Resident Labour Market Test advertising requirement increased to 4 weeks

From the 14^th December 2009, the UK Border Agency has altered the requirements of the Resident Labour Market Test under Tier 2 of the Points Based System such that all roles subject to the Resident Labour Market Test must be advertised for 28 days.

The changes mean that instead of advertising the role for one week (where the salary for the role is in excess of £40,000) or for two weeks (where the salary for the role is under £40,000), as was previously the case, employers will now need to advertise for a total period of four weeks.

The UK Border Agency has confirmed that all adverts placed before the 14th December will be subject to the previous rules, so for example, an advert placed on the 11th December and expiring on the 18th December for a role with a salary of £50,000 would still meet the requirements.

In addition, a new rule has been introduced such that adverts need not run for a continuous period of four weeks, as long as the advert has been placed for a total of four weeks (in one or two periods, each not less than one week). The UK Border Agency has given the following example:

“This will mean that employers will be able to advertise skilled jobs for shorter periods initially, for example for two weeks. This ensures that where resident workers are available, they can quickly be recruited to skilled jobs. Where there are no suitable resident workers available, the resident labour market must be tested for a further two weeks, making four weeks in total, before employers can appoint a migrant worker.”

All other existing requirements regarding retaining documents remain the same, and adverts must be placed on the JobCentre Plus website and one other suitable medium (defined by the UK Border Agency Codes of Practice). Roles not currently requiring the completion of a Resident Labour Market Test (e.g. shortage occupation or Intra Company Transfer roles) will continue to be exempt from this requirement.

If you have any queries regarding how to meet your duties as a Sponsor under Tier 2, including completion of the Resident Labour Market Test, please contact us.

Long Residence Indefinite Leave to Remain applications to be restricted to Postal only applications from the 1^st of January 2010

The UK Border Agency has announced that from the 1^st January 2010, its Public Enquiry Offices (PEOs) will no longer accept Long Residence Indefinite Leave to Remain (ILR) applications. From the New Year, applications made on the basis of having completed ten years’ long residence in the UK (in any visa categories) will only be accepted when submitted by post. Unfortunately the UK Border Agency has not offered any explanation as to why they are making this change, although it may be due to the fact that Long Residence ILR applications generally take longer to process and require the inspection of a greater amount of information.

Applications for ILR made on the basis of employment or marriage to a British Citizen will continue to be accepted at Public Enquiry Offices.

The current processing times for ILR applications made on the basis of Long Residence are around 10-12 weeks.

For further information on submitting a Long Residence ILR application, please contact us.

Identity Cards coming into force for Tier 2 migrants from the 6^th January 2010

Further to our previous news item on the subject (available here), the UK Border Agency has now confirmed that from Wednesday the 6^th January 2010, all migrants applying for Tier 2 visas from within the UK will also be required to apply for an Identity Card for Foreign Nationals (ICFN).

The exact procedure for submitting biometric details will differ depending on whether the application is made using the postal or same-day route.

Postal Applications

As is currently the case with Tier 4 applications, applicants will need to apply as normal. The UK Border Agency will then write to the applicant, asking them to book an appointment to submit their biometric details. The applicant will then need to book an appointment for themselves and any dependants, using the online or telephone booking systems, attend this appointment and submit their biometric details (digital photograph and digital finger scans). The UK Border Agency will then process the application as normal. If the application is approved, the individual will receive their Identity Card by post within 10 working days

Premium (Same-day) Applications

Applicants will need to book a premium appointment in the normal manner by using the telephone or online booking systems. Applicants must then attend the appointment themselves, along with any dependants, and submit their application as well as their biometric details (as described above). The applicant will still receive a decision on their application on the same day, although the Identity Card will be posted by secure delivery within 10 working days. Due to the fact that applicants must now submit their biometric details, representatives such as UK Work Permits Ltd will no longer be able to represent applicants at same-day appointments. Despite this, UKWP can still assist in the preparation of a successful application, in the same way as we do currently with postal applications.

The UK Border Agency has re-stated that they intend to introduce Identity Cards for Tier 1 and Tier 5 applicants by the end of 2010.

For further information on how these changes will affect you, or for assistance with preparing a successful Tier 2 visa application, please contact us.

Migration Advisory Committee proposes changes to the Tier 1 (General) scheme

The Migration Advisory Committee (MAC) has recently published a report concerning Tier 1 of the Points Based System and how well it is achieving its stated aims of bringing highly skilled individuals to the UK. After being asked by the UK Border Agency to consider a number of points, the MAC has proposed a number of significant changes to the Tier 1 (General) scheme. A summary of these proposed changes is as follows:

• Uplift ratios, which allow the UK Border Agency to accurately and fairly compare salaries from economically diverse countries should be reviewed regularly;
• Applicants with a bachelor’s degree but no master’s degree should be allowed to qualify under the Tier 1 (General) scheme if their previous earnings are high enough;
• Certain professional qualifications (in law and accountancy, for example) should be considered equal to a master’s degree;
• The previous earnings thresholds should be increased substantially, with no points awarded for previous annual earnings below £24,000 (currently £20,000);
• Applicants with previous earnings of at least £150,000 per annum should be able to qualify for the scheme without gaining points from the qualifications or age sections;
• Applicants should receive points for their age if they are 39 or under;
• Successful applicants should initially be granted a two year visa, rather than a three year visa as at present, with a three-year extension later if the applicant is in highly skilled employment.

UK Work Permits would like to emphasise the fact that at the moment these changes have merely been proposed by a body entirely separate and distinct from the UK Border Agency. It is difficult to accurately judge the likelihood of these changes coming into affect, although in the past the UK Border Agency has accepted the majority of the MAC’s recommendations.

The UK Border Agency has stated that it will review these recommendations and publish its conclusion in early 2010. If introduced, it is likely that these changes would be made to the Tier 1 (General) scheme in the spring of 2010.

For further information on the viability of a Tier 1 (General) application under the rules as they currently stand, please contact us.

Roll out of Identity Cards for Foreign Nationals

From January 2010, skilled foreign workers applying or extending under Tier 2 of the Points Based System will be issued with an identity card. Previously, these cards have only been issued to students renewing their visas under Tier 4, and those extending their visa under the Spouse / Civil Partner category. The UK Border Agency has now announced that the scheme will roll-out across Tier 2 from January 2010 and to Tier 1 and Tier 5 later next year.

The introduction of Identity cards has been brought forward across all Tiers by around three months ahead of schedule.

The cards will only be issued to non-EEA nationals and will require migrants to have digital photograph and finger-scans taken. It has also been announced that shortly, foreign nationals being issued an identity card can have their biometric data taken at one of 17 post offices across the UK, who will be offering this service for a charge of £8, or at one of the UK Border Agency Identity and Passport Service Offices without charge.

Further regulations concerning the next stages of the scheme will be confirmed by Parliament within the coming months.

For further information on whether or not this will affect you, please contact us.

New arrangements for ‘Earned Citizenship’

As planning for the implementation of ‘earned citizenship’ continues, transitional arrangements have been approved for migrants who will be on the journey to British Citizenship when the scheme rolls out in July 2011. Below is a summary of the agreements:

A migrant who has already been granted Indefinite Leave to Remain before or on the date when ‘earned citizenship’ is introduced will not be required to pay, or apply, to be a considered a ‘permanent resident’. This will occur automatically. The individual will be able to apply for British citizenship under the current rules if they apply within the first two years of the scheme’s commencement.

A migrant who applies for Indefinite Leave to Remain before the date when ‘earned citizenship’ is introduced, and has their application subsequently approved will be able to apply for British citizenship under the current rules within the first two years of the scheme’s roll out.

Migrants on the Highly Skilled Migrant Programme (HSMP) should not be affected by the new scheme. Individuals will be able to apply for and be granted Indefinite Leave to Remain under the Immigration Rules that were in place at the time of their HSMP application.

Originally, the ‘earned citizenship’ scheme was due to be implemented at the beginning of 2011. The UKBA has now postponed this and earned citizenship will be introduced in July 2011. Consequently, a greater number of migrants already in the UK will be able to adjust to the new system and should have time to apply for ILR under the current rules.

UK Work Permits Ltd is moving offices

UK Work Permits Ltd today announces that the business will be moving offices over the weekend of 9th – 11th October. The move, into a spacious suite within a fully equipped modern office building, is not expected to cause any disruption for our clients; however, access to some files may be restricted from 4 pm on Friday the 9th October.
Our new address will be as follows:

UK Work Permits Ltd
One Lyric Square
Hammersmith
London
W6 0NB

Visitors will continue to be seen by appointment only.

Telephone and fax numbers will remain:

Tel: 0845 226 4030
Fax: 0845 226 4033

All existing company email addresses will continue to function.

Immigration rules amendments:

On the 1^st October 2009, several significant changes to the immigration rules will come into place. The changes will affect the Sole Representatives category, Tier 1, and various other categories of the Points-Based System.

Changes to the Sole Representative category

A replacement category for Sole Representatives entitled ‘Representatives of Overseas Business’ will be introduced. The major change will be a new English Language requirement similar to the test already in place for Tier 2. There will be three different ways to fulfil the requirement. Applicants can either provide an English language test certificate, hold nationality of a majority English speaking country, or hold a degree level qualification taught in English. The changes will also require the new business in the UK to be concerned with the same type of business activity of the overseas business, and will reintroduce representatives of overseas media organisations back within the immigration rules after it was removed in 2008.

Changes to Tier 1 of the Points Based System

Under Tier 1, provisions for periods of study leave to be taken into account when calculating points for previous earnings have been deleted. The effect of this is that individuals can no longer claim points from earnings made prior to a period of full time study. The UKBA intend to make decisions based on an applicant’s recent work experience and earnings capability in order to establish a more current representation of ability to contribute to the UK’s labour market.

The list of circumstances under which a Tier 1 migrant is permitted to undertake certain work is being extended by the UKBA. Instructions agreed with the Department of Health mean doctors can be admitted onto the Foundation Programme or in to speciality training where their previous leave was not subject to conditions restricting their employment.

The Tier 1 (Post-Study Work) category will also be amended slightly to include migrants who have previously studied for an eligible qualification whilst in the UK in categories that did not prohibit studying. It had previously only been available to those in the UK as a Tier 4 migrant, on a student Visa, or family member visa. The Post-Study Work category will also acknowledge the eligibility of the Professional Graduate Diploma in Education.

Further amendments are being made to the Tier 1 (Entrepreneur) category which replaced the Business Person category in 2008. Those on the previous Business Person visa who wish to extend their stay in the UK will be automatically awarded 10 points for the English language requirement under Tier 1 and will not need to demonstrate their English language ability.

Changes to Tier 2 of the Points Based System

Various changes are being made to Tier 2 of the Points Based System, the majority of which are minor amendments.

With regards to the new category mentioned above, migrants in the new Representatives of Overseas Business category will be able to switch into Tier 2 from within the UK. The time spent in this category will also count towards the qualifying period of six months’ experience with a company for the purposes of applying for a Tier 2 Intra-Company Transfer (ICT) visa.

Under Tier 2 (ICT), the restriction preventing a migrant from owning more than 10% of his/her sponsor’s shares has been removed.

When applying for Indefinite Leave to Remain as a Tier 2 visa holder, the requirement to issue a further certificate of sponsorship to indicate a migrant is still needed by their employer has been removed. Written notification will be sufficient for the UK Border Agency which should be cheaper and more convenient for the employer.

The policy whereby Leave to Remain dates are calculated has been amended. An applicant’s sponsor will be able to request specific dates of leave, rather than the dates corresponding to when the application was decided. Further leave of up to three months can be granted to ensure the leave does cover both the dates of decision and the dates requested by the sponsor.

Maternity, paternity and adoption leave will be taken into account when considering migrants switching into Tier 2 (General) from the Tier 1 (Post Study Work) category and a new English language requirement, in line with the rest of Tier 2, will be introduced for Members of a Religious Order and Ministers of Religion.

Tier 4

Changes to Tier 4 are taking place to pave the way for the launch of the electronic Confirmation of Acceptance for Studies (CAS).For a short while however, the visa letters of acceptance will continue as an alternative to CAS. The requirement that course related work placements must not exceed half the total length of the course will no longer apply if a longer placement is required by UK statute. In addition, Tier 4 migrants will be linked more closely to their sponsor by an amendment preventing studying at any institution other than that of the sponsor.

All of the above changes will be taking place on 1^st October 2009. For further details on any of these changes or information on how these will affect you, please contact us.

UK Border Agency launches public consultation

On 9^th September 2009, the UK Border Agency launched a running consultation with the public concerning the fees it should charge for its immigration and visa services. The consultation will be open until 1^st December 2009 and will be accepting views and ideas from both stakeholders and the general public. The survey focuses on Earned Citizenship, due to be introduced in 2011; but the consultation is also being used to gather general views and opinions on other services and fees such as the premium appointments.

You can take part in the consultation by clicking here.

Changes to the Points Based System – The UK Border Agency accepts the MAC’s recommendations

During the summer of 2009, the Migration Advisory Committee (MAC), an independent review group, were tasked with providing evidence-based analysis and advice to the government on migration issues, in particular, Tier 2 of the Points Based System. In August 2009, the MAC published their report, recommending changes to certain elements of Tier 2 of the Points Based System in light of the current economic situation. A summary of these changes, due to be enforced soon, although not immediately, is detailed below:

Overall design and operation

The MAC’s analysis of Tier 2 has two major propositions: 1) that both the Resident Labour Market Test route and the Intra-company Transfer route be retained, and 2) that there is no economic case for restricting Tier 2 to the Shortage Occupation route only. The report commended the structure of Tier 2 for being well designed to achieve its intended economic aims, but reported insufficient resources and lack of penalties in enforcement of  these rules. In their report the MAC made sixteen recommendations. The Border Agency has today announced that all of these recommendations (confirmed below) have been accepted and will be implemented:

1.      The UK Border Agency has agreed to consider whether specific professional qualifications will be regarded as the equivalent to National Vocational Qualification (NVQ) level 3, or bachelor’s or master’s degree when allocating points under the new PBS system;

2.      Master’s degrees will be awarded 15 points under Tier 2, instead of the current 10;

3.      The minimum threshold for prospective yearly earnings will be increased. 5 points will now be awarded for an annual salary of £20,000 or more, instead of the previous £17,000;

4.      The points awarded for prospective earnings will be changed; 20 points will be given for prospective annual salaries of least £32,000 rather than £24,000. In effect, this means that for roles not on the Shortage Occupation List, individuals without any qualifications must have prospective earnings of at least £32,000 per annum in order to qualify;

5.      The minimum threshold for gaining 10 points in earnings has been changed to an annual salary of £24,000, and for 15 points, £28,000;

6.      An extra category will be created, allowing those in occupations in key public service areas such as teaching and nursing to claim an additional 5 points under the Resident Labour Market Test route.

Resident Labour Market Test route

7.      It has been confirmed that this current route will not be removed;

8.      The UK Border Agency will change the duration for which a vacancy must be advertised, to ensure resident workers have longer to apply. All employers will be required to advertise vacancies for a period of four weeks before offering the position to non-EEA nationals;

9.      The UKBA may introduce a new certification regime, designed to identify ‘high risk’ employers and verify that they have correctly completed the Resident Labour Market Test.

Intra-company Transfer route

10.  Following the MAC’s recommendations, the Intra-Company Transfer route will not be abolished;

11.  However, as per the MAC’s suggestions, this route should not lead to a right to permanent residence (Indefinite Leave to Remain);

12.  The period for which an employee must be employed by their company overseas in order to qualify under this route will be increased from 6 months to 12 months;

13.  For graduates, a separate scheme will be created under which the employee will be required only to have worked for the overseas branch for 3 months. Under this scheme, employees will be granted a maximum of 12 months’ leave to remain in the UK;

14.  The UKBA has agreed to consider devoting increased resources to the enforcement of immigration rules and penalties for employers.  The present level of resources has been deemed insufficient by the MAC’s report, which also called for further transparency in implementing these rules. This recommendation has been accepted.

Allowances for Tier 2 immigrants:

15.  The UK Border Agency has agreed to the recommendation that allowances should form a lower percentage of earnings. The current maximum is 30%. The MAC appears to have suggested that this be reduced to 25%.

16.  The UKBA and HMRC have both agreed to consider the scope for sharing information, particularly on specific immigrants and their intentions. Both have also agreed to investigate potential abuse of the points-based and tax systems.

The UK Border Agency has not yet announced exactly when they intend to implement these changes, although it would appear that a date at the start of 2010 is likely. At present, the current rules are not affected. The MAC are currently preparing their next report on recommendations for Tier 1 and Shortage Occupations, due to be released this autumn. UK Work Permits Ltd will publish further information on these changes, and when they are due to be implemented as this information is released by the UK Border Agency.

For any clarification on these changes or a free assessment as to how these changes will affect you or your employees, please contact us.