Immigration update

We set out below some forthcoming changes to the immigration rules which will impact employers who sponsor employees under Tier 2 of the points based…

We set out below some forthcoming changes to the immigration rules which will impact employers who sponsor employees under Tier 2 of the points based system. It is important for employers who have a Tier 2 sponsor licence to keep up to date with these changes which will impact who will be eligible for sponsorship.  

We also highlight a recent case which upheld the Home Office’s decision to revoke a Sponsor Licence.

Tier 2 changes

A number of Tier 2 changes will come into effect on 6 April 2017. These follow other changes which were introduced in November 2016.

  • Immigration Skills Charge: From 6 April 2017, an Immigration Skills Charge will be introduced so that employers who sponsor migrant workers under Tier 2 will be required to pay £1,000 per person per year.  A lower rate of £364 will apply to certain smaller businesses and charities. This means that employers may have to pay up to £5,000 per migrant worker they sponsor to come to the UK on a five year Tier 2 (General) visa on top of standard visa charges. There are some exemptions where the Immigration Skills Charge does not have to be paid: for certain PhD job codes, Tier 2 (Intra-Company Transfer) applicants, Graduate Trainees and those switching in to Tier 2 from Tier 4.

  • Minimum Salary Threshold increase: Tier 2 (General) minimum salary threshold for experienced workers will increase to £30,000 (or the higher rate for that job), from the current £25,000 which has applied since November 2016. There will continue to be some exemptions to this for some health and education professionals (until July 2019). ‘New entrants’ will also continue to have a minimum threshold of £20,800 (or the higher rate for the job).
     
  • Criminal record changes to certain Tier 2 SOC codes: From 6 April 2017, migrant workers who are over 18 and applying to come to the UK under certain social care, health and teaching SOC codes will be required to produce a criminal record certificate from any country in which they have lived for over 12 months (consecutively or cumulatively) in the last ten years. This affects those applying for entry to the UK under 26 specific SOC codes, and any dependants over the age of 18. Employers who are within the effected job codes and who have a Tier 2 Sponsor Licence should factor in the potential delays this could have on applications made after the 6 April 2017 due to the international processing times for the required criminal certificates. 
     
  • Expedited service for Sponsor Management System (SMS) requests: UKVI have introduced a new premium service option for SMS requests, including requests for additional Certificates of Sponsorship (CoS) which are made throughout the year. Licence holders will now be able to pay an additional £200 to have their request prioritised. This will come as good news for many sponsors, given that the current standard processing time for this is 18 weeks. 

Home Office was right to revoke Sponsor Licence: Experience India Limited v The Secretary of State for the Home Department

We have previously reported on cases in which the Courts have upheld the revocation of a Sponsor Licence in circumstances in which the employer has breached certain compliance duties. In November 2016, the Court of Session heard a similar case - the outcome of which was to confirm that the Home Office had not acted unlawfully in revoking a Tier 2 Sponsor Licence.

The employer, Experience India Limited, had its Tier 2 Sponsor Licence revoked in February 2016. While UKVI provided several grounds for this revocation, the appeal itself predominantly focused on the decision by UKVI that the employer had breached the “genuine vacancy test”.  This was mainly because one worker did not meet the skills level required, he had been assigned a Certificate of Sponsorship for a role that was not genuine and the role undertaken by him did not match the job description specified. Similar concerns were also highlighted in relation to eight other workers which were also a basis for the revocation. Experience India argued that UKVI had to prove some kind of “intentional deception” by the sponsor in terms of the genuine vacancy test. 

However, the Court stated that dishonesty was not a necessary prerequisite for the revocation of a sponsor licence. It was sufficient that UKVI was satisfied that the sponsor had committed a breach which was specified in the Policy Guidance as giving rise to mandatory revocation. It did not matter whether or not the sponsor had acted in a dishonest way.

The Court echoed previous decisions in relation  to the revocation of a sponsor licence, stating that being a sponsor was a “fragile gift” and that the Home Office reserved the right to use a “light trigger” in deciding both when and with what severity she should act when faced with a breach.

This Judgment should serve as a reminder to employers of the very high standards of compliance that are expected.

What does this mean for me?

If you are proposing to sponsor employees in the near future you should check if the increased salary thresholds might impact your plans. You will also need to budget for the increased costs of the Immigration Skills Charge.  It is clear that being a Tier 2 sponsor is becoming more burdensome, both administratively and financially. Ensuring that your compliance processes are up to scratch is fundamental.

Elaine McIlroy (elaine.mcilroy@weightmans.com) is a Partner in the Employment, Pensions and Immigration Team and is based in Glasgow. If you require any advice on your obligations as a Tier 2 sponsor, please contact Elaine or speak to your usual Weightmans advisor.

Remember that Weightmans can support you to comply with all aspects of UK business immigration law.

If you are concerned about Right to Work checks we can help you to identify any areas of risk. For information download our flyer on fixed price right to work audits.

We can also keep you on track with our fixed price mock compliance visits, to ensure your procedures comply with UKVI requirements.

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