Tier 2 the noose continues to

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1 magrath LLP Tier 2 the noose continues to tighten As part of a continuing drive to tighten the rules around sponsorship of foreign nationals and the ability of those nationals to settle permanently in the UK, the Government introduced a number of rule changes in Spring 2012 which have had a major impact on employers developing an immigration strategy for their workforce. The most significant of these can be summarised as follows: 1. A foreign national who is applying from outside the UK for entry clearance as a Tier 2 (General) migrant must not have had permission to be in the UK as a Tier 2 migrant during the 12 months immediately preceding the date of applying. There will be no exceptions to this rule. This is important as employees In this edition: Tier 2 the noose continues to tighten Sponsor Licence Renewal Supreme Court Judgement on PBS Polcy Changes to the Immigration Rules for Family Migration who have been in the UK under the Intra Company Transfer route who are looking to take permanent employment here, will not be able to apply for entry clearance until they have spent a period of at least 12 months outside the UK. 2. It is also not possible to switch from an Intra Company Transfer category to the Tier 2 (General) category unless the foreign national was sponsored under the Intra Company Transfer scheme under the rules in place for long term ICTs prior to 06 April They must also be changing sponsor in order to qualify. This means that Intra Company Transferees cannot switch into Tier 2 (General) status. Tier 2 (General) migrants will be permitted to remain in the UK for a maximum period of six years. It will become eligible to apply for indefinite leave to remain after five years, however if they do not make this application they will have to leave on the sixth anniversary. continued on page 2 immigration Magrath Insight Summer 2012

2 In order to qualify for indefinite leave to remain, sponsored migrants will have to prove that they are being paid 35,000 per annum or the appropriate rate as set out in the relevant codes of practice for the type of job they fill, whichever is higher. The 35,000 salary requirement will come into effect for applications from April 2016 and will remain at that level until The Tier 1 (Post Study Work) route has closed. However, those employees who currently hold a Tier 1 (Post Study Work) status are able to switch into Tier 2 (General) and they no longer have to complete six months prior employment with the employer. It is also not necessary advertise the role externally (Resident Labour Market Test) for these individuals. Foreign nationals residing in the UK under Tier 2 as students will be able to switch into Tier 2 if they can demonstrate that they have completed a UK recognised bachelors or post graduate degree or 12 months study in the UK towards a UK PhD. From June 2012, the requirement to advertise externally on Job Centre Plus no longer applies where the salary is 70,000 or higher. Although it is still a requirement to advertise in one other approved medium (such as a suitable recruitment website) for all jobs that attract a salary of less than 150,000. Intra Company Transfers If applying from outside the UK, applicants must not have had permission to be in the UK as a Tier 2 migrant at any time during the 12 months immediately before the date of application unless they are applying under the long term category and have last had permission to be here under one of the following categories: Short term Intra Company Transfers; or Graduate Trainee Intra Company Transfers; or Skills Transfer; or Under the rules in place before 06 April 2012 Summary of Tier 2 changes If applying from outside the UK, Migrants must not have had entry clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of application. This means that a Migrant will not be able to apply for entry clearance until 12 months after their visa/ leave to remain as expired, regardless of the date the Migrant left the UK. There are no exceptions to this Rule. Tier 2 ICT Migrants cannot switch into Tier 2 General unless they were last granted leave as a Tier 2 Migrant under the Rules in place before 6 April 2010 or in the Established Staff sub-category under the Rules in place before 6 April They must also be changing sponsor in order to qualify. Tier 4 students will be able to switch into Tier 2 if they can demonstrate the following:- They have completed a UK recognised Bachelors or post graduate degree; or They have completed a UK Post Graduate Certificate in Education or Professional Graduate Diploma of Education; or They have completed a minimum of 12 months study in the UK towards a UK PhD; and The Migrant must have studied for the course at a UK institution that is a UK recognised/listed body or which holds a Tier 4 sponsor licence; The Migrant must have studied the relevant course during his last grant of leave OR during a period of continuous leave which includes his last grant of leave; The Migrant s period of study/research must have been undertaken whilst they had valid leave that was not subject to a restriction preventing him/her from undertaking that course/research Migrants who have been granted leave under Tier 2 General under the Rules in place from 6 April 2011, will be granted an extension for a further 3 years to bring their leave up to a total of 6 years. The maximum period of time that can be spent in this category is 6 years and if a Migrant leaves the UK at this point they will be subject to the 12 month exclusion period. Migrants granted leave under Tier 2 General under the Rules in place from 6 April 2011, will only be granted leave for 6 years in total. They must either apply for ILR before this date (i.e. upon completion of 5 years in the UK under this category) or leave the UK before the expiry of their stay. Grants of leave under Tier 2 have been standardised. For leave to remain applications, leave will be granted for the period of sponsorship plus 14 days or 3 years plus 14 days from the date of the decision, whichever is shorter OR up to a period of 6 years less the time already spent in the UK as a Tier 2 Migrant. Changes to maintenance From 14th June, Maintenance levels under Tier 2 have been increased as follows:- Tier 2 Migrants from 800 to 900 continued on page 6

3 Supreme Court Judgement on PBS Policy The Supreme Court has given judgment in the case of R (on the application of Munir and another) (Appellants) v Secretary of State for the Home Department (Appellant) and R (on the application of Alvi) (Respondent) v Secretary of State for the Home Department (Appellant). The Secretary of State for the Home Department enjoys a power under the Immigration Act 1971 to issue Immigration Rules to govern the entry, stay and residence of persons who do not have the right of abode in the UK. The question before the Supreme Court in both cases concerned what the meaning of the words The Rules requires and more importantly the procedure by which rules are placed before Parliament for their scrutiny and consideration. In Alvi the issue for the court was the impact of the failure to include the Standard Occupational Classification Code of Practice (SOC), which set out the conditions to be fulfilled by employers when recruiting foreign nationals, within the Immigration Rules. Policy guidance and codes of practice are not placed before Parliament for scrutiny and consideration in the way that substantive immigration rules are. The question for the court was whether the requirements within these policy documents have the status of rules and should therefore be made subject to parliamentary scrutiny before acquiring full legal effect. In Munir the questions concerned former extra statutory policy DP5/96 which governed the circumstances in which Indefinite Leave to Remain would be granted to parents of those children who resided in the UK for more than 7 years: whether this constituted a rule which had to be laid before Parliament for its scrutiny, and whether withdrawal of the policy also required Parliamentary scrutiny. In both cases the Supreme Court found that the substantive criteria defined the Rules as any requirement which, if not satisfied, will lead to an application for leave to enter or to remain being refused is a rule within the meaning of section 3(2). A provision which is of that character is a rule within the ordinary meaning of that word. Lord Dyson The key requirement is that the Immigration Rules should include ALL those provisions which set out criteria which are or maybe determinative of an application for leave to remain. In the case of Alvi the Supreme Court held that "Any requirement which, if not satisfied by the migrant, will lead to an application for leave to enter or remain being refused is a rule within the meaning of Section 3(2)". A "rule" that must be laid before Parliament by way of the procedure under Section 3(2) of the Immigration Act Therefore, in Alvi the failure to include the SOC Code containing determinative criteria within the Rules meant that the Immigration Rules were incompatible with the Immigration Act 1971 because the SOC codes had not received Parliament scrutiny. As a result any substantive criteria contained in the Immigration Rules were unlawful and should not be applied. In Munir the Supreme Court found that the policy did not have the character of a Rule because it was discretionary in its nature and application: For that reason it therefore did not need to be laid before Parliament. The implications of the Judgement are enormous. From now on the Immigration Rules must be written in a way so that they contain each and every criteria to be met by an applicant, including criteria only previously set out in policy guidance, in order for Parliament to be in a position to scrutinise the Rules properly. Equally, any decision made to refuse an applicant leave to remain based on criteria not contained within the Immigration Rules but rather contained in policy guidance, SOC codes, shortage occupation lists or other extraneous documents used will be an unlawful decision. We are aware that the government will make changes to the Immigration Rules to come into force on 20 July in order to safeguard their lawful operation. The immediate changes to the rules will mean that for future applicants under the visitor, PBS and family routes the position has not changed. However, applicants who have had previous refusals may have appeal options worth pursuing and should take advice immediately.

4 Sponsor Licence Renewal The UKBA introduced the Tier 2 Sponsor Licence system in November 2008 which replaced the previous Work Permit system. Companies were duly required to submit a Sponsor Licence application. A granted Sponsor Licence is valid for 4 years and thereafter, should the organization continue to require their Sponsor Licence, a renewal request can be made for a licence period of a further 4 years. Many sponsor licences will therefore fall for renewal this November. To submit a renewal application, the Sponsor must do so online via the online Sponsor Management System (SMS). Once the request has been submitted a Submission sheet will be generated which will need to be completed, signed and sent to the Sponsor Licensing Unit. The UKBA will assess the Sponsor Licence details and history. Should further documentation be required then the Sponsor Licensing Unit will write to request any information or documents and will have to be sent to them within 7 calendar days. If the documents are not submitted then the UKBA can refuse the application and the fee will not be refunded. A further application can be made before the Sponsor Licence expiry date. Visit by the UKBA The UKBA may want to undertake a visit in connection with the application. The UKBA can then either: a) grant the application to renew your licence b) downgrade the licence to a B rating c) revoke the licence Sponsors cannot submit the application more than 3 months before their Sponsor Licence is due to expire, unless they have been given a special invitation by the UKBA (please see below for further details). Renewal applications can take up to 3-6 weeks to be granted therefore we would advise that a request is made as soon as it is possible in order to receive confirmation in advance of a Sponsor Licence expiry date. Sponsor Licence Renewal Government Fees Premium Scheme - Large Enterprises - 25,000 Premium Scheme - SMEs - 8,000 Tier 2 Large Sponsor Licence - 1,500 Tier 2 Small Sponsor Licence Tier 4 Sponsor Licence Tier 5 Sponsor Licence Tier 2, Tier 4 &/or Tier 5 Licence (where sponsor currently holds T4 or T5 licence) - 1,000 Special Invitation to renew in advance of the 3 month renewal period The UKBA have started to contact Sponsors which have recorded frequent and high usage of the SMS. Notifications have been made to the relevant Authorising Officer/Level 1 user to offer an earlier renewal request and fast track treatment of the application. This special service has been offered in order to show the Sponsor the benefits of paying the higher Premium Scheme fees of 25,000 or 8,000 in order to obtain a range of additional services. The renewal applications received as part of this early invitation exercise will be assessed by the Premium Service support team, who will notify sponsors within 7 days if the application is valid. Following confirmation of a valid application, the team will complete all the checks required as part of the renewal review process. Secondly, they will also consider any outstanding change requests such as changes to key personnel and organisation details. Finally, the licence will be extended for a further 4 years from the day after the current licence expires. The UKBA have not confirmed how long this process will take. Sponsors who have been offered this special service will be able to submit a renewal request an extra month before the usual 3 month window for making the request on the SMS. Failure to renew Sponsor Licence If the licence expires at the end of this period and is not renewed, sponsors will no longer be licensed. This means that: a) They cannot assign any more CoS; and b) The UKBA will reduce the leave of any migrants you are currently sponsoring to 60 days, during which time they will be allowed to find a new sponsor. If they do not make a further application before their leave expires they must leave the UK or face enforced removal; and c) The company details will be removed from the online public register of licensed sponsors. Conclusion To prepare for the renewal of an organisation s Sponsor Licence we would advise that thorough checks are made to ensure that all details on the Sponsor Licence are correct and that all sponsor duties have been complied with. Where an audit has not been carried out for a long period of time, we would recommend that you contact us for further information to prepare for a visit by the UKBA. Should there be any updates required then we would advise that a request is made via the SMS in advance of your Sponsor Licence Renewal.

5 Changes to the Immigration Rules for Family Migration The Government has introduced a statement of changes in Immigration Rules to be laid before Parliament shortly which are expected to come into force on 09 July An overview of the changes and a detailed analysis of the various new requirements are to be found in the Statement of Intent: Family Migration dated June 2012 that can be found on the UKBA website. They represent the most significant changes to routes to settlement in the UK for non-eea family members for twenty years and are a further example of this government s intention to appear tough and robust on migration issues. In summary, the main changes are as follows: Article 8 ECHR The Government will provide a clear basis for considering immigration family and private life cases in compliance with Article 8 of the European Convention on Human Rights via new Immigration Rules reflecting the qualified nature of Article 8 and setting out requirements which balance the individual right to respect for family life with the public interest and safe guarding the economic wellbeing of the UK. The Government will seek to redress the balance that has perceived to have moved in the favour of individual migrants through the development of immigration case law to the detriment of the public interest. Minimum income threshold The new immigration rules will introduce a minimum income threshold of 18,600 to sponsor the settlement in the UK of a non-eea partner. There will be a higher threshold to sponsor a child under the age of 18 before the partner reaches settlement and an additional 2,400 for each further child. The relevant minimum income threshold will apply at every application stage: entry clearance / leave to remain, further leave to remain and indefinite leave to remain. Genuine relationships The UKBA will publish new guidance setting out a list of factors associated with genuine and non-genuine relationships, as an objective basis for casework. Probationary period for settlement The minimum probationary period for settlement for a non-eea spouse, civil partner, unmarried partner or same sex partner will be five years, to test the genuineness of the relationship. Automatic settlement The new rules will abolish immediate settlement on arrival in the UK for the non-eea spouse or partner where the couple have been living together for at least four years overseas. Adult dependant relatives Non-EEA adult dependant relatives will only be able to settle in the UK if they can demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds. English language From October 2013, all applicants for settlement will be required to pass the Life in the UK test and present an English language speaking and listening qualification at B1 level or above, unless they are exempt from the requirement to do so. Dependants of Points Based System migrants The requirements for settlement of a five year probationary period (on a route to settlement) and to present English language qualification at B1 level will also be applied to the partners of migrants with a route to settlement under the Points Based System (PBS). These changes represent further systemic exclusionary reform in line with the Home Secretary s policies of the last two years and will form the subject of extensive debate and representations. They will, over time, undoubtedly lead to a considerable body of new case law as appeals make their way through the system.

6 Tier 2 the noose continues to tighten continued from page 2 Dependants from 533 to 600 No points will be awarded for maintenance where the specified documents show that funds are held in a financial institution with which the UKBA is unable to make satisfactory verification checks. This rule which previously applied to Tier 4, has been expanded to include all PBS Migrants and dependants. A-rated sponsors that certify maintenance on behalf of a Tier 2 Migrant s dependant(s) must certify maintenance for the first month of the dependant s leave, rather than the first month of the Tier 2 Migrant s employment. This is contained in the statement of changes the PBS dependant guidance is yet to be released. Tier 1 PSW Migrants switching into Tier 2 General will now need to satisfy the maintenance requirement (previously, proof of employment with the sponsor provided the UKBA with guarantee that they were able to support themselves financially); Other changes and issues Children born in the UK to PBS Migrants are able to have their stay regularised as dependants of PBS Migrants. Migrants should either apply for entry clearance for their new born children or apply incountry before travelling abroad. Appropriate enforcement action should be taken by the UKBA to curtail a Migrant s leave to 60 days if they have ceased work for a month or longer, according to Tier 2 Guidance. The UKBA s definition of ceasing working = if the Migrant continues to be employed by but ceases working for the sponsor for a month or longer unless solely due to maternity, paternity or adoption leave or long term sick leave. Curtailment of leave could present an issue with respect to determining when the 12 month exclusion period applies. The 12 month cooling off period under Tier 2 applies from the date the Migrant s visa/leave to remain expires. If the Migrant s employment ends prematurely and the UKBA do not take appropriate enforcement action to curtail leave to 60 days quickly enough, it may be difficult to ascertain when a Migrant is able to re-enter the UK under Tier 2. magrath LLP solicitors 66/67 Newman Street London W1T 3EQ tel fax This newsletter is for information purposes only. The information and opinions expressed in this document do not constitute legal advice and should not be regarded as a substitute for legal advice. For further information on our legal services please see above. Magrath LLP Solicitors 2011