Immigration Update: Key Changes for Employers in April

6 mins

Posted on 30 Apr 2014

The world of immigration law continues to move at speed in 2014, driven by politics and a desire to endlessly tinker with an imperfect system. The Immigration Bill continues its controversial passage through parliament and, among many other related changes, will eventually seek to reform the removals and appeals system, change the interpretation of Article 8 — the right to respect for private and family life — and prevent illegal immigrants accessing public services. While we await its implementation a number of key changes to the immigration rules were laid before parliament on March 13, 2014, many of which came into force on April 6. Implications for businesses: Changes to Tier 2 and sponsorship For businesses the most important positive change to the rules is permitting Tier 2 migrants to be granted up to five years' leave to remain in the UK at a time — an increase from the previous maximum of three years. While this comes with the now customary higher Home Office fee, this change will eliminate the current need to submit an in-country extension application after three years and therefore creates more flexibility for companies and migrants. It will be interesting however to see the uptake of the five year visa for Tier 2 Intra Company Transfers (ICT) in particular, as companies will need to weigh up the flexibility of such immediate long assignment periods against beneficial tax treatment for shorter periods. There will also be a decision for companies to make in terms of the length of the initial assignment period, given the expectations created, while the migrant and their fit with the UK business remains something of an unknown quantity. The minimum salary thresholds which apply have been increased across the board. We are informed that the updates are in line with changes in the average weekly earnings for resident workers. For example, a short-term ICT migrant must now receive a minimum of £24,500 and a long-term ICT migrant a minimum of £41,000 (or, in both examples, the figure given in the appropriate code of practice, whichever is higher). The salaries within the detailed codes of practice have also changed in many cases, some have increased while others have decreased and as such sponsors will need to check that these new minimum rates are complied with in all cases. The maintenance funds required by migrants will also be increased for all applications submitted from July 1, 2014. For example, the figure required for Tier 2 migrants from July 1 is £945 for the main applicant and £630 per dependant. As applicants need to have held the funds for 28 or 90 days, anyone planning to apply from July 1 is advised to take note of these changes now to save up the necessary funds. Changes have also taken place to the sponsor licence process and, yet again, new detailed guidance valid from April 6, 2014 has been published which all companies holding sponsor licences need to be aware of. Procedural changes here include removing the granting of B-rated licences for sponsor applications under Tier 2 and Tier 5. Applicant companies must now be able to achieve an A-rating otherwise the application will be refused (although note that the policy on downgrading an A-rated licence to a B-rating remains unchanged).

A new 'genuineness test' has also been introduced to the licence process for the first time. Applications for a Tier 2 (general) licence may now be refused if the Home Office does not believe the applicant can offer genuine employment which meets the Tier 2 (general) requirements. This mirrors the 'genuineness' tests introduced in the past 12 months in other immigration categories and perhaps shows the government’s strategic move away from the notionally objective points based system of immigration and back towards a system which incorporates an element of discretion from the decision maker. Exceptional talent, entrepreneurs and temporary workers There has also been a raft of changes to the Tier 1 categories. The headline here is the expansion of the Exceptional Talent category to allow applications from those in the digital technology sector who are endorsed as a leading talent by Tech City UK, a new designated competent body. This move is designed to support the UK's digital technology sector and allow it to recruit top international talent (in the same way that the fields of science, humanities engineering and the arts already can through their own designated competent bodies). We are informed that the application process itself will also be made easier in this category by permitting applicants overseas to apply from any country, not just their own. The Tier 1 (graduate entrepreneur) category appears to be in vogue with the government. One change to this route however is removing the ring fencing of places for MBA graduates. Now these places will be available for graduates of any subject from UK institutions. Also removed here are the restrictions on participants requiring they obtained their degree within the last 12 months. This will be of particular benefit to overseas applicants and for those currently in the UK undertaking research since graduating. In an effort to promote languages, a new 24-month category has been created for overseas government sponsored language teachers under the Tier 5 Government Authorised Exchange (GAE) route. The Home Office reports that the first of these schemes will be for a Mandarin teaching scheme designed to foster good cultural relations between the UK and China. Investors Recommendations from the Migration Advisory Committee regarding significant changes to the investor route have yet to be commented on or implemented by the government. The committee was rather negative in its overall opinion of the economic benefits of the investor route.

Among wide ranging recommendations are a doubling of the minimum investment by the individual from the existing £1 million to £2 million and incentives for individuals to invest in small businesses rather than government gilts. Importantly, the committee recommends removal of the requirement to 'top up' investments should the value fall during the time they are held. Last, but perhaps most controversial of all, is the recommendation that the current accelerated settlement (indefinite leave to remain) offer to investors should be given by way of a sealed bid auction for a limited number of available accelerated investor visas. This would replace the current £5 million and £10 million thresholds in place. The final point of note here is that many of the above changes were announced by the new immigration and security minister, James Brokenshire. Brokenshire's appointment follows the resignation in February of the previous incumbent, Mark Harper, in unfortunate circumstances involving his cleaner's lack of permission to work in the UK. A salutatory reminder to us all to make sure we conduct the correct right to work checks at the outset of employment!

Owen Jones is a partner at Doyle Clayton, the UK's largest specialist employment law firm, and heads up the firm's Business Immigration Service.

This article, written by Owen Jones, was originally published on Complinet at © Thomson Reuters 2014 

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