December 06, 2012

The UK Border Agency (UKBA) has published its November 2012 Statement of Policy changes for various work authorization schemes, clarification as to when the “cooling-off” period commences and the permissible absence for Indefinite Leave to Remain (ILR). In addition, the UKBA has also launched pilot program, the Priority Postal Service, designed for a certain number of Tier 2 renewal applications to be filed and processed on a “super-expedited” basis

December 13, 2012 Changes to Tier 2 ICT Category

Highly-Paid Senior Staff: For the majority of Tier 2 (Intra-Company Transfer) migrants, the authorized period of stay in the “Long Term Staff” sub-category will continue to be capped at a maximum of five years. Please be reminded that this category does not lead to settlement (i.e., Indefinite Leave to Remain or “ILR”) and this category retains the 12-month “cooling off” period for overseas workers intending to return at a later time to work in the UK.

The UKBA has made slight revisions to the Tier 2 “Long Term Staff” category that will allow senior ICT staff earning an annual salary of at least £150,000 to extend their maximum stay from five years to nine years.

“Cooling-Off” Period: The UKBA will revise its guidance for all Tier 2 categories to allow the cooling- off to commence from the earliest date that the foreign worker demonstrates he or she has departed the UK rather than starting the cooling-off period from the date of expiry or curtailment of Tier 2 leave.

Please note that proof of departure from the UK will be the foreign worker’s responsibility. While final guidance has not yet been issued on what qualifies as definitive proof, possible examples would be submitting the worker’s departing flight tickets, letter from the UK company confirming his or her departure date and/or an update posted to the UKBA’s Sponsorship Management System (SMS), or a combination of all the aforementioned examples. It will be on the worker to demonstrate that he or she has left, and has remained outside the UK, earlier than the expiry of their leave.

Allowable Absence when Applying for ILR – The UKBA recognizes that skilled workers require flexibility to travel abroad for business during their non-immigrant stay in the UK. The new regulation will clarify that absences of up to 180 days in each of the calendar period of 12 months for the qualifying period of continuous residence will be permitted.

The qualifying period for Tier 2 General = five years of continuous residence.

The qualifying period for Tier 1 Entrepreneur/Investor = two to three years, depending on level of investment.

Priority Postal Service Pilot Program

In November 2012 the UKBA implemented an online application program, the Priority Postal Service Pilot Program or “PPP”, whereby a daily maximum of 30 online Tier 2 renewal applications will be accepted by the UKBA for processing within approximately two weeks. (The route for submitting traditional postal applications is currently taking at least six to eight weeks.)

Those applicants wishing to participate can submit their applications via a qualified UK immigration supplier or at prioritypostalrequests@homeoffice.gsi.gov.uk. The UKBA will select a daily maximum of 30 requests on a first-come, first-serve basis. Applicants chosen to participate will receive an e-mail confirming the next steps to submit their full renewal application within 24 hours.

Please bear in mind that as this is newly-implemented pilot program that will require applicants to follow closely the instructions. Applications are advised that submitting their biometrics (e.g., fingerprint scans, digital photographs) must take place at a designated postal facility rather than with a local UK Enquiry Office.

Based on the program’s success, the UKBA may consider broader implementation of this service.

ACTION ITEMS FOR EMPLOYERS

The UKBA is taking steps to solicit the UK business community’s needs to accommodate highly-skilled workers. The above changes reflect the UKBA’s willingness to relax some of the more onerous conditions for Tier 2 ICT workers and their families, particularly for highly-paid long-term staff that are critical to establishing and promoting foreign investment in the UK.

Tier 2 renewal applicants (employees and family members) are invited to take part in the new PPP but are reminded to either work with their UK immigration supplier to review the guidance and submit the online application in a timely fashion. Employees and family members should expect to remain in the UK for at least two to three weeks for processing of their renewal applications.

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.