UNITED KINGDOM: Immigration News
Several developments have been announced.
Immigration Act 2016 Enacted
The Immigration Bill has completed its passage through Parliament. The bill received Royal Assent on May 12, 2016, and was published on May 17, 2016, as the Immigration Act 2016. The bill creates a number of new criminal offenses of which both individuals and businesses need to be aware and for which they should plan to ensure that they do not fall afoul of the new law. A summary of some of the key proposed offenses is outlined below.
There is a new offense for an employee who works illegally. This offense applies where a person works when he or she has not been granted leave to enter or remain in the United Kingdom (UK), or the person’s leave to enter or remain in the UK is invalid or has ceased to have effect, or the person is subject to a condition preventing him or her from doing the work. The proposed offense is punishable by imprisonment for up to a maximum of 51 weeks (currently 6 months), or by a fine, or both. A person convicted of the offense may also have his or her earnings seized. “Working” is given a broad statutory definition that purports to cover an array of working arrangements.
Crucially for businesses, the bill includes an offense of employing an illegal worker. This offense covers a situation where a person employs an employee who is disqualified from employment by reason of the employee’s immigration status and the hirer has reasonable cause to believe that the employee is disqualified from employment by reason of the employee’s immigration status.
This offense has a broader application than its predecessor under § 21 of the Immigration, Asylum and Nationality Act 2006. This offense now can be tried on indictment and a maximum penalty of five years of imprisonment can be imposed. This offense is in addition to the civil penalties under § 15 of the Immigration, Asylum and Nationality Act 2006, under which a company can be fined for employing an illegal worker.
This new offense means that businesses in particular need to be much more diligent about ensuring the correct checks are made when hiring new employees to avoid criminal liability.
The bill creates an offense where a landlord knows or has reasonable grounds to believe that an adult is disqualified from renting as a result of his or her immigration status, yet allows the adult to occupy residential premises. There is also a separate offense where a tenant’s leave to remain in the UK expires during the term of the tenancy, the tenant continues to occupy the property, and the landlord is aware of this or has reasonable cause to believe this has happened but fails to notify the Secretary of State as soon as reasonably practicable.
Similar offenses apply to letting (leasing) agents when they carry out “right to rent” checks on behalf of a landlord and know, or have reasonable cause to believe, that a landlord will be entering into a tenancy agreement with a person disqualified as a result of his or her immigration status and fail to inform the landlord despite having sufficient opportunity to do so.
There are further powers relating to the provision of driving licenses. These include a power to search premises for a driving license belonging to someone unlawfully in the UK that has been revoked. There is also a criminal offense for failing to surrender a driving license that has been revoked on the grounds of immigration status without reasonable excuse. Finally, there is a new offense of unlawfully driving while in the UK. This offense criminalizes someone who is caught driving while unlawfully in the UK as a result of his or her immigration status.
This package of criminal offenses (which are designed to work alongside additional civil powers) makes it very difficult for people unlawfully in the UK to live a normal life. In addition, the new offenses now place onerous burdens on (often small) businesses to undertake checks on employees and tenants. The best way for businesses and landlords to ensure that they do not fall afoul of the criminal law is to ensure that the correct checks are undertaken, and that records of the checks are retained.
Changes to Tier 2
Following the publication of the Migration Advisory Committee (MAC)’s report on its review of the Tier 2 visa category in January 2016, the Home Office has announced details of the changes it will introduce for the Tier 2 visa route. Despite fears that the restrictive measures recommended by the MAC would be followed in their entirety, the government has adopted a more cautious approach in some areas and decided not to introduce some of the changes that would have been most damaging to businesses.
The changes will be introduced in two stages. The first tranche is expected to take effect in autumn 2016 (most likely with the October Rules changes). The second tranche will be implemented with the April 2017 Rules changes. They are as follows:
Autumn 2016 changes:
- There will be an increase in the Tier 2 (General) minimum salary threshold to £25,000 for experienced workers, maintaining the minimum threshold of £20,800 for new entrants.
- There will be exemptions from the increased Tier 2 (General) experienced worker salary threshold for nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin. The exemption will end in July 2019.
- The salary threshold for the Tier 2 (ICT) Short-Term route will be raised to £30,000.
- The minimum salary requirement for the Tier 2 ICT (Graduate Trainee) category will be reduced from £24,800 to £23,000, and the number of places available to companies will rise from 5 to 20 per year.
- The Tier 2 (ICT) Skills Transfer category will be closed to new applications.
- Extra weighting will be given to overseas graduates in the Tier 2 (General) monthly quota allocation, to make it easier for employers to score the necessary points to secure a restricted Certificate of Sponsorship.
- Employers will continue to be able to sponsor non-European Economic Area (EEA) graduates of UK universities without first testing the resident labor market and without being subject to the annual limit on Tier 2 (General) places. Graduates will also be able to switch roles once they secure permanent jobs at the end of their training programs, without the sponsors having to undertake resident labor market tests.
- The Immigration Health Surcharge will be introduced for the Tier 2 (ICT) category.
- Nurses will remain on the shortage occupation list but employers will need to carry out a resident labor market test before recruiting a non-EEA nurse.
April 2017 changes:
- The Tier 2 (General) minimum salary threshold will be raised to £30,000 for experienced workers.
- The Tier 2 (ICT) Short-Term category will be closed to new applications.
- The Immigration Skills Charge (ISC) will be introduced for employers of Tier 2 migrants. This will be £1,000 per migrant per annum (£364 for small businesses and those in the charitable sector). An exemption to the charge will apply to PhD-level jobs and international students switching from Tier 4 to Tier 2 (General).
- The high-earners’ salary for Long-Term ICTs will be reduced from £155,300 to £120,000.
- The one-year experience requirement in the Long-Term ICT category will be removed where the applicant is earning over £73,900.
- There will be a waiver of the resident labor market test and prioritization for Tier 2 (General) places where the visa grant(s) are in support of the relocation of a high-value business to the UK or, potentially, an inward investment project.
- The MAC’s recommendation of a 24-month period of employment to qualify for Tier 2 (ICT) will not be introduced.
- Following a review of allowances under the Tier 2 (ICT) categories, there may be some changes to the type and amount of any allowance that can be amalgamated with the base salary, to meet the minimum salary threshold.
These measures will be a relief to those employers running graduate recruitment programs, since the government has decided not to introduce any restrictions that would jeopardize these programs. Furthermore, the reduction in the high-earner threshold to £120,000 will remove more migrants from the annual limit on Tier 2 (General) places, leaving more available for those earning lower salaries. In addition, with regard to those Tier 2 (ICT) migrants earning more than £73,900, removing the requirement for 12 months of employment overseas will make it easier for sponsors to transfer these highly skilled migrants from their overseas offices to take up work in the UK at short notice.
It is unclear how the 12-month cooling-off period will apply to those Tier 2 (ICT) migrants transferring to the UK for a short period, once the Tier 2 (ICT) Short-Term route is closed in April 2017. Currently, Tier 2 (ICT) Short-Term migrants can return to the UK under the Tier 2 (ICT) Long-Term route without first having to spend 12 months overseas (known as the 12-month cooling-off period). Will migrants needing to come to the UK for short periods continue to be exempt from the cooling-off period if they are coming to the UK for three months or less and will this minimum period be increased if the cooling-off period will continue to apply?
Also, the finer details of how the ISC will apply to sponsors who are also paying an Apprenticeship Levy have yet to be clarified. It is hoped that sponsors will not be subjected to a double charge.
Tier 2 Migrants Taking a Sabbatical
The latest version of the Tiers 2 and 5 sponsor guidance took effect on April 6, 2016. The guidance includes changes to the reporting requirements for Tier 2 migrants who wish to take a period of unpaid leave or sabbatical. The prior position was that if a Tier 2 migrant took a sabbatical of 30 days or more over a single period, or over more than one period during any calendar year (January 1 to December 31), the employer could no longer sponsor the migrant and had to report this to the Home Office via the Sponsor Management System within 10 days. The new guidance stipulates that sponsorship of the migrant must now cease if the period of unpaid leave or sabbatical is four weeks or more. The four weeks is calculated according to the migrant’s normal working pattern. For example, if the migrant works three days per week, the four weeks would be 12 working days. In effect, this means that Tier 2 migrants must ensure that any unpaid leave or sabbatical taken is under four weeks.
The only exception is if the absence is due to maternity, paternity, shared parental, adoption, or long-term sick leave. In those cases, sponsorship of the Tier 2 migrant may continue throughout the period of the absence.
Delays in Production of Biometric Residence Permits
Some migrant employees have experienced delays in receiving their Biometric Residence Permits (BRPs). This is reportedly due to technical issues affecting BRP production that have led to a backlog. The Home Office expects that the backlog should be cleared shortly. The normal timescale for receiving a BRP is 10 working days from the date of decision.