UK Business Immigration Update and Guidance on the Changes to Tier - - PowerPoint PPT Presentation

37 Offices in 18 Countries

UK Business Immigration Update and Guidance on the Changes to Tier 2 of the Points Based System from 6 April 2012

Supinder Sian Shanti Faiia

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Today’s Presenters

Supinder Sian Senior Associate supinder.sian@ssd.com Direct: +44 (0)20 7655 1741 Mobile: +44 (0)754 593 5617 Shanti Faiia Associate shanti.faiia@squiresanders.com Direct: +44 (0)20 7655 1378 Mobile: +44 (0)7912 000 580

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Introduction

• Summary of changes from 6 April 2012
• Summary of changes from 14 June 2012
• Tier 2 General cooling off periods
• Renewing your Sponsor licence
• Premium sponsor scheme
• Visitors carrying out Permitted Paid Engagements

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Summary of Changes from 6 April 2012

Increased control of movement into the UK

• Maximum period of leave under Tier 2 limited to six years
• applies to migrants who entered the UK under the Tier 2 rules in place

from 6 April 2011

• initial period of leave granted for up to three years
• extension of leave granted for up to three years
• Tier 2 (General) migrant will continue to be eligible for settlement after

five years continuous leave in the UK

• Migrant must apply to settle in the UK prior to the expiry of their leave
• r leave the UK once they have come to the end of the maximum six

year period of leave

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Summary of Changes from 6 April 2012

• A Tier 2 (General) cooling off period of 12 months will apply
• New requirements for settlement in the UK:
• migrants must be paid at or above £35,000 per annum if they entered

the UK under the rules in place from 6 April 2011 (some exceptions)

• where the going rate in the relevant UK Border Agency Code of

Practice is higher, the migrant must be paid the higher rate

• the £35,000 threshold will be in place until April 2018

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Summary of Changes from 6 April 2012

Switching into Tier 2 relaxed for some with closure of Tier 1 (Post Study Work) on 6 April 2012

• Tier 1 (Post Study Work) migrants no longer required to show they

have been working for current employer (Tier 2 Sponsor) for at least six months

• NB Tier 1 (Post Study Work) migrants must now satisfy the Points

Based System maintenance requirements

• Resident Labour Market Test not required for migrants who have

current leave to remain under Tier 1 (Post Study Work) or student categories and if applying within the UK (some exceptions)

• Students switching into Tier 2 may start work with Tier 2 employer

provided:

• Tier 4 or student leave is valid
• Tier 4 or student leave permits work

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Summary of Changes from 6 April 2012

• Changes to rules surrounding curtailment of a migrant’s leave

under Tier 2

• If a migrant fails to start work or has ceased his work e.g. due to

sponsorship ending or a period of unpaid leave in excess of one month (some exceptions) the UKBA will cut short his permission to enter or remain in the UK

• Ties in with sponsor reporting duties – IMPORTANT!
• UKBA will now pursue curtailment if a migrant has more than 60 days’

leave remaining (this has been reduced from six months)

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Summary of Changes from 14 June 2012

• Minimum skill level increase from NQF4+ to NQF6+
• 27 occupations no longer qualify under Tier 2, including Office

Managers, IT Operations Technicians, Financial and Accounting Technicians, Business and Related Associate Professionals and Marketing Associate Professionals

• SOC codes valid from 14 June 2012 published on UKBA website
• Transitional arrangements apply for migrants already in the UK

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Summary of Changes from 14 June 2012

• Resident Labour Market Test relaxed
• Roles paying £70,000 to £149,999 per annum will no longer need to be

advertised in Job Centre Plus

• Advertising in at least one approved medium still required e.g. a suitable

internet job search site specified in the pertinent SOC code

• Sponsor will be able to select best candidate for PhD level occupations rather

than the ‘most suitably skilled’ resident worker

• Roles paying at or above £150,000 per annum will continue to be exempt

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Summary of Changes from 14 June 2012

Increase in maintenance funds for Tier 2

• Main applicants
• Tier 2 main applicant will need to show minimum £900 of available

funds for every day of a consecutive 90 day period immediately prior to submission of an application for leave to enter or remain

• A-rated sponsor may still certify maintenance on CoS for first month of

employment

• Dependants
• Dependants will be required to show minimum £600 of available funds

every day of a consecutive 90 day period immediately prior to submission of an application for leave to enter or remain.

• A-rated sponsor may still certify dependants’ maintenance funds in a

letter, but will be certified for the first month of dependant’s leave

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Tier 2 (General) Cooling off Periods

Tier 2 migrants who leave the UK (because their sponsorship has come to an end) without qualifying for settlement will be required to spend a period of 12 months outside the UK before they may reapply to enter the UK in any Tier 2 category (some exceptions for Tier 2 ICT)

• The 12 month “cooling off period” will start from the date the Tier

2 visa expires even if the migrant left the UK before the end of that visa

• A 12 month “cooling off period” will also apply to migrants

switching out of Tier 2 while in the UK and who later wish to reapply under Tier 2 (General) – likely to be rare

• The 12 month “cooling off period” will apply to any migrants

applying for leave to enter the UK after 6 April 2012

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Tier 2 (General) cooling off periods Scenario A

Possible scenarios where the cooling off period will apply include: Scenario A John, a US national, was sponsored by his employer under Tier 2 (General) to come to the UK as a Director of the company for the maximum initial period of three years. John accordingly obtained entry clearance valid from 1 April 2012 to 31 March 2015. John travels to the UK and starts work on 1 April 2012. In December 2012, circumstances change and John moves back to the US. His employer in the UK reports the end of his employment on the SMS and withdraws sponsorship. John will be unable to apply to come back to the UK under Tier 2 until 31 March 2016, 12 months after the expiry of his leave. NB: if the UKBA takes action to curtail John’s leave, the 12 month “cooling off” period will apply from the date his leave is curtailed to

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Scenario B Lucy is sponsored under Tier 2 (General) to work as an Investment Analyst with leave valid from 1 April 2012 to 31 March 2015. Lucy decides she wants to branch out on her own and switches her status to Tier 1 (Entrepreneur) on 4 January 2014, investing into her own company in the UK. Things don’t work out and six months later, Lucy decides she really needs a job again. She is offered a job by a Tier 2 sponsor who want her to apply for Tier 2 status and to start work in August 2014. Lucy cannot apply to switch her status back to Tier 2 until 3 January 2015, 12 months after she switched out of Tier 2. NB: in this scenario, Lucy will not be able to start work under her Tier 1 status as she is limited to taking employment for the business she has established.

Tier 2 (General) cooling off periods Scenario B

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Scenario C Billy, an Australian national working in the UK under Tier 2 (ICT), returned to Australia on 31 December 2011 when his leave

• expired. Billy was offered a job with a new employer in the UK

starting on 1 April 2012. His Tier 2 Sponsor assigned him a Tier 2 General CoS in February 2012 but due to a family emergency in Australia he only made his application for entry clearance on 10 April 2012. Billy’s new application would be refused because he has held leave under Tier 2 within the last 12 months. He will only be able to apply to re-enter the UK under Tier 2 (General) from 31 December 2012. NB Tier 2 sponsors must be aware of when the “cooling off” period is likely to kick in so that recruitment and training strategies are in place to ensure business needs continue to be met in a timely way

Tier 2 (General) cooling off periods Scenario C

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Renewing your Sponsor licence

Tier 2 of the PBS has been in place since 27 November 2008

• If a licence was granted before 27 November 2008, it will expire
• n 27 November 2012
• In all other cases the licence expiry date will be four years from

the grant of the licence

• You MUST apply to renew your licence before it expires
• If you are sponsoring migrants and do not renew your licence in

good time:

• You will not be able to assign any more CoS
• Any Tier 2 migrants working for you will have their leave curtailed to

60 days

• Your details will be removed from the Sponsor register and you will be

treated as a new Sponsor if you apply again

• If there is a gap between the expiry of the licence and renewal you

may therefore need to re-conduct a Resident Labour Market Test for any migrants previously sponsored by you

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Renewing your Sponsor licence

• Applications to renew must be made on the SMS up to three

months before the licence expiry date

• Procedure for renewing your Sponsor licence:
• Level 1 User submits application on SMS
• Level 1 User makes online payment for licence fee (£1,500 for a large

sponsor and £500 for a small sponsor)

• UKBA decides whether checks are necessary e.g. of documents listed

in Appendix A or a compliance visit

• UKBA will extend the expiry date of the licence to allow time for

checks, if necessary

• Provisions are in place for sponsors with a suspended or

dormant licence e.g. if migrants are sponsored under a dormant licence due to a TUPE transfer

• No refund if the renewal application is refused

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Premium Sponsor Scheme

• UKBA launching of Premium Sponsor scheme in Tier 2 and Tier

5 on 6 April 2012

• Available only to A-Rated Sponsors who pay appropriate fee

– £25,000 per annum for Premium Sponsor – £8,000 per annum for SME+ Sponsor (more limited benefits)

• Allows access to range of optional premium service benefits e.g.

access to UKBA Licence manager and Senior Account Manager; priority access to fast track processing in UK, improved checking and update service

• Tier 2 and Tier 5 applicants supported by a Premium Sponsor may

request immediate return of passport(s) without this withdrawing the application – useful where travel required

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Visitors carrying out Permitted Paid Engagements

• New visitor category for those carrying out a Permitted Paid

Engagement (PPE) in the UK for a limited period

• Maximum one month leave to enter the UK (cannot apply in the

UK)

• Limited to:
• Visiting examiners or assessors
• Visiting lecturers
• Designated overseas air-pilot examiners
• Qualified lawyers providing advocacy, arbitration or an alternative form
• f dispute resolution for legal proceedings within the UK
• Professionals in the arts, entertainment and sporting sectors
• Must meet usual visitor requirements
• Engagement to be evidenced by invitation and applicant to show

it relates to his area of expertise and/or qualifications and full time occupation overseas

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Today’s Presenters

Supinder Sian Senior Associate supinder.sian@ssd.com Direct: +44 (0)20 7655 1741 Mobile: +44 (0)754 593 5617 Shanti Faiia Associate shanti.faiia@squiresanders.com Direct: +44 (0)20 7655 1378 Mobile: +44 (0)7912 000 580

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Disclaimer

• The information contained in this presentation is for general

information purposes only and should not be construed as giving the ground for any action or omission in connection with the above material.

• This presentation should not be construed as professional

advice on legal or any other matters.

• The examples given in this presentation are described with a

level of detail that does not provide for their implementation without additional comprehensive review with due regard to specific relevant facts and circumstances.

• The application of laws and statutes may vary depending on

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• n the basis of the information contained herein.