New Immigration Rule Changes Coming into Force 6 April 2015
The UK Immigration Rules have seen extensive changes in recent years and whilst immigration and net migration figures will remain a key topic in the forthcoming General Election in May 2015, 6 April 2015 sees several changes to the UK Immigration Rules which will have immediate implications relating to Tier 2 workers, visitors, English language tests and appeal rights, as well as the introduction of the NHS surcharge.
We set out below a summary of the key Rule changes which may affect your business.
Tier 2 Changes
Shortage Occupation List
For Tier 2 Sponsors who frequently rely on the Shortage Occupation list the new Rules make some changes to the Shortage Occupation codes and so it is worth reviewing the updated list to check the current shortage occupations and requirements. Notably, for those hiring graduates in the digital technology sector these roles may not need to be advertised any more.
Increase to Salary Thresholds
The minimum salary rates set out in the Standard Occupational Classification Codes (SOC codes) have increased for a number of roles. It is critical that Sponsors are aware of the new salaries as stated in the SOC codes as this could affect any new Tier 2 applications submitted post 6 April 2015, particularly if the salary has increased significantly. Consequently, Sponsors may need to think more carefully about remuneration planning, especially for jobs on offer to junior staff.
There has also been a general increase in relation to the minimum salary thresholds with Tier 2 ICT Short Term/Skills Transfer assignees now requiring a minimum salary of £24,800, Tier 2 ICT Long term assignees requiring £41,500, Tier 2 General assignees requiring £20,800 and those Tier 2 High Earners requiring exemption from the Resident Labour Market Test (RLMT) or the Cooling Off period now need to be paid £155,300. As always these are only baseline figures and the salary in the SOC codes must also be taken into account, with the final salary offered to the Assignee being the higher of the two.
Cooling Off Period
There has been some relaxation to the Tier 2 ‘Cooling Off’ periods whereby those spending only 3 months at a time in the UK will no longer be subject to the usual 12 month ‘Cooling Off’ requirements which prohibit certain Tier 2 migrants from immediately returning to the UK under the Tier 2 route. It should be noted that the determining period is the time mentioned on the Certificate of Sponsorship which should be of 3 months duration, and not the start and expiry dates of the visa itself. This will greatly assist businesses who require staff to urgently transfer to the UK on short term assignments and will enable these Assignees to return to the UK soon after.
There has always been some flexibility as currently those on Short Term Intra Company Transfer (“ICT”) visas can return on Long Term ICT visas; however the previous rules caught out those on Long Term ICT visas seeking to return to the UK. For example, a CEO based in the US earning £140,000 who has been assigned to manage a branch in the UK for 3 months under a Tier 2 ICT Long Term visa would usually not be permitted to return to work in the UK until they had spent a period of 12 months overseas. The new provisions will now enable the CEO to return to work in the UK soon after if required.
New BRP Process for Out of Country Applications
Biometric Residence Permits (BRP) are now also being issued to those applying from overseas who are issued a UK visa of more than 6 months. In the first instance a vignette for 30 days will be placed in the Assignee’s passport which will allow the assignee to travel to the UK. Once the Assignee arrives in the UK they will then have 10 days to attend their chosen Post Office to collect their Biometric Residence Permit. According to the UK address provided on the online visa application form, the BRP will be issued at the nearest Post Office to that address.
We note that several Sponsors and Assignees may sometimes defer their work start date or arrival date in the UK for legitimate business reasons; however the new BRP process clearly places a fixed timeline as to when the Assignee must arrive in the UK and collect their BRP card. We would therefore urge all Sponsors and Assignees to take the new BRP process into account when determining start and arrival dates. Doyle Clayton would recommend that a realistic start date is provided and adhered to in order to avoid any problems arising with collecting the BRP card.
Changes to Visitors
Interestingly the Visitor visa categories have now been reduced from 15 categories to only 4. These comprise of ‘Visitor Standard’, ‘Visitor for Marriage or Civil Partnership’, ‘Visitor for Permitted Paid Engagements’ and ‘Transit Visitor’.
Anyone now travelling to the UK for leisure or business will now fall under the ‘Visitor Standard’ route and a list of what you can and cannot do in this category is provided. Arguably this list is no clearer than the previous Rules or guidance provided. However there is some good news for Sponsors who can now rely upon ‘Intra corporate’ activities permitted within the Visitor Standard Rules which allows the Visitor to train and share skills on a specific internal project with their fellow UK employees. This will presumably reduce the need to rely on Tier 2 ICT Skills transfer visas but caution should still be exercised in ensuring that your visitor is not actually ‘working’ directly with any clients.
Provisions are also made for ‘visiting’ overseas lawyers who can advise a UK client on international transactions and litigation provided they continue to remain paid and employed overseas.
Visitors coming into the UK for business reasons will remain a hot topic for UK Visas & Immigration. We strongly advise clients to take advice and ensure that a visitor from overseas falls legitimately into the visitor route and they do not require a formal work visa.
An NHS surcharge is now applicable for visas of 6 months or more duration and applies to entry clearance applications as well as those extending their visas. The cost is £200 per year and is based on the duration of the Certificate of Sponsorship (COS) and the fee applies to the main applicant and any dependants applying. Do however note that certain exemptions apply. For full details click here.
The list of approved English Language providers has been changed and notably providers such as Pearson have now been removed from the new list.
It is essential to double check that any English Language test certificate being provided either meets the new requirements or falls under the ‘transitional arrangements’. Transitional arrangement English Language tests can be used in a UK immigration application only until 5 November 2015 and only when they have been taken on or before 5 April 2015. Doyle Clayton will be able to provide guidance to those concerned about whether their tests meet the requirements.
Appeal rights will now only be available in very limited circumstances, such as where the Applicant has merits to Appeal on Human Rights grounds, Asylum or EEA rules.
From 6 April 2015 other categories will simply be entitled an ‘Administrative Review’ for those refused Leave to Remain or Entry Clearance. These persons will then have either 14 calendar days (if refused in country) or 28 calendar days to apply for the Administrative Review. A fee of £80 is payable.
If your business requires advice regarding these proposed Rule changes, please contact our specialist Business Immigration Team Owen Jones, Anita de Atouguia, Mandeep Khroud, Anita Pali, Victoria Burnip or Chloe Harrold.
The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.