Tag Archives: Tier 2

Further changes to the Tier 2 Intra Company Transfer and Tier 2 General routes

February 2017 –

The new Tier 2 & 5 Guidance has now been published following the changes introduced in November 2016.

Change of circumstance requests normally take up to 16 weeks to be processed. The Home Office has now launched a new fee paying service to expedite certain types of requests, which include requests for an increase of an unrestricted CoS allocation, requests to replace the Authorising Officer, requests to add a new Level 1 user etc… The service offers a 5 working day turn around at a cost of £200 per request.

The start date on the CoS can no longer be delayed by more than 4 weeks. If the sponsored worker is unpaid for more than 4 weeks from the original start date, the sponsorship must be withdrawn. It is therefore pivotal that the start date be chosen carefully bearing in mind possible delays with the entry clearance process resulting from, for example: – delays with IETLS score / police clearance; – no priority service availability; – prolonged notice periods etc..

The new guidance states that for compliance purposes all documents listed in Appendix D must now be kept for one year from the date the sponsor ends the sponsorship or until a compliance officer has approved them, whichever is the shorter period.

Keeping a detailed job description is no longer required as long as the copy of the advert includes the job title, main duties and responsibilities, skills, qualifications and experience needed together with an indication of salary package or salary range and the closing date for applications. A job description must still be held on file where no Resident Labour Market test has been undertaken.

Whilst there is still a requirement for sponsors to keep all applications shortlisted for final interview, the ‘interview notes’ are now only required for rejected settled worker applicants. It follows that if no settled workers have been interviewed, the sponsor is not required to retain reasons as to why other applicants were not offered the role. Settled workers are EEA nationals, British nationals and applicants with Indefinite Leave to Remain in the United Kingdom.

Tier 2 (General)

The minimum salary threshold has increased from £20,800 to £25,000 per annum.

The following professions are exempt from meeting the new salary threshold until July 2019: Nurses, medical radiographer, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin.

Roles aimed at UK graduates overseas will be granted additional points in the restricted CoS allocation assessment table.

Graduate trainees will be permitted to change their occupation within the graduate programme without having to undergo the Tier 2 process again.

Tier 2 (Intra Company Transfer)

The minimum salary threshold for Tier 2 (ICT) Short Term Staff has increased from £24,800 to £30,000 per annum.

The Tier 2 (ICT) Skills Transfer category is now closed to new applicants.

The minimum salary threshold for Tier 2 (ICT) Graduate Trainee category has decreased from £24,800 to £23,000 per annum. The cap has also increased from 5 to 20 graduate trainees per annum for each licenced sponsor.

Further changes to come in 2017

It is anticipated that by April 2017 further changes will be implemented. These changes will include:

– further increases to the minimum salary thresholds;
– closure the Tier 2 (ICT) short term category;
– introduction of a mandatory Immigration Skills Charge (‘ISC’) for all Tier 2 migrants, set at £1000 per annum at present.

If you need Immigration legal assistance, please do not hesitate to contact us.

Right to Work Checks – Workers and Employers Beware

July 2016 –The Home Office has tightened the noose on illegal working even further. This could have a considerable impact on foreign workers and employers alike if ignored.

LEGAL BACKGROUND

Sections 34 and 35 of the Immigration Act 2016 came into force on 12 July 2016.
Section 34 amends the Immigration Act 1971 by introducing a new offence of illegal working (section 24B).
Section 35 amends section 21 of the 2006 Act, which sets out the criminal office of employing an illegal worker.

ILLEGAL WORKING:

With effect from 12 July 2016, under section 24 B of the 1971 Act (as inserted by section 34 of 2016 Act) a person commits the offence of illegal working if he is:
• subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
• at the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:
• he has not been granted leave to enter in the UK; or
• his leave to enter or remain in the UK: – is invalid; or – has ceased to have effect (due to curtailment, or revocation, or cancellation, or passage of time); or
• is subject to a condition preventing the person from doing work of that kind.

In other words, a person commits this offence if they are subject to immigration control and work when they know full well, or have reasonable cause to believe, that they have not permission to do so.

The offence of illegal working is not limited to working under a contract of employment and is intended to cover all types of work, including apprenticeships and self-employment.

Under the new offence, wages from illegal working can be seized as the proceeds of crime. In England and Wales carries a maximum penalty of six months’ imprisonment and/or an unlimited fine. The fine is limited by status in Scotland and Northern Ireland.

EMPLOYING AN ILLEGAL WORKER

Section 21 of the 2006 Act (as amended by section 35 of the 2016 Act) an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. This means that an employer can no longer evade prosecution by claiming that they did not know that the employee in question had no permission to work.

The amended offence allows the investigating agency to prosecute employers when it is found that ‘the employer have reasonable cause to believe that the employee could not undertake the employment, even where they perhaps deliberately ignored the information or circumstances that would have caused the employer to know that the employee lacked permission to work.’

The offence of employing an illegal worker is not limited to staff under a contract of employment, it also applies to contracts of service or apprenticeship, whether expressed or implied, whether oral or in writing.

The maximum sentence on indictment for this offence has been increased from 2 to 5 years.
The civil penalty of up to £20,000 per illegal worker will continue to be applied as sanction in most routine cases – however the Home Office has warned that in serious cases, prosecution may be considered where it is an appropriate response to non compliance.

The UKVI have published a new guide, which can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf

The guide applies to checks required on or after 16 May 2014.

How easy is it to get a restricted certificate of sponsorship?

March 2016 – This is a question that we are asked on a daily basis by prospective sponsors.

The answer depends on many factors such as the nature of role, whether it is sufficiently skilled or not,  whether it is on the shortage occupation list or not, whether the salary offered is in line with the relevant code of practice, whether the resident labour market has been carried out in line with the UKVI’s requirements..etc.

We find that the less skilled and the less paid the role is, the less likely the application for a restricted certificate to be granted.

Even when the role has been advertised in line with the Home Office PBS Tier 2 requirements, the certificate can still be refused.

This will be the case when the Home Office is of the opinion that the advertising exercise is not genuine.

This will often happen when the selected candidate is already in the employment of the sponsor under another immigration category such as Tier 5. There is an inference that the employer never intended to find anyone else.

A refusal is also likely if the Home Office believes that the role has been ‘inflated’ so that to fit under a suitable code of practice.

When there are doubts, the Home Office (the sponsor compliance unit – Tier 2 limits team) will get back to the employer asking for additional documents and information prior to considering the request for the restricted certificate.  In most circumstances, employers will be required to provide a few job description for the role, a copy of the contract of employment for the role, a copy of all the advertising undertaken to recruit for the role specifying all the requirements the advertising in question needs to meet. Employers are also asked if the candidate has been identified for the role is already in their employment. If that is the case, employers are required to provide the candidate’s full name, date of birth and immigration status in the UK along with a copy of the candidate’s payslips for the last 3 months, the candidate’s last P60s and current job description.

If the employers is unable to provide the Tier 2 team with the required documentation before the 11th of the month, their application is held over to the following allocation date. If the Tier 2 team is unable to make the necessary verification checks before the allocation date the employer has applied for then the application will also be held over the following allocation.

For further information or an assessment of the chances of your application being approved, please contact us.

 

Impact of Criminal Record Certificate requirement on Tier 2 applications

August 2015 – The new criminal record certificate (CRC) requirement which will become applicable in September to all Tier 1 (investors and entrepreneurs) migrants, is now likely to be rolled out to Tier 2 out of country applicants in early 2016.

Pursuant to this new requirement, all applicants will be asked to provide a CRC from any country in which they have lived for 12 months or more in the 10 years preceding the filing of their visa applications. Any dependants aged 18 or above will also have to comply.

The impact of the CRC requirement on Tier 2 applicants and their sponsors will be felt immediately in terms of time and cost.

TIMING

The processing time for obtaining a CRC varies from country to country and can take much longer when the applicant is no longer a resident of the country in question. For instance, it takes a non resident approximately 4 weeks to 7 months to obtain a certificate from Pakistan, 5 to 8 weeks from Poland, 6 to 9 weeks from Japan, 2 to 5 weeks from Taiwan, 4 to 5 weeks from Russia and approximately 12 weeks from the US.

In most cases it will therefore be imperative that the CRC be requested from the outset of the visa process to avoid long delays.

COSTING

The initial cost is not in itself prohibitive (from as little as £1 up to approximately £80). However we need to bear in mind that all certificates not issued in English must be officially translated. In some occasions they may also need to be legalised and authenticated. This is very likely to add hundreds of pounds to what is already a very costly administrative process.

POTENTIAL ISSUES:

– There are countries where there are no functioning criminal record regimes or where certificates are only issued to citizens. Fortunately the Home Office has made a concession for applicants where there are no available checks from a particular country. However in these circumstances applicants will be required to provide evidence that the checks were not available, which is not always going to be feasible. Relying on this concession is likely to make the outcome of the visa application even less predictable.

– Certificates must be submitted in support of a visa application within 6 months of being issued. This restriction may lead to a new certificate having to be requested. This will be the case when, for instance, the applicant is dealing with multiple certificates and a certificate is no longer valid by the time the rest of the certificates have been issued.

In preparation for this new requirement sponsors would be well advised to prepare a list of the countries they or their employees are likely to have to obtain certificates from so that to check the information provided by the Home Office and make sure that the entire process is mapped out in advance. Employers/sponsors will also need to consider who will bear the costs associated to getting the certificate(s).

For further information please contact us.

From 1st Sep 2015 – Overseas criminal record required for Tier 1.

In April 2015, the Home Office introduced a new rule, which requires applicants to provide an overseas criminal record certificate from any country they have lived in continuously for 12 months or more over the past 10 years.

This change is very likely to slow down the visa/ entry clearance process considerably as in some countries it can take months to obtain a criminal record. In addition the certificates issued in a foreign language will also have to be officially translated.

Those who have lived in various countries before applying for a UK visa, could be facing a very costly and protracted process.

As the certificates will only be valid for 6 months from issuance, some candidates who have lived in various countries where the process is very lengthy, may find themselves in a position whereby one of their certificate has expired by the time the other certificate has been issued. To add to an already painful administrative process, some countries do not accept postal applications and demand that requests be filed in person (or via a friend or family or someone with power of attorney), even if the applicant is no longer resident there.

This new requirement will be introduced in phases, which will start with Tier 1 (Investor and Entrepreneur) applicants, and their adult dependants.

The requirement does not currently apply to extensions or in-country switching applications.

Further information can be found in the updated policy guidance on Tier 1 (Investor) and Tier 1 (Entrepreneur) which have been published today by the UKVI.

For further information please contact us.

April 2015 – NHS surcharge for applicants both inside and outside the UK

The government is set to recoup up to £1.7 billion over the next ten years to help pay for the cost of NHS treatment given to temporary migrants.

The Legislation that came into effect on 6 April means that going forward nationals from outside the European Economic Area (EEA) coming to the UK for longer than six months will be required to pay a ‘health surcharge’ when they make their immigration application.  This surcharge must also be paid by non-EEA nationals already in the UK, who are applying to extend their stay. The surcharge does not apply to Tier 2 Intra-company transferees, Nationals of Australian and New Zealand – below is a detailed list of all exemptions .

The health surcharge is £150 per year for students and £200 per year for all other migrants to whom the surcharge applies. It is payable upfront and for the total period of time for which migrants are given permission to stay in the UK.

So who is to pay the NHS surcharge?

Considering that a migrant worker coming to the UK for 5 years with 2 dependants, is liable for a charge of £3000, which comes on top of the actual visa fees of £3384, the surcharge will act as a very strong deterrent on most migrants. Sponsors are very likely to have to have to pick up the bill which in most occasions will double their HR immigration budget. As the NHS surcharge is non refundable, sponsors may consider including a claw back clause in the migrant’s contract.

Many of our clients have already commented that Tier 2 migrants contribute to the UK economy through taxation. Bearing in mind that they are subject to NI contributions, with this surcharge they will end up paying for the service twice. The Home Office’s response to this is: ‘the intended effect of the surcharge is that a person’s access to healthcare should be in line with their immigration status in the UK. Temporary migrants have not built up the long term contribution to the UK that a British Citizen will have built up and will build up over the course of their lifetime.’

Who is exempt from paying the surcharge?

A summary of exemptions is listed below.

Visitors, and where the grant of entry clearance (permission to stay in the UK) is for 6 months or less.

Intra company transfers (Tier 2 skilled workers).

Children under 18 years taken into care or in the care of a local authority.

Migrants making an application for asylum, humanitarian protection, or a claim that their removal from the United Kingdom would be contrary to article 3 of the European Convention on Human Rights.

Victims of human trafficking.

A migrant who applies under the Home Office concession known as the ‘destitute domestic violence concession’.

Dependents of a member of Her Majesty’s Forces.

As a dependant of a member of another country’s Forces who is exempt from Immigration Control.

Those making an immigration application related to an EU obligation, such as an application under the Turkish European Communities Association Agreement, are exempt.

Nationals of Australia or New Zealand.

A British Overseas Territory citizen who is the resident of the Falkland Islands.

What about the tourists, do they have to pay the health surcharge too?

No, Tourists travelling on a visitor visa [or EEA nationals] are not be liable for the surcharge. In fact from April 2015 those entering the UK on a visitor visa will be charged 150% of the cost of any medical treatment they receive from the NHS.

Please do not hesitate to contact us if you have any questions on any of the above.

November 2014 – Changes to Tier 2 and Tier 1 Investors & Entrepreneurs

Changes to the Immigration Rules affecting Tier 2, Tier 1 (Investors) and Tier 1 (entrepreneurs) applicants will take effect from 6th November 2014:

Tier 2

Going forward the UKVI  will have the power to assess whether a genuine vacancy exists.

This level of scrutiny will apply if and when there are reasonable grounds to believe either that the job offer does not exist, or that it has been re-drafted so that  to meet the Tier 2 skills threshold, or has been specifically tailored to exclude resident workers, or where there are reasonable grounds to believe that the applicant is not qualified to do the job.

In addition, sponsors will no longer be able to sponsor migrants to fill a position for a third party. In other words, sponsors, such recruitment agencies, for instance, will only be able to sponsor migrants destined to work within their own organisation rather than one of their clients.

IMPORTANT NOTE: Migrants can no longer be sponsored by umbrella organisations (such as payroll/administration/recruitment/placement entities) to work for third parties on a contractual basis.

Tier 1 (Investors)

The minimum investment threshold for those applying for leave to enter or remain in the UK as Tier 1 (Investor) migrants will be increased from £1 to £2 million. The top-up requirement will be removed.

The full investment sum (£2 million) will have to be invested in prescribed forms of investments (share or loan capital in active and trading UK registered companies, or UK Government bonds), rather than 75% of the sum as currently required.

Applicants will no longer be able to source their funds by way of a loan.

IMPORTANT NOTE:  Tier 1 (Investor) migrants currently in the UK under this category will not be subject to the changed requirements when applying for extensions or for indefinite leave to remain.

Tier 1 (Entrepreneurs)

From 6th November 2014, those applying in the UK must prove that the investment funds are held in the UK. Those applying for the accelerated route for Indefinite Leave to Remain will be required to show they have invested their funds as required by the rules.

For further information please do not hesitate to contact us.

 


 

 

 

2014 Certificates of Sponsorship – What, which and how?

To enter or remain in the UK as a Tier 2 General or Intra Company Transfer (ICT) Visa you must have been issued with a valid Certificate of Sponsorship (CoS) from a Tier 2 Licensed Employer/Sponsor.

A Certificate of Sponsorship (CoS) is a database record in the UKVI’s Sponsor Management System.

The Certificate of Sponsorship (CoS) is the points based system’s replacement of the work permit scheme, which existed under the previous employment immigration route.

A Sponsor will have to satisfy themselves that all mandatory Tier 2 employment requirements have been met, such as, for instance, the resident labour market test was carried out in line with the UKVI’s guidance, before assigning a live CoS to a migrant worker.

A CoS takes the form of a 10 digit Certificate of Sponsorship reference number, which the migrant worker will need to apply for a visa or a leave extension. Although not strictly compulsory, Entry Clearance and Immigration Officers tend to insist on being provided with a hard copy of the long version of the certificate’s contents rather than relying on the CoS number.

What is a Certificate of Sponsorship?

A Certificate of Sponsorship is a virtual document, which confirms that a UKVI licenced employer is sponsoring a foreign migrant to come or remain in the UK to work.
It is pivotal that the CoS is issued correctly if the migrant worker is be granted a visa or an extension of their leave.

Errors on the CoS may result in the visa or leave extension application being refused.

Mistakes may also be picked up during a UKVI compliance audit, which could have negative and very costly repercussions.
Sponsors found non-compliant may be fined and have their licence downgraded or even revoked.

There are two types of CoS:
▪ Restricted, AND
▪ Unrestricted

As a general rule restricted CoS are used for most out of country visa applications.

Unrestricted CoS’s on the other hand are used in support of in country leave extensions, which are not subject to the immigration cap.

What are Restricted Certificates of Sponsorship?

Restricted Certificates are subject to the immigration cap.

They are granted by the UKVI on a case by case basis.

To obtain a restricted CoS a Sponsor must submit an application to the UKVI by the 5th of the month. If granted the Sponsor will be able to assign the CoS to their selected migrant worker.

The award of restricted certificates is ruled by a points based system.
▪ Priority is given to the roles listed on the Shortage Occupation List, THEN
▪ Roles which require a PhD and is in the research field, THEN
▪ Roles with higher level salary for which the Resident Labour Market has been tested (i.e. the role has been advertised in line with the relevant code of practice).

What are Un-restricted Certificates of Sponsorship?

Tier 2 Sponsors are granted an allocation of unrestricted Certificates of Sponsorship on a yearly basis. The allocation is based on their usage of the scheme in the previous year and their forecast for the year ahead.

Unrestricted Certificates of Sponsorship can be assigned to:

▪ Intra Company Transfers (where an Tier 2 ICT license is held)
▪ Existing migrants who are extending their employment with the same employer within the UK under Tier 2 General or ICT;
▪ New employees (Tier 2 or Work Permit Holders) who are moving to a new employer within the UK under Tier 2 General;
▪ Those seeking admission into the UK to fill a vacancy attracting a salary of £153,500 or more as a Tier 2 General
▪ Tier 4 graduates who are switching into Tier 2 General within the UK;
▪ Tier 2 Sports People; and
▪ Tier 2 Ministers of Religion.

How to make changes to a certificate of sponsorship once assigned?

Sponsors must make sure that the migrant worker’s details are correct when they create and assign a CoS.

Sponsors can use the ‘sponsor note’ field on the SMS to amend minor errors identified after the certificate of sponsorship has been assigned.

Examples of acceptable amendments are corrections to a mistyped name or date of birth.

If the main details are incorrect, the Sponsor must cancel the certificate and assign a new one so that to ensure that the information are the same as the one in the migrant worker’s application.

According the the UKVI’s guidance, new certificate must be assigned when for example:
▪ the SOC code or tier/category is incorrect; or
▪ more than one of the migrant’s identifiable details need to be changed – such as a full change to the date of birth and nationality, or to the surname and date of birth.

The sponsor note field can only be used to notify changes on a live certificate of sponsorship. Certificates that have expired or been cancelled cannot be amended.

For further information please contact us.

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Express Online Checking Service – from £250

Express Checking Service clinic every Thursday – From £250 – EEA (PR), SET (O), SET (M), Tier 1 G, Tier 2, PBS dependant, Entry Clearance Applications.

Our express Checking Service is an optional service, which is available for a fee of £250 to £450 to applicants using the SET (O), SET (M), Tier 1, Tier 2, PBS dependant, Entry Clearance, application forms only.

This service is available by formal instruction only.

This service includes:

– checking you qualify under the immigration rules;
– checking you have filled the relevant form correctly;
– checking you have included the necessary documents;
– for Tier 2, checking that the certificate of sponsorship has been issued correctly, with the correct SOC code; and
– ensure your application is valid.

As part of our assessment, we will address issues such as criminal records, prolonged and / or unpaid absences, maintenance, self-employment, missing documents, unpaid NHS bills, recourse to public funds, SA200 discrepancies,..etc

Following our assessment you will be provided with a checking data sheet report including our comments and advice.

If following our report, you need further assistance from us, you will be charged the fees for the full service which will vary depending of the type of application you are filing.

The Checking Service will give you reassurance and peace of mind that your application is complete and correct.

Using the Checking Service does not guarantee your application will be successful as ultimately the decision lies with authorities.

For further information please contact us.

April 2013 – Same day Service – Changes to the premium PEO appointment booking process.

Since 6th April all customers booking an appointment with the PEOs are required to pay a £100 appointment fee per applicant in advance of attending their appointment.

The remaining £275 of their appointment fee is then be paid on attendance at the PEO, along with the standard application cost.

This process will also apply to representatives. The £100 fee is not an additional fee and was part of the newly revised £375 fee for premium service appointments which was announced on 25 February.

This change has been introduced by the UKBA in an attempt to reduce the number of wasted appointments and is also part of a wider series of IT and process changes to help them tackle the problem of harvested appointments.

Under the new process representatives continue to request appointments in exactly the same way (ie by emailing the representative booking request sheet duly completed on Monday at 9.00).  Once requests have been processed and appointments confirmed a booking reference number (BRN) is be sent.  Upon receipt of this information the representative is be required to call the Immigration Enquiry Bureau (IEB)  between 09:00 and 15:00, to make a payment of £100 for each person named on the appointment. Calls to pay the appropriate fee must be made by 15.00 on the next working day following confirmation of the appointment. If  payment is not made within this time frame, the appointment is cancelled automatically.

The payment information are transferred to another team in the Home Office who process the payment. Confirmation of payment is then dispatched by post to the registered cardholders address. (Subject to the postal service, this should reach you within 5 working days).

It is pivotal to note the importance of keeping the receipt in a safe place since the Home Office will not supply a replacement if lost and the applicant will not be allowed into the PEO without it.

Cancellations or rebooking can only take place up to 5  working days before the appointment. Failure to do so within this timescale or non-attendance will result in loss of the £100 appointment fee(s).

Since the launch of the new process there has been a large number of reported problems with the payment process and the delivery of the payment receipt. It is safe to say that it may take a few weeks before the current issues are ironed out. Even then with 3 entities (Home Office, the external payment processing provider and the Royal Mail) involved in the process, there is a lot of room for errors.

Whilst the lead time remains 6 to 8 week.

For further information please contact us.