Changes to Immigration Rules published with some to take effect on 24 November 2016

The Home Office recently published its Statement of Changes to the Immigration Rules. These set out, amongst other changes, a number of key changes to the Tier 2 sponsorship regime. Unless otherwise stated, these changes take effect from 24 November 2016. 

The changes reflect the first of two phases of changes expected to Tier 2 and were previously announced by the Government in March 2016 , following a review by the independent Migration Advisory Committee.  The next set of changes are expected to take effect in April 2017.

We recommend that employers take advice to ensure that they are not caught out when the new Immigration Rules take effect.

Changes to Tier 2 (General)

Changes to salary thresholds

For Certificates of Sponsorship assigned on or after 24 November 2016, the minimum salary for experienced workers will increase to £25,000 per annum (increased from £20,800).  The minimum salary under each SOC code will still apply if this is higher than £25,000 per annum. 

An exemption from this increase will apply 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 new entrant salary rate will remain at £20,800 per annum.

As a transitional arrangement, the new threshold will not apply to workers sponsored in Tier 2 (General) before 24 November 2016, if they apply to extend their stay in the category. 

However, the Government intends to increase the minimum salary threshold for Tier 2 (General) experienced workers to £30,000 in April 2017.  There will be no such transitional arrangement for applicants who were sponsored between 24 November 2016 and April 2017 so those making extension applications after that time will need to meet the £30,000 annual salary threshold.

In addition, from April 2017, most Tier 2 migrants applying for indefinite leave to remain (settlement) must be paid a minimum salary of £35,000, irrespective of when their sponsorship began.  The £35,000 earning requirement will not however apply to anyone in an occupation on the shortage occupation list and to scientists and researchers in PhD level occupations.

Changes affecting recent graduates

There have been some helpful changes for those sponsors who are employing recent graduates. Extra weighting will now be given within the Tier 2 (General) limit (currently 20,700 per year) to businesses sponsoring UK graduates to return from overseas.  

Graduates will also be allowed to change roles within a company once they have secured a permanent job at the end of any training programme without the need for the company to advertise the new role and without the need for the Tier 2 migrant to apply for fresh leave to remain.

Changes affecting nurses

Nursing will remain on the shortage occupation list until July 2019 but employers will be required to carry out the Resident Labour Market Test before recruiting a non-EEA national nurse. This means that nurses will not have to meet the £35,000 salary threshold when applying for indefinite leave to remain for as long as the role remains on the shortage occupation list.

Changes to Tier 2 (Intra-company Transfer)

Changes to salary thresholds

For those Tier 2 migrants whose Certificates of Sponsorship are assigned on or after 24 November 2016, the minimum salary for applicants under the Tier 2 (ICT: Short Term Staff) sub-category has been increased from £24,800 to £30,000 for new applicants.

We are still expecting the exemption from the Immigration Health Surcharge of £200 per year of leave for applications under Tier 2 (ICT) to be removed.  However, the Home Office has not yet confirmed when this will take effect.

Closure of Tier 2 (ICT: Skills Transfer)

The Home Office is following through with its plan to close the Tier 2 (ICT: Skills Transfer) sub-category to new applicants from 24 November 2016. This sub-category currently allows employees who work at overseas linked companies to pass on their skills to UK colleagues or to gain skills and knowledge needed from the UK to perform their role overseas. The individual does not need to have been with their employer overseas for a set period of time.

Changes affecting graduate trainees

The Tier 2 (ICT: Graduate Trainee) sub-category allows employees from overseas linked companies to transfer into a UK graduate trainee programme for specialist roles. The individual must be a recent graduate with at least three months’ experience with the overseas employer.

For those applying in the Tier 2 (ICT: Graduate Trainee) category with a Certificate of Sponsorship assigned on or after 24 November 2016, the salary threshold will reduce
from £24,800 to £23,000.  In addition, the number of individuals that can be sponsored by an employer within this sub-category  has been increased from 5 to 20 per year.

Immigration Health Surcharge

The Immigration Health Surcharge is currently payable by Tier 2 (General) migrants and their dependants at a cost of £200 per year per migrant and each dependant.  This money is intended to be used to help to fund the NHS.   We anticipate that, from April 2017 at the latest, this will also apply to Tier 2 (ICT) migrants and their dependants, which will significantly increase the cost of transferring someone to the UK under the Tier 2 (ICT) category.
 
More Tier 2 (ICT) migrants to be able to stay in the UK for over 9 years

Most Tier 2 (ICT) migrants may only remain in the UK for up to five years, after which they must leave and are not able to apply for indefinite leave to remain.  From April 2017, it is expected that those Tier 2 (ICT) migrants who earn at least £120,000 per annum will be able to remain in the UK for up to nine years.  At the moment, they need to earn at least £155,300 per annum to benefit from this provision.

Requirement for one year’s previous experience with the overseas employer to be removed for certain Tier 2 (ICT) migrants

At present those applying under Tier 2 (ICT: Short Term) and Tier 2 (ICT: Long Term) must have worked for the overseas linked company for at least 12 months.  From April 2017, this requirement is likely to be removed for those earning at least £73,900 per annum.

Other changes

Genuineness

A change affecting both Tier 2 categories is that the time given to applicants and sponsors to respond to requests for further information in relation to queries from the Home Office as to whether the role is genuine is being reduced from 28 calendar days to 10 working days.  Employers are therefore advised to act promptly and seek advice as soon as they receive any correspondence from the Home Office.

Overstayers

The current 28 day ‘grace period’ for overstayers will be removed.  This policy  meant that any period of overstay of up to 28 days would be disregarded when making a further immigration application.

The position going forward will be more onerous and out of time applications will be refused  unless the application was made within 14 days of the expiry of the applicant’s leave and the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, as to why an in time application could not be made.

Skills levy

It is expected that, in most cases, from April 2017 Tier 2 sponsors will have to pay a skills levy of £1,000 per Tier 2 migrant per year.  This will very significantly increase the costs of sponsoring someone under Tier 2. It is expected that there will be a lower fee of £364 per migrant per year for small businesses and charities.  We understand that there are likely to be exemptions for PhD occupations, Tier 2 (ICT: Graduate Trainees) and for Tier 4 students switching into Tier 2. 

For more information on any of the issues raised, please contact Kerry Garcia, kerry.garcia@stevens-bolton.com, or any other member of the Immigration team at Stevens & Bolton.

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Kerry Garcia

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