Immigration Changes: How HR Teams Can Ensure Compliance

Guest blog by  Shara Pledger, Solicitor at Latitude Law

November 2016 saw a published Statement of Changes to the Immigration Rules, and many of these changes took effect on 24 November 2016.

Amongst the amendments was the implementation of the first of two phases of changes to Tier 2 (the second is coming April 2017), as well as new rules relating to the validity of applications and how they are processed.

While many of the individual changes are not radical, their effect impacts how HR teams should act in relation to their existing and future non-settled workforce.

Changes specific to Tier 2

Tier 2 General
The route has seen several amendments, with the major difference being an increase to the minimum acceptable salary for experienced workers (an increase from £20,800 to £25,000). HR teams should be aware of this rise, and ensure that they are meeting the new minimum threshold when assigning Certificate of Sponsorship (CoS) to experienced employees.

While the increase to the acceptable minimum salary for experienced workers is significant, and it reflects the approach taken to Tier 2 to make it more exclusive, in practice this latest amendment will have limited impact. Many of the existing Codes of Practice under which workers are sponsored already have experienced salary rates which exceed £25,000, and the increase to the minimum figure is subject to transitional provisions, meaning that only individuals who are new to the Tier 2 route are currently affected. As a result, any individual already employed by your business (or sponsored under Tier 2 elsewhere) is not subject to the £25,000 baseline increase at this time.

Unfortunately, restricting the impact of the rule changes in this way can create practical difficulties for HR teams. Experienced workers seeking a CoS from your business will now be subject to different minimum salary rates dependent on whether they already hold Tier 2 sponsorship or are new to the route. The starting point should always be the Codes of Practice, which in most cases will dictate a salary which meets the new threshold regardless of the individual’s current status, but where this is not the case, care must be taken to ensure that the correct minimum salary will be paid.

The second phase of changes to Tier 2 will take effect in April 2017, and this will see a further increase to the minimum salary rate, to £30,000. There will be no transitional provisions applicable to that increase, so HR teams should be advised that if assigning an extension CoS to workers from April 2017, a steep increase in salary may be needed. Be aware that the proposed rule changes do not specify that this increase relates to experienced staff only; it may additionally apply to new entrants, which would entail a huge leap from the existing £20,800 minimum for such staff.

Other changes to Tier 2 General include:

  • Maintaining the inclusion of nurses on the shortage occupation list, with some amendments;
  • Further restrictions to the ability of Tier 4 students to switch to Tier 2, including a requirement for their Tier 4 course to have been completed with a registered UK university or higher education institution. Note that the exemption from the resident labour market test remains if these new conditions are met by a student applicant.

As always, HR teams are advised to check current rules and guidance prior to assigning a CoS, to ensure compliance with the Tier 2 regime. This will be especially important in April 2017, when more wide-reaching amendments are due.

Tier 2 Intra-Company Transfer (ICT)

There are several changes made to the ICT route, including the closure of the Skills Transfer sub-category to all new applicants. There are also amendments to minimum acceptable salary levels, with Short Term sponsored individuals requiring an increased salary of at least £30,000 per year, and Graduate Trainees enjoying a slight reduction to £23,000. HR teams should also be aware that the Graduate Trainees sub-category is being expanded, with the number of places available per sponsor increased from 5 to 20 per year. This route is therefore now a more accessible method of transferring new-entrant staff from overseas offices, albeit for a limited period of 12 months.

Other changes to the Immigration Rules

All employers are subject to the Civil Penalty Scheme relating to the employment of illegal workers, and the scheme is not affected by the recent changes to Immigration Rules. HR teams should be aware that in order to retain lawful status in the UK, an individual must apply to extend or switch their immigration category before their existing leave expires. If an individual applies late, for the duration of the application period, that person will have no permission to work in the UK.

On 24 November 2016, the deadline for submitting an application as an overstayer was reduced from 28 days to 14 days, with a stricter approach introduced to assess whether late applications will be accepted at all. This means that fewer individuals are now able to submit applications after their leave expires, and more people will be required to leave the UK and apply for a new visa instead.

HR teams should be especially vigilant in ensuring that workers submit their applications before their leave expires; it is less easy for a Tier 2 worker to re-apply from overseas due to the 12-month cooling-off period imposed on those who wish to return to the UK in the Tier 2 category, and so there can be serious breaches in continuity of employment in the event of an application made even one day late. Employers should bear this in mind if it is necessary to make requests for CoS allocations for existing staff via the Sponsor Management System; we would normally recommend submitting such requests at least 18 weeks before your employee’s leave expires.

Author: Editorial Team

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