The past couple of years have seen many changes to the UK's immigration system. Following a consultation on employment related settlement, Tier 5 and overseas domestic workers, which closed in September last year, further reform has been announced.
Proposed amendments to the Immigration Rules were published on 15 March 2012, with the majority of these taking effect on either 6 April 2012 or 14 June 2012.
Immigration Minister, Damian Green, has stated that these most recent changes will ensure that the UK is selective "not just about who can come here but also who will be allowed to stay permanently" and that they "represent real progress on our promise to bring immigration back to sensible, sustainable levels, and to bring in only those migrants who can make the greatest contribution to life in the UK."
Premium Customer Service for Sponsors
In response to requests from businesses for a higher level of customer service for them and their international workers, a "Premium Customer Service" is to be introduced for A-rated sponsors in Tiers 2 and 5 who wish to apply and pay for a range of service benefits.
The service benefits expected to become available include guaranteed access to Public Enquiry Office appointments and the swift return of documents for sponsored workers.
The proposed annual fee for this service is £25,000. To cater for small and medium-sized businesses which have paid the reduced licence fee, there is a proposal to offer a reduced and targeted package of benefits for a fee of £8,000.
Plans to name and shame businesses which employ illegal workers have recently been put into place.
Employing illegal workers can lead to criminal sanctions as well as civil penalties of up to £10,000 per illegal worker. The UK Border Agency (UKBA) now publishes quarterly reports detailing penalties it has imposed on individuals or businesses employing illegal workers. The reports include the number of illegal workers found; the number of civil penalties issued; and the value of the penalties broken down by geographical regions.
A quarterly report is now published naming employers who have failed to pay civil fines, either in full or by starting to make regular payments, within 28 days of exhausting any objection or appeal rights.
Employers who have been served with a second or subsequent penalty within 3 years of a previous penalty or warning letter will also be named.
Since 13 February 2012, migrant workers who are already in the UK under Tier 2 (Skilled workers) or Tier 5 (Temporary workers) of the points-based system have had the option of applying and paying their application fees, online. The online application system is also available to these workers' dependants who are in the UK and seeking permission to extend their stay. For individuals who wish to make an application in person, appointments can be booked using the online system.
On 9 February 2012, Immigration Minister Damian Green issued a written ministerial statement proposing an increase in visa fees and an increase in UK-based visa application fees. The new fees come into force on 6 April 2012. Fees will increase by 2 per cent in the majority of cases, but there will be higher increases for certain categories.
To access a full table of the proposed fees, as included in the written ministerial statement, click here.
Tier 1 (High-Value Migrants)
The Tier 1 (Post-study work) category allows graduates who have studied in the UK to look for work here, without the need for a sponsor. This route is to be closed to new applicants. The Government has stated that it believes this route is "inappropriate when UK national graduates are struggling to find work".
However a new Tier 1 (Graduate entrepreneur) route is to be introduced for individuals who are identified by higher education institutions as having world class innovative ideas or skills. 1,000 certificates will be allocated to eligible higher education institutions. The institutions will then assign these to appropriate individuals, who will be permitted to remain in the UK after graduation to develop their businesses. Initial leave will be for 12 months and a 12 month extension will be available where applications are supported by the relevant institution.
Provision will be made to allow migrants to switch from the Tier 1 (Graduate entrepreneur) or Tier 1 (Post-study work) categories into the Tier 1 (Entrepreneur) category. A lower threshold (of £50,000) will apply, in relation to funds required for investment, in the case of these switches.
The annual limit for Tier 1 (Exceptional talent) will remain at 1,000 places per year for the next 2 years.
Tier 2 (Skilled Workers)
Amendments to the rules for both entry clearance and leave to remain, under Tier 2, will affect applications made after April 2012.
The total period for which a person may remain in the UK as a Tier 2 migrant will now be limited to 6 years. Leave to remain will be granted in two blocks of three, rather than the current system of three blocks of two.
A "cooling-off period" will be introduced across all of the Tier 2 routes. This means that Tier 2 migrants will be required to wait for 12 months from the expiry of their previous visa, until they can apply for a further Tier 2 visa.
A new minimum salary threshold will be introduced for Tier 2 migrants wishing to apply for settlement from April 2016. Applicants will have to earn the higher of either £35,000, or the appropriate rate for their occupation in the relevant UKBA Code of Practice. Migrants in shortage occupations and designated PhD-level jobs, as well as ministers of religion, will be exempt from this.
Following the closure of the post-study work route, a route into sponsored graduate employment through Tier 2 of the points-based system will be introduced, which will not require a resident labour market test to be undertaken.
Tier 4 (Students)
All Tier 4 sponsors will need to be classed as "highly trusted" sponsors and must undergo inspection by the end of 2012 to become accredited as such.
Time spent studying at degree level under Tier 4 will be limited to five years, with some exemptions for specific, longer courses.
Overseas student work placements will be restricted to one-third of the relevant course, except where the course is at degree level, and provided by a recognised university, in which case work placements are restricted to one-half of the course.
There will also be a change to the amount of prepaid accommodation that can be used when assessing maintenance.
Tier 5 (Temporary Workers)
Tier 5 (Government Authorised Exchange) will be amended so that temporary workers coming to the UK to participate in internships and work experience schemes will only be permitted to stay for a maximum of 12 months, with no possibility of extension.
The changes will also allow sportspersons entering under the Creative and Sporting sub-category to undertake some guest sports broadcasting work where this does not involve filling a permanent position.
These changes are intended to "enhance the focus and flexibility" of Tier 5.
A new visitor route is to be created, outside of the Points-Based System, which will allow certain professionals to come to the UK for up to one month for specific fee-paid engagements, without the need for formal sponsorship by a UK-based employer. It is envisaged that this will apply to visiting lecturers, air pilot examiners, lawyers visiting for legal proceedings and professional artists, entertainers and sports persons.
Overseas Domestic Workers
Migrants in the Overseas Domestic Workers category will no longer have the right to apply for settlement. Neither will they be permitted to be accompanied by dependants.
These workers will also be restricted to working solely for the employer with whom they entered the UK, or whom they came to join, and there will be more stringent requirements for the employer to provide evidence of an existing employment relationship, and agreed written terms and conditions of employment, as part of the application for entry clearance.
Individuals in this category, who work in private households, will only be able to work for an employer who is a visitor to the UK. Permission to stay in the UK will be limited to a maximum of 6 months, or the period of the employer's stay, whichever is shorter.
Workers in diplomatic households will be permitted to apply to extend their stay for 12 months at a time, up to a maximum period of either 5 years or the length of the diplomat's posting, whichever is shorter.
The power to curtail a person's limited leave to enter or remain may be used when a person has failed to comply with certain requirements of the Immigration Rules or has lost the justification for his or her presence in the UK.
Curtailment will now be mandatory where a migrant under Tier 2, 4, or 5 of the points-based system has failed to start, or has ceased, working or studying with their sponsor. This includes where the migrant continues to be employed by, but ceases working for, the sponsor for a period of one calendar month. There are exceptions for maternity, paternity, adoption and sick leave.
Currently, the Rules set out that limited leave should not normally be curtailed where the person has less than 6 months' leave remaining. This threshold will be reduced to 60 days.
Finally, under the points-based system, applicants are required to provide evidence of funds, above the relevant threshold for their route. The funds required to meet the maintenance requirements are to increase across all categories.
If you have any other questions, or require assistance in preparing policies, please get in touch with your usual contact at MMS or:
Partner and Head of Department
0131 228 7134
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This briefing is written as a general guide only. It is not intended to contain definitive legal advice which should be sought as appropriate in relation to any particular matter.