Home Office changes to the Immigration Rules
The Home Office has now laid before Parliament a raft of changes to the Immigration Rules. This is in order to implement the second of two phases of changes to Tier 2, as announced by the Government on 24 March 2016.
The main changes include:
- Extending the overseas criminal record certificate requirement to Tier 2 migrants coming to work in education, health and social care sectors and to their adult dependants
- Clarifying that applications for visit visas must be made to a post designated to accept such applications
- Including the list of Permit Free Festivals for 2017/18
- Updating the codes of practice relating to skilled workers
Changes relating to overseas criminal record certificates
The requirement to provide an overseas criminal record certificate as part of an entry clearance application was first introduced for Tier 1 (Entrepreneur) and Tier 1 (Investor) migrants on 1 September 2015.
The Home Office is now extending this requirement to provide a criminal record certificate to Tier 2 (General) migrants who are intending to work in education, health and social care sectors and to their adult dependants. The requirement will come into force from 6 April 2017.
According to the Home Office, the extension of this requirement will strengthen safeguards against those with a criminal history seeking to come to the UK.
Changes relating to Tier 2 of the points based system
The following are changes which are likely to be relevant to our clients, following the review of Tier 2 by the Migration Advisory Committee (MAC):
- The salary threshold for experienced workers is being increased to £30,000 for the majority of new applicants. The salary threshold for new entrants remains at £20,800
- Changes are being made to support posts associated with the relocation of a high value business to the UK or a significant new inward investment project, where the sponsor is a newly-registered branch (i.e. within the last three years) or subsidiary of an overseas business and the investment involves new capital expenditure of £27 million or the creation of at least 21 new UK jobs. Sponsors in such cases will be exempt from carrying out a Resident Labour Market Test and from the requirement to assign a restricted Certificate of Sponsorship under the Tier 2 (General) limit
- Changes are being made to the Shortage Occupation List following a separate review by the MAC on teaching shortages, published on 26 January 2017
- Secondary school teachers in maths and physics are being retained on the list
- Secondary school teachers in chemistry are being removed from the list
- Secondary school teachers in combined science (where there is an element of physics teaching), computer science and Mandarin are being added to the list
- Annual updates are being made to the salary thresholds for high earners (whose sponsors are exempt from carrying out a Resident Labour Market Test and from the requirement to assign a restricted Certificate of Sponsorship under the Tier 2 (General) limit) and for indefinite leave to remain applications, based on the latest available Average Weekly Earnings data
- Minor technical changes are being made to the Resident Labour Market Test, including widening the websites which may be used for graduate recruitment from a specified list of four to any freely-available, prominent, graduate recruitment website
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. As with Tier 2 (General), a number of changes are being made in response to the review of Tier 2 by the MAC, and have been previously announced. The changes include:
- The Short Term Staff sub-category is being closed
- The salary threshold for senior transferees who are able to extend their total stay in the category to up to nine years is being reduced from £155,300 to £120,000
- The requirement for transferees to have at least one year’s experience working for the sponsor’s linked entity overseas is being removed for applicants paid £73,900 or above
Immigration Skills Charge (ISC)
The Home Office is introducing this charge to enable a Certificate of Sponsorship to be considered invalid (and therefore for an application to be refused) if any charge which applies is not paid in full.
An ISC of £1,000 per skilled worker per year is being introduced for employers in the Tier 2 (General) and Tier 2 (Intra-company Transfer) routes. The charge is £364 for small and charitable sponsors.
Salary requirements – allowances
Finally, a welcome change in relation to Tier 2 category. There will now be more clarity and consistency as to which types of allowance will be considered against the salary requirements.
In addition, the closure of the ICT Short Term Staff sub-category means that accommodation allowances can form a maximum of 30% (rather than 40%) of the total salary package for all ICT workers (except graduate trainees).
Tier 1 category
There are some technical changes that are being made and these will be only to clarify various evidential requirements and to correct previous minor drafting errors:
- An amendment to provide a clearer definition of ‘invested’ funds
- Removing references to HMRC documentation which has been discontinued in light of self-assessment of self-employed earnings
- Clarifying the evidential requirements for applicants who have invested in a Limited Liability Partnership (LLP)
- Revising the specified evidence required to demonstrate that an entrepreneur’s employee has settled status in the UK (to satisfy the requirement for the applicant to create jobs for settled workers)
- Clarifying the specified evidence on job creation, so that an applicant can provide confirmation from an accountant that their business did not employ any workers prior to their involvement.
People generally fear change. And the thought of making a life change can be intimidating. Migrants who come to the UK often make life-changing decisions: relocating their lives, uprooting their families or reluctantly leaving them behind. They go through all this for either their own professional growth, to extend their skills or transfer their own skills to their colleagues in the UK.
The Home Office, by its own admission, introduces immigration changes to deter businesses from employing migrant workers. The question, however, is: are UK businesses and employers able to stop relying on migrant workers and carry on trading? And what about the already strained NHS: just how will the introduction of the Immigration Skill Charge affect hospitals and care homes financially?
We will have to wait and see how these changes and Brexit impact on the workforce. We will continue to keep you updated and informed.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.