” criteria. A qualifying company is a licensed sponsor that employs between 20 and 250 employees, is not more than 25% owned by a company with one or more establishments in the UK having more than 250 employees, and has not been established in the UK for the purpose of supplying services exclusively to a single company or group in the UK. Each qualifying company will be able to sponsor up to 10 Tier 2 (General) migrants holding these positions. The roles also require migrants to have five or more years of relevant experience and demonstrable experience of having led a team.
  • Entry clearance issuance dates will be better aligned with migrants’ start dates of employment in the UK. In effect, they can be post-dated in line with the applicant’s stated date of travel to the UK, provided this is no later than 14 days after the start date of employment given by the migrant’s Sponsor. This change will give more flexibility to migrants and hopefully will reduce the incidence of migrants having to reapply for entry clearance if they have been unable to travel to the UK within the short window provided by the 30-day travel visa.
  • Maintenance rules for family members are being amended so that where the Tier 2 migrant is exempt from having to show maintenance with extension applications, his or her dependents will also be exempt, even if applying at a later date.
  • Tier 2 (and Tier 5) migrants are limited to four weeks of unpaid absence from work per calendar year. This is being changed from the current period of 30 days.
  • Tier 2 provisions relating to maternity, paternity, and adoption leave will now also cover shared parental leave. This will be relevant where there is a salary reduction below the appropriate rate for the job, as stated in the government’s Standard Occupation Codes, for the duration of the leave only.
  • Indefinite leave to remain (ILR) additional requirements for Tier 2 (General) migrants include the requirement for Sponsors to certify in writing that the migrant is still required for the employment in question for the foreseeable future and that the salary payable will continue for the foreseeable future. This will affect those migrants who have been issued a redundancy notice, for example, or where the migrant has given notice of termination of employment. Sponsors need to be aware of these new requirements when an application for ILR is submitted and a decision has been made regarding the end date of a migrant’s employment.
  • United States Extends Passport Fast-Track Scheme to UK Citizens

    This development will be extremely useful for British nationals who travel frequently to the United States for business. Similar to the UK Registered Traveller Scheme, frequent travelers to the United States can apply to join “Global Entry” starting on December 3, 2015. Travelers first must apply to the Home Office and pay a £42 processing fee. If the applicant passes UK vetting, he or she will receive an access code to use when applying for the Global Entry program, which costs £65 and is valid for five years. This new program is intended to speed up passage through U.S. immigration control. According to the United States, the new process cuts down passport control waiting times by about 70%. For more on this program and the expansion to UK travelers, see http://www.cbp.gov/travel/trusted-traveler-programs/global-entry

    Further Roll-Out of Criminal Record Checks

    The Home Office is currently reviewing the further roll-out of the requirement for migrants to obtain police clearance certificates. Because this may be rolled out to Tier 2 migrants early in 2016, Sponsors should factor it in when planning for migrants to transfer to the UK early next year.

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