Senior care workers and immigration

Law Centre (NI) Information Briefing This briefing was compiled for an advice and training session for UNISON members. Senior care workers and immigration Changes to Tier 2 of the Points Based system The Tier 2 (General) category is for foreign nationals who have a skilled job offer to fill a gap in the workforce that cannot be filled by a settled worker. Before applying for residence under Tier 2 (General), a person must have: a sponsor; and a valid certificate of sponsorship. On applying, s/he is awarded points based on her/his: salary and allowances; sponsorship; English language skills; and available maintenance (funds). A person can apply under the skilled worker category (Tier 2 General) if s/he is: applying for permission to enter the UK (known as 'entry clearance') under the sponsored skilled worker category (Tier 2 General); in the UK with permission to stay (known as 'leave to remain') in an immigration category that allows her/him to switch into the sponsored skilled worker category (Tier 2 General); already in the UK as a sponsored skilled worker (Tier 2 General) and wants to extend her/his permission to stay within her/his existing category. How long can a person stay for? A person who applies from outside the UK and is given permission to come to the UK under Tier 2 (General), will be able to live and work in the UK for a maximum of three years and one month, or the time given on the certificate of sponsorship plus one month, whichever is shorter. This period must begin no more than fourteen days before the start date given on the certificate of sponsorship. If already in the UK in a different immigration category, a person may be able to apply to switch into the Tier 2 (General) category. If the application is approved, s/he will be given

permission to remain for a maximum of three years, or the time given on the certificate of sponsorship plus fourteen days, whichever is shorter. This period will begin on the start date given on the certificate of sponsorship. If the application is decided early, extra leave will be added between the date of decision and the start date on the certificate of sponsorship. A person can apply to extend permission to stay under Tier 2 (General) if s/he is already in the UK in this category. If the application is approved, s/he will be given an extension to stay by another two years, or the time given on the certificate of sponsorship plus fourteen days, whichever is shorter. If the application is decided early, extra leave will be added between the date of decision and the start date on the certificate of sponsorship. If a person currently has permission to stay as a work permit holder, s/he can apply under the transitional arrangements to extend permission to stay by another two years, or until her/his total stay in the UK is five years in an eligible category, whichever is the longer. This period will begin on the start date given on the certificate of sponsorship. However, a person cannot extend her/his permission to stay for longer than the period given on the certificate of sponsorship plus fourteen days. If the application is decided early, extra leave will be added between the date of decision and the start date on the certificate of sponsorship. A person can apply for settlement once s/he has been in the UK in an eligible category for five years. The government has announced that it will remove eight occupations from the points-based system's shortage occupation list. If an occupation is on the shortage occupation list, this means that there are not enough resident workers in the UK to do the available jobs in that occupation. When the eight occupations are removed from the list, the number of jobs available to migrants under the list will be reduced from 500,000 to around 230,000. The government is also removing 71 professions from the list of 192 approved jobs under Tier 2 of the points-based system, as they have been deemed to be below graduate level. Under new rules introduced on 6 April 2011, anyone wishing to enter the UK under Tier 2 must be coming to do a job that is deemed to be at or above graduate level. The announcement on 6 April 2011 follows the government's decision to accept all of the Migration Advisory Committee's (MAC) recommendations following the publication of two reports looking at graduate-level jobs and the shortage occupation list for Tier 2. This is to meet the government's objective of raising the skill level of Tier 2 to National Qualifications Framework level 4 and above (NQF4+).

To bring the shortage occupation list into line with the rest of Tier 2, the MAC has recommended removing job titles including high integrity pipe welder, skilled meat boner and skilled meat trimmer and skilled senior care worker. The latter recommendation will not, however, affect care home managers and nurses working in care homes as these occupations are level NQF4+. Under the annual limit, employers will be able to bring only 20,700 people from outside the European Union to work in skilled professions under Tier 2 (General) of the points-based system. Prospective workers will need to have a graduate-level job offer, speak an intermediate level of English and meet specific salary and employment requirements. Applications for settlement Skilled migrants must now pass the Life in the UK Test if they want to demonstrate that they have met the knowledge of language and life (KOL) requirement for settlement in the UK. This new requirement affects applicants for settlement who are in the General Tier 2 category or work permit category (ie senior care workers) From 6 April 2011, migrants in these categories can no longer meet the KOL requirement by passing English for Speakers of Other Languages (ESOL) qualification, unless they are applying for settlement under transitional arrangements (see below). If a person enrolled on an ESOL course or gained an ESOL qualification before 23 November 2010, s/he can rely on that ESOL qualification in any applications for settlement, regardless of the date of the application. A person who enrolled on an ESOL course on or after 23 November 2010 will need to pass the Life in the UK Test if s/he applies for settlement on or after 6 April 2011. In addition further changes to the settlement criteria include: a criminality requirement for all applicants; a new income requirement, and reform of the English language requirement, for those on work routes. Changes to applications for settlement are now implemented in the Immigration Rules. Senior care workers From 6 April 2011, new work permits will NOT be issued to senior care workers unless they can meet the full requirements set out in Policy Guidance for General Skilled Workers under Tier 2.

It is unlikely that new applications for senior care workers will be successful because of the changes to the skills and salary levels. In order to succeed, senior care workers will need to have a job offer and a valid Certificate of Sponsorship with a Licensed Sponsor. The employer will need to show that there is no suitable settled worker and the employee must meet the following requirements: attributes 50 points, English language 10 points, maintenance 10 points. Attributes 50 points This is made up of Skills and Salary. Skills must now be at graduate level or equivalent (NVQ level 4 or above). Salary must be at rate set out in the published Codes of Practice for the relevant category - Section Q (no longer includes senior care workers). English Language 10 points Maintenance 10 points It is important to check the UK Border Agency s guidance carefully to establish whether or not the employee will gain the appropriate level of points for a Tier 2 work permit. Extensions of Stay in the UK if currently employed under a work permit as a senior care worker Skills criteria Certain exceptions to the changes in Tier 2 are set out in the transition provisions for those employees already working in the UK and to give employers time to change their recruitment practices for certain posts that are currently filled with foreign workers at a lower skill level. It also enables continuity of care provision within the sector in the short term. This also happened in 2008 when the points based system was introduced although care workers still featured on the list of skilled workers for sponsorship licenses. The skills criteria are waived for extension applications (ie graduate level) The criteria for SALARY CONTINUE TO APPLY This means that senior care worker jobs do not need to be at or above graduate level if the last grant was as a SENIOR CARE WORKER. An additional transitional measure exists for senior care workers who have had work permits approved prior to 31 December 2003. For those

workers, the salary criteria are also waived subject to the worker being paid at least equal to the minimum wage. Further exceptions have been made for some other categories of worker who were already in the UK working prior to April 2011. For instance, if a person was in the UK as a qualifying work permit holder s/he may still be able to extend her/his stay with a valid Certificate of Sponsorship that confirms the job is at or above NVQ level 3 and s/he is being paid at or above the appropriate rate for the job set out in the published Codes of Practice. A person who does not fall into one of the exceptions set out in the UKBA Guidance on Tier 2 for those already in the UK will need to meet the new graduate level requirement for Tier 2. If a person is applying from outside the UK or switching from another category or changing employment, different rules apply. Salary Internal caseworker guidance was published by the UK Border Agency about senior care workers in June 2008 following the introduction of the points based system. The guidance stated that there was no national or UK pay agreement in the social care sector. Employers set their own rates of pay for senior care workers and many senior care workers were low paid. However, it stipulated that new applications for sponsorship of senior care workers in the private sector should be paid at least 7.80 per hour ( 16,250 per annum for a 40 hour week). The rate applied across the UK as there was little variation regionally in salaries. It is not clear therefore how employers in Northern Ireland obtained new sponsorship licenses for senior care workers who did not earn this rate. The guidance stated that where employees were not earning this salary and could also not meet the skills criteria (NVQ 3 in 2008) then UKBA caseworkers should consider refusing on job alone. In instances where the skills criteria was met but the post was paid at below 7.80 per hour then it would be refused on salary. However it was thought this would be rare. It was anticipated that salaries in the public sector would be considerably higher. Exceptions were made under transitional arrangements in 2008 for those senior care workers paid at 7.02 per hour to allow them to extend their work permits even though their rate of pay was lower than that required for new workers. To make an application for an extension of employment as a senior care worker, a person must refer to the transitional arrangements set out in Transitional Arrangement D. A person can apply under this transitional arrangement if:

s/he is currently in the UK; and s/he was last granted leave as a senior care worker; and s/he has a Tier 2 (General) certificate of sponsorship reference number issued by a licensed sponsor; and the certificate of sponsorship confirms that s/he will be working as a senior care worker (SOC code 6115 - Care assistants and home carers); and the certificate of sponsorship confirms that the job is being paid at or above 7.02/ 7.80 per hour (as appropriate depending on when the person started working in the UK); and s/he has currently been in the UK as a work permit holder for a total period of less than five years. Under this transitional arrangement, a person not have to score points for her/his qualifications, her/his prospective earnings, the resident labour market test, her/his English language skills, or maintenance. Under this transitional arrangement, a person can apply to change employer, as long as s/he continues working as a senior care worker. If a person wants to change to another type of job, s/he needs to meet the full Tier 2 criteria. A person can apply for an extension for enough leave to take her/his total stay in the UK in an eligible category to five years, providing s/he continues with the same employer. If a person is applying to change employer, s/he can apply for an extension up to a maximum of three years. If s/he needs a further extension after this three years has expired, to take her/his total stay up to five years, s/he can submit a further extension application under these transitional arrangements. Where a person has currently been in the UK in an eligible category for five years or more and wishes to extend her/his stay, s/he must apply under the full points-based system criteria. Alternatively, s/he may apply for settlement subject to the further changes implemented on 6 April 2011 (see above). Law Centre (NI) 2011