March 19, 2013

The UK Border Agency (UKBA) has submitted to Parliament comprehensive changes to its Codes of Practice that will affect the adjudication all Tier (categories) of the current Points-Based System (PBS) and clarifications to the existing visitor rules to prevent “frequent and successive” visitors from establishing de facto residence in the UK.

What’s Changed?

On March 14, 2013, the UKBA issued its “Statement of Changes in Immigration Rules” that are to take effect on April 6, 2013 and will update the UKBA’s existing Codes of Practice.

Further details to changes to Tiers 1, 2, 4 and 5 (Tier 3 is currently suspended) can be reviewed in the UKBA summary and attachment of the entire Statement (HC 1039) (here).

http://www.ukba.homeoffice.gov.uk/sitecontent/newsarticles/2013/march/24-rules

This brief will summarize those changes affecting business visitors and changes primarily affecting UK companies intending to request Certificates of Sponsorship (CoS) on behalf of foreign national workers applying in the Tier 2 Category.

Proposed Changes to Visitor Rules

Currently, foreign nationals coming to the UK as a general visitor (business or tourist) are allowed to remain in the UK for a maximum of six months (or 12 months if accompanying an academic visitor).

The UKBA has announced that it intends to issue clarifications to the current visitor rules to prevent abuse by visitors who are living in the UK through “frequent, successive” visits.

The agency also intends to strengthen the rules for a third party who is providing support to a visitor (either financial support or accommodation) by requiring them to demonstrate they are able and intend to do so, and are legally present in the UK foreign nationals who intend to remain in UK as visitors for extended periods of time.

These new clarifications to the general visitor rules are to guard against abuse by those whose repeat visits amount to “de facto” residence.

Changes to Tier 2 Category

  • The ‘cooling off’ period of 12 months will no longer apply to Tier 2 sponsored migrants being paid at least £152,100 (approx. US$227,756) per year.
  • Intra-Company Transferees (“ICT”) earning £152,100 a year or more (i.e., “Senior Staff”) will be exempted from the English language requirement when they extend their stay in the UK beyond three years.
  • Although the 12 month prior employment rule will continue to apply to ICT short-term and long-term applicants, there will be no requirement to provide pay- slips for the qualifying period (unless the UK Border Agency specifically questions the applicant’s intra-group employment).
  • Employers will be given a flexibility to reduce salaries of sponsored Tier 2 migrants as long as it meets the minimum salary threshold as per the Codes of Practice and does not fall below the new thresholds being indicated below.
  • The existing Codes of Practice are being replaced to reflect changes to the codes contained in the Standard Occupational Classification (SOC) 2000 system. The changes also update the Shortage Occupation List and the Codes of Practice for Skilled Workers.
  • Availability of Restricted CoS (“RCos”) for Skilled Migrant Workers -The Tier 2 (General) limit will continue to be set as 20,700 places per year which will remain in place until 2014. This limit will continue indefinitely, unless amended by future changes to the Rules.
  • A clarification is being made to confirm that Tier 2 (General) migrants may apply for extensions to continue working in the same occupation (not just the same job) with the same sponsor, without a Resident Labor Market Test being required.
  • Changes are being made to the post-study work provision for students graduating in the UK to switch into Tier 2. Current Rules require such students to still have existing valid leave, and to have graduated during a period of continuous leave which includes their current grant of leave.

These requirements are being changed to state that breaks in leave of up to 28 days are acceptable, in line with the policy on over-stayers. The changes also clarify that undergraduate Master’s degrees are eligible under the provisions as well as postgraduate Master’s degrees.

Changes to Minimum Salary Thresholds (MST)

Under the new guidelines, the updated Codes of Practice keep the 25th percentile of the salary distribution for settled (i.e., experienced) workers. However, the revised guidelines will introduce a new, lower pay threshold for new entrant employees and will be set at the 10th percentile of the pay distribution for full-time employees in that occupation.

“New entrants” will be defined as applicants who are aged 25 and under on the date of their initial Tier 2 application, and who are applying as either UK graduates switching into Tier 2 (General) under post- work provision; graduate recruits where the employer has used a ‘milkround’ (an annual graduate recruitment program) to satisfy the Resident Labor Market Test or those who are sponsored in the ICT Trainee route.

The UKBA will also set new minimum annual salary thresholds as follows:

  • Tier 2 (General): £20,300 = approx. US$30, 397.
  • Tier 2 (General) Exempt from advertising in Jobcentre Plus: £71,000 = US$106,316.
  • Tier 2 (General) Exempt from annual limit and the Resident Labor Market Test: £152,100 = US$227,756.
  • Tier 2 (ICT) – Short-Term Staff, Skills Transfer and Graduate Trainee categories (depending on the category, maximum stays range from six months or one year): £24,300= US$36,387.
  • Tier 2 (ICT) – Long-Term Staff (maximum stay for up to five years): £40,600 = US$60,794.
  • Tier 2 (ICT) “Senior Staff” who can extend leave in the UK for up to 9 years has been raised from to £152,100 = US$227,756.
  • Tier 2 General and Tier 2 (Sportsperson) earnings which qualify for settlement: £35,500 = US$53,158.

Job Offers Must Meet Resident Labor Market Test Requirements

For most foreign professional workers that only qualify for a scheme requiring labor recruitment efforts, the Tier 2 (General) category is the traditional scheme through which UK companies sponsor overseas talent.

After April 6th, the prescriptive media of advertising are being removed from the UKBA’s Codes of Practice.

Instead, overarching advertising requirements and criteria for identifying suitable media will be set out. Please be advised that the UKBA will award points only for a job offer that passes the Resident Labor Market Test (RLMT). In addition, a sponsoring company’s Certificate of Sponsorship (CoS) must contain full details of when and where the job was advertised.

Changes to the Lists of Skilled Occupations

The UK Border Agency’s current Codes of Practice use the Standard Occupational Classification (SOC) 2000 system.

The UKBA is updating the skill lists and levels to reflect the new SOC 2010 system found below:

http://www.ukba.homeoffice.gov.uk/sitecontent/documents/employersandsponsors/pointsbasedsystem/cop-skilled-workers.pdf

This will affect the preparation of all CoS applications being prepared prior to April 6th and the timing of the applications for Restricted CoS’s filed in the months of March, April and May 2013.

Changes to the Shortage Occupation List

The Shortage Occupation List sets out skilled occupations where there are shortages of workers in the UK and Scotland and that can sensibly be filled by migrant workers.

Applicants working in shortage occupations are not subject to an RLMT and are also given higher priority when allocating places in the Tier 2 (General) limit. In addition, Shortage Occupation workers are exempt from the current £35,000 MST (or, after April 6th, £35,500) when they apply for settlement.

Changes are being made to update the lists of shortage occupations following a review by the Migration Advisory Committee (MAC).

ACTION ITEMS FOR EMPLOYERS

Companies are advised that comprehensive changes to the UKBA’s existing Codes of Practice are to be implemented by April 6th.

It advised that companies review with their UK immigration suppliers how comprehensive changes to all Tiers, particularly the preparation of CoS applications filed on or after April 6th, and forthcoming clarifications to the general visitor guidance.

BUSINESS VISITORS – Border officers may begin more closely scrutinizing those travelers who depart and re-enter the UK more than two to three times within a six month period (“frequent, successive”) or who are coming to the UK for extended periods (e.g., in blocks of six weeks or more).

Business travelers are reminded that regardless of whether their intended activities meets the UK’s business visitor guidelines, an individual should not be in the UK for more than 6 months out of 12. Specifically, traveling in “block” periods of time over the course of 12 months may risk creating the appearance of establishing “de facto” residence in the UK.

PREPARING CoS APPLICATIONS – For those CoS applications prepared prior to April 6th, please bear in mind that the ‘Job Type‘ field of the application will be need to be changed to a SOC 2010 job type.

SHORTAGE OCCUPATION LIST – As indicated above, the MAC is reviewing further changes to the occupations in this list and the UKBA will post the updated list in the near future. Companies wishing to submit a CoS under the Shortage Occupation scheme should contact their UK immigration supplier for further guidance.

TIER 2 (GENERAL) RCoS – A change will also be made to the timing of the monthly allocation for (RCoS).

Rather than accepting applications from March 6th to April 5th to be decided on April 11th, the UK Border Agency will accept applications from April 6th to April 17th. Decisions on these applications will be made on April 19th.

For the May 2013 allocation, requests for RCoS will be accepted from April 18th to May 5th and will be decided on May 13th.

The monthly allocation process for June 2013 will revert to the usual schedule (i.e., requests must be presented to the UKBA’s panel to the 5th of a month inclusive with outcomes due after the 11th of the same month.)

TRANSITIONAL ARRANGEMENTS

  • The changes do not affect applicants who have a CoS that was assigned before the changes come into force on 6 April 2013.
  • No work permit holders or Tier 2 migrants are prevented from extending their stay to continue working in the same job for the same employer as a result of their occupation being reclassified at a different skill level.
  • No RLMT need to be repeated as a result of these changes.
  • With the exception of minor revisions to the regulations, these changes will not affect nationals of European Economic Area (EEA) countries or Swiss nationals seeking entry or work/residence authorization in the UK.

Caveat Lector | Warning to Reader

This is provided as informational only and does not substitute for actual legal advice based on the specific circumstances of a matter. Readers are reminded that Immigration laws are fluid and can change a moment’s notice without any warning. Please reach out to your local Pro-Link GLOBAL specialist should you require any additional clarification. This alert was prepared by Glenn Faulk, Senior Manager, Knowledge Management. Pro-Link GLOBAL worked with our PLG | KGNM Correspondent Office in the United Kingdom to provide you this update.

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