LAW AND POLICY
The government intends to publish new measures for Tiers 1 and 2 of the Points based Sysstem and on Atudents also to come into force in early April 2011. The statement of intent on Tier 2 suggests that changes will be made to settlement applications at that time. There will be a new approach to criminality which would appear to affect all applicants for Settlement . the government staes taht they will reform the current criminality threshold for settlement to bring it morein line with that for naturalisation applicants. All migrants ( except refugees) will need to be free of unspent convictions when applying for settlement. Those who are not and have no other legitimate basis of stay here will be expected to leave the UK.
the rules and guideance changes effective from April 2011 wil introduce a new income requirement for Tier 1 (General), Tier 2 (General) and work permit holders applying for settlement. they will also need to fulfil the lanugage test and Life in the UK requirement and the criminality test will apply these applicants as well.
Statement of Intent published for Tier 2 – 16 February 2011
An annual quota of 20,700 Certificates of Sponsorship (CoS) for Tier 2 (General) migrants and 1,000 Tier 1 (Exceptional Talent) migrants will commence on 6 April 2011 until April 2012. While detailed immigration rules and formal guidance will not be published until mid March, this Statement of Intent represents the Governments current plans and they are unlikely to change.
This summarises the key changes for Sponsors and employees including;
• Who is covered by the quota?
• How the quota will work in practice
• Restricted and Unrestricted Certificates of Sponsorship
Who does the quota apply to?
• Tier 2 (General) migrants i.e. “new hires” who are coming to the UK from overseas.
Who is exempt from the quota?
• Intra Company Transfers (“ICTs”) – employees with at least 12 months experience with the group overseas
• Tier 2 migrants extending their stay with their current employer
• Tier 2 migrants switching to a new employer. However, for those coming to the UK after 6 April 2011, the in-country exemption will only apply to Tier 2 (General) migrants as Tier 2 (ICT) migrants will not be permitted to switch in-country to Tier 2 (General).
Example:
Employee has a CoS with Sponsor A under Tier 2 (ICT) granted May 2011. In September 2011 he wishes to move to Sponsor B which requires a Tier 2 (General) permission. He cannot switch while he is in the UK. He will have to leave the UK to apply from overseas and will therefore be subject to the quota (unless exempt because of salary).
• Those admitted in another immigration category e.g. Tier 1 (General), Tier 4 (General) i.e. (student), Tier 1 (Post study work).
• Those earning salary of at least £150,000. Please note that the Resident Labour Market Test (“RLMT”) will not be required for these applications.
How will this quota system work in practice?
Certificates of Sponsorship will be divided in to 2 categories;
1. Unrestricted CoS
All CoS which fall outside the quota will be classified as “unrestricted”. Sponsors will shortly be contacted, as under the current system, by the UKBA to request an initial allocation of unrestricted CoS which will then be shown on the Sponsor Management System. There will be an ability to request additional CoS during the course of the year.
2. Restricted CoS – Tier 2 (General)
These are CoS which fall within the quota.
Unlike the current system, a Sponsor will not have a number of restricted CoS allocated to it. Instead it will apply for one of the monthly allocations along with all other UK Sponsors.
How many restricted CoS will be available each month?
4,200 in April 2011 and approximately 1500 per month thereafter (depending on demand).
How will Sponsors apply for a restricted CoS?
The Sponsor’s application for a restricted CoS (no limit on how many it can request in any one month) must be submitted by an agreed date each month. We understand that the “application request” will be on-line via the Sponsor Management System.
The UKBA will consider the application request against the ranking criteria based on whether it is a
• shortage occupation;
• PhD level post and a RLMT undertaken;
• RLMT has been undertaken; and
• the level of salary on offer for the role in the UK.
Please refer to the points table in the Statement of Intent
What will happen where the application requests exceeds the quota level?
The UKBA will award a CoS to all applications with sufficient points to place them above the threshold. A minimum of 32 points will be required. The Sponsor can then assign a CoS to the migrant – this must be done within 3 months.
If an application is unsuccessful the Sponsor will have to reapply the following month.
Once the system has been in operation we will have more clarity about which types of applications/roles/salary thresholds are likely to qualify, although there may be slight monthly variations.
Changes to Tier 2 (Intra Company Transfers)
While Tier 2 ICTs have fallen outside of the permit quota, the UKBA will make a distinction between CoS depending on the length of the assignment.
Short term ICTs
• This is for assignees transferring for 12 months or less. They must be paid at least £24,000.
• Short term ICTs cannot extend for any further period of time while in the UK and will not be permitted to return to the UK again as short term ICT until they have spent 12 months outside the UK.
• A short term ICT may return to the UK as a long term ICT provided salary is over £40,000.
It is therefore essential that a decision is made at the outset about the likely duration of an assignment so that an application is filed under the correct category.
Long-term ICT
• A CoS will only be issued for more than 12 months where the UK salary is in excess of £40,000.
• They may apply for a limited period of 3 years and then may extend for 2 years.
• A long-term ICT may spend no more than 5 years in total in the UK with no possibility of extending.
• At the end of the 5 years, the migrant cannot return to the UK as an ICT for at least 12 months.
Example
Jo Bloggs is transferred from the US to the UK as a Tier 2 (ICT) for 12 months in May 2011. He is paid a salary of £39,000.
In April 2012, the company decide they need him here for a further 2 years. The company cannot extend him in the UK beyond 12 months as he came in as a short term ICT and his salary is below £40,000.
The company cannot send him back to the US to then return to the UK as a short term ICT for a further 12 months (January 2013).
He will be able to return to the UK as a long term ICT in May 2012 only if his salary is increased to over £40,000.
What about Tier 2 (ICT) migrants already in the UK?
These new rules will not be applied to them.
What should Sponsors be doing now?
Sponsors should focus on the following:
• communicating these changes to the business.
• identifying migrants who may be impacted by the April changes and whose applications should therefore be filed sooner e.g. long term ICTs ( more than 12 months ) who will earn less £40 000 in the UK.
• using any remaining Tier 2 (General) allocations.
• ensuring that any RLMTs are concluded in the next few days for any Tier 2 ( General ) migrants that they wish to submit applications for in the first monthly quota in April.
• assessing how many unrestricted Certificates of Sponsorship they will require from April 2011 to April 2012.
With regard to restricted CoS, there is nothing that a Sponsor with a zero Tier 2 (General) allocation left can do until the request for allocation process is opened on 16 March. However Sponsors must ensure that RLMT has been completed making the first request for an unrestricted CoS. This may impact on timings.
Example
Proposed start date of 1 May 2011 for new recruit who requires Tier 2 (General) under the quota.
1st Allocation of Restricted CoS - likely to be issued early April and request for restricted CoS must be submitted from 16 March.
RLMT – must run for at least 28 days with sufficient time to consider applications. Therefore, unless the RLMT advertising has been started by now it is unlikely the Sponsor will be able to apply under the April quota.
Transitional provisions for migrants already in the UK
The Statement of Intent confirms that the new requirements will not apply to applicants who apply before 6 April 2011.
For entry clearance applications, an application is treated as having been submitted when the fee is paid and for in-country applications on the date of posting.
Applications must therefore be submitted by 5 April 2011 to be treated under the old rules. For migrants applying close to this cut off date and who may receive a visa after this date, it is essential that they retain evidence of when the application was submitted to show that the post 6 April 2011 rules should not apply to them – for example biometric receipt/evidence of date of posting.
Good news for graduate recruiters!
• Tier 1 (Post Study) workers can switch to Tier 2 (General) from within the UK.
In addition there will be no RLMT required where they have been in post for 6 months or more with the Sponsors.
• Tier 4 (General) will be permitted to switch in to Tier 2 (General). They will therefore also fall outside the quota provided they file from within the UK before their visa expires.
New rules on settlement
Very general details are provided in the Statement of Intent on the new rules for settlement. The proposal most likely to cause issues in that:-
• Tier 2 migrants must receive the salary specified in the relevant code of practice (i.e. minimum market rate) and the level stipulated when they were last granted leave.
This may cause issues where a migrant has taken a salary reduction due to flexible working hours, agreed a reduction in hours due to paternity/maternity leave or where overall remuneration is dependent on profit share.
Conclusion
The Government has thankfully listened to the concerns of business over the last few months and the framework that has been announced is far more business friendly than we had anticipated when the quota system was first introduced last July. We have particularly welcomed the confirmation that Intra Company Transfers and “switching” applications will be permitted for migrants already in the UK in another category.
The next few months are definitely going to be challenging for employers seeking to bring in workers from outside the EU. As the new system is rolled out we will be able to gauge the minimum salary thresholds needed to qualify under the quota and the timelines required to recruit migrant workers. While there will undoubtedly be issues to be addressed from some quarters, the UK clearly remains " open for business ".
New recommendations on the occupations to be removed from Tier 2 of the points-based system
07 February 2011
The Migration Advisory Committee (MAC) has today recommended a new shorter list of occupations eligible for migration under Tier 2 of the points-based system.
As part of its review of the immigration system, the government raised the threshold for Tier 2 visas to 'graduate level' and commissioned the MAC to examine which occupations should qualify.
The government asked that the MAC use the National Qualifications Framework (NQF) level 4 and above as the relevant benchmark. This will reduce the number of occupations qualifying for Tier 2 visas by 71, down from 192 to 121.
The shorter list of occupations means that Tier 2 applicants will only be able to apply for jobs covering the most skilled 39 per cent of the labour market rather than the current 56 per cent.
Chair of the Migration Advisory Committee, Professor David Metcalf, said:
"Skilled foreign workers make a valuable contribution to the British economy but, in the context of limits on migration, it is essential that the immigration system is designed to select those migrants we need the most."
"We have recognised this by ensuring our recommendations will allow the most skilled to continue to come and work here."
Among the occupations which would still qualify for entry under Tier 2 of the points-based system are nurses, teaching professionals, civil engineers and finance and investment analysts.
Occupations which were qualified as skilled to the old level but are not to the new one include retail managers, hairdressing and beauty salon managers, laboratory technicians, and estate agents.
Immigration: visa rules set to be relaxed for Tier 1 Investors
The Home Office is planning to make it easier for Tier 1 Investors to establish their home in the UK. The changes are to be approved by parliament in April.
If passed, Tier 1 Investors will only have to spend 6 months in the UK before qualifying for a visa, compared to the current waiting time of 9 months. Also, the time they must spend in the UK before qualifying for permanent residence rights is to be "dramatically cut."
The proposals are intended to raise the number of foreign investors being attracted to the UK, At present, the UK attracts a few hundred immigrants a year in this category, whereas Canada manages to attract 3,000 High Net Worth Individuals.
Also affecting Tier 1, new rules are to be introduced for Tier 1 Entrepreneurs that will let them bring an extra employee into the UK for an additional £50,000.
Further information on these changes will be posted when it becomes available.
Immigration: foreign students are an important UK asset
The Financial Times has joined the growing number expressing increasingly vociferous doubts over government policy towards foreign students. In an article dated 7 February ("Universities attack immigration policy") the newspaper quoted critical remarks made by Edward Acton, Vice Chancellor of East Anglia University, about the tough new English language tests being introduced for foreign students from outside the EU, as well as remarks by world leading education company Pearson (which owns the Financial Times), saying the new rules will be "unnecessarily onerous", leading to "thousands of genuine students [having] their visa rejected".
The newspaper also reports that top consultants McKinsey have identified higher education as a "key growth area for the UK economy", and quotes them as saying the government should not "discourage legitimate immigration for higher education." These sentiments were echoed in the FT editorial of 7 February, titled "Cameron's costly migration policy: UK should lure foreign students, not refuse them visa." We couldn't agree more.
In the meantime, we will continue to support foreign students who wish to study in the UK.
Unpaid Child Maintenance Leads to House Sale Freeze
A wealthy man has had an order served on him by the court which prevents him from selling his house until he settles child maintenance arrears of more than £78,000.
The man had failed to pay any maintenance for more than 12 years. It was thought that he might try to put the proceeds of the sale of his house beyond the reach of the Child Support Agency, which is now part of the Child Maintenance and Enforcement Commission.
The Commission sought the order over the four-bedroom property to ensure that the arrears of maintenance are made good.
In appropriate circumstances the Commission has the power to order the possession and sale of properties or the imprisonment or banning from driving of those who build up substantial arrears of child maintenance.
Prenuptials aren't just valid: they're "decisive"
The growing recent tendency by the English courts to uphold prenuptial agreements was endorsed in a Supreme Court ruling of 20 October in the case of Granatino v Radmacher (formerly Granatino). As most commentators anticipated, the Court ruled such an agreement is "decisive" in determining who gets what when the marriage fails.
The ruling seems bound to lead to more prenuptial agreements and less challenges to them during the post-nuptial stages. People like Katrin Radmacher will, in other words, be more confident the agreement will hold and people like Nicolas Granatino will be more cautious about challenging it in court.
The case may not, however, have quite the far-reaching importance the press predicts. The trouble with talking about "people like" Radmacher and Granatino is that there are no people like Radmacher and Granatino, and common sense as well as legal practice suggest the highly unique facts of the case will curtail its scope as a binding precedent.
The partner enforcing the agreement was the wife, a German heiress reportedly worth over £100 million, and the husband challenging it was an ex-banker who had to settle for a multi-million pound property, plus a seven figure cash sum. Hardship was not a word that sprang to mind and, in a case of two rich parties, sympathy was generally with the richer of the two.
It also seems worth commenting that the only dissenting judgment came from the only woman judge - Baroness Hale, who said the case raised "profound questions about the nature of marriage in the modern law and the role of the courts in determining it."
Those "profound questions" may not have been specified in her judgment, but two that seem likely to be revisited in future cases when there is less money in the pot are "How decisive is decisive?" and "How important are the other factors?" in deciding what is fairest, bearing in mind the particular facts of the case.
The immigration cap
The government announced the introduction of a limit on immigrant numbers (the "cap") in June 2010. It does not affect nationals of EU countries.
The cap is in line with a government promise to reduce net migrant numbers from "hundreds of thousands to tens of thousands". Although it has been endorsed by leading members of the Coalition Government, including Immigration Minister Damian Green, the cap has become one of the most controversial issues in British politics, causing division in both the Conservative Party and the Coalition Government.
On 7 September the Conservative Mayor of London Boris Johnson wrote to Home Secretary Theresa May claiming the cap will "put the economic recovery at risk", adding it is "already hampering business". This was echoed in mid-September when Business Secretary Vince Cable told the Financial Times "the brutal fact is that the way the system is currently being applied is very damaging," adding that many UK companies were "not investing or relocating… or just not able to function effectively because they cannot get key staff from outside the European Union."
The controversy continues with the cap still in place but ongoing review of "the way it is being applied." As the debate is focused on the UK's economic self-interest economic arguments continue to dominate the agenda. For now it seems that if changes are made they will affect "the way the system is applied" i.e. overall numbers and the categories affected, rather than (at least in the lifetime of the present government) lead to an outright removal of the cap.
In a quite separate development, the Joint Council for the Welfare of Immigrants has just launched a judicial review claiming the cap is unlawful as the proper parliamentary procedures were not observed when it was introduced.
Information on this will be regularly updated to keep Ziadies clients fully posted on the law and policy affecting the cap.
Failed asylum seekers from Zimbabwe face removal
Immigration Minister Damian Green announced in mid-October that the 4-year old ban on sending failed asylum seekers to Zimbabwe is to be lifted. The decision is likely to affect 10,000 people. Several authoritative sources have, however, expressed concerns, notably including the Zimbabwe Association and the Refugee Council.
The ban was introduced by a High Court ruling in 2006. The Court said it was needed to protect Zimbabweans who failed to show loyalty to the Mugabe regime from exposure to persecution. Removal of the ban assumes that Zimbabweans who fail to show loyalty to the Mugabe regime are no longer at risk, and that inclusion of former opposition-leader Morgan Tsvangirai in Mugabe's Zanu PF government has radically improved the situation.
The timing of the Minister's announcement should not pass without comment. It comes just as the Immigration and Asylum Tribunal is about to announce its decision in a test case on precisely this point. The Minister's announcement, supported by his declaration "We expect the case to reflect the improvement in Zimbabwe" is, we feel, constitutionally inappropriate and politically premature. It is not for ministers to pronounce on matters that are sub judice and government policy should not be announced until it is known to be lawful.
The evidence is far from conclusive. In support of Damian Green's view is the report of a UK government fact-finding mission in August. The mission interviewed 7 people who had voluntarily returned to Zimbabwe from the UK and concluded there were no significant problems at Harare airport or in re-settling in Harare or Bulawayo.
Human rights organizations, however, entertain serious doubts that this is enough to justify lifting the ban. They claim "anyone walking around Zimbabwe in an MDC T-shirt would be putting themselves at risk anywhere in Zimbabwe." That cautionary note is echoed by the Foreign Office, which is still advising British travellers that "Human rights abuses and instances of political violence continue, particularly in agricultural and mining areas."
The Tribunal's decision on this crucial test case is expected shortly.
Immigration Minister Damian Green announced that the Worker Registration Scheme for workers from A8 countries, which was a transitional scheme introduced in 2004, will come to an end on 30th April 20011. Nationals from Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Slovakia and Slovenia have to register with the UKBA before they are allowed to take up employment in the UK with the exception of self-employed people or employees under the short-listed occupations.
The UKBA will be compelled by the EU directives to lift restrictions on the A8 nationals on 30th April 2011 as the UK government was allowed to impose such restrictions only for 7 years from the date of the A8 countries joining the European Union.
Therefore, A8 nationals will be able to gain access to the UK labour market on equal grounds as other members of the European Union nationals. They will also enjoy identical benefits as other EU nationals on all entitlements including social-welfare benefits permitted by the law.
I need to know more
If you would like to know more contact us.
