Business Immigration: Post Election action points for UK employers
After the General Election in May, the new coalition Government announced that it would introduce a cap on working visas. The aim is to reduce the UK’s net migration figure (the number of economic migrants less those emigrating from the UK) down to ‘tens of thousands’. As part of that commitment, on 28 June 2010 the Home Secretary announced:
- There will be a cap on Tier 1 and 2 visas from 1 April 2011. Until 17 September 2010, there will be a consultation period with UK employers to determine what the limit should be and how it should work. The limit will be set by the independent Migration Advisory Committee
- Our Comment: all employers should have their say on the proposals, either directly to UKBA or through TW if you would like us to consider your comments in our submission.
- To avoid a rush in applications before April 2011, a temporary cap will be introduced from 19 July 2010 affecting all Tier 1 (General) and Tier 2 (General) applications overseas and some UK applications. The aim is to limit the number of Tier 1 (General) approvals to 2009 levels and to reduce Tier 2 (General) approvals to a level about 6% less than 2009 levels. To help achieve that the number of points required to qualify for a Tier 1 (General) visa overseas and for UK switching applications will rise from 95 to 100 with effect from 19 July. The interim restrictions will not apply to Tier 2 (Intra Company Transfer) visas or to Entrepreneur, Investor or Post Study Worker routes under Tier 1.
- Our Comment: employers should plan UK staffing requirements to ensure that to the extent possible, any new Tier 1 (General) or Tier 2 (General) applications by employees are made before 16 July, and that any other important staff transfers are made well in advance of 1 April 2011, in case a queuing system is introduced. Licensed sponsors should check their remaining allocation of Tier 2 (General) Certificates of Sponsorship and apply as soon as possible before 19 July if extra capacity is required. Extra certificates will only be issued after 19 July in exceptional circumstances.
The planned immigration cap will gain the headlines, but alongside this policy is an actual change in emphasis by UKBA on compliance checks and enforcement action. Compliance auditing goes hand in hand with immigration limits as part of the Government’s immigration strategy.
Until now, UKBA has focused its investigative resources on bogus higher education institutions and certain high risk employers (predominantly the catering industry). Most employers have been left alone to self regulate their Tier 2 migrant job offers. That is going to change. All licensed sponsors should expect a site visit from UKBA – which may be unannounced - over the coming months to ensure compliance with the PBS, regardless of whether the sponsor was visited before the licence was granted. Certain employers are deemed to be ‘higher risk’ – such as those in IT, catering/hospitality or construction, or those that have a ‘B’ rated licence or a high number of visa refusals – but any employer could be selected for a random site audit. To avoid the potential risks, which include downgrading/removal of licence, financial penalties and adverse publicity, we recommend employers:
- conduct regular audits (every 6 or 12 months) of personnel files and PBS processes, to ensure compliance with the detailed record keeping and reporting duties
- keep up to speed with the regular changes to the sponsor and Tier 2 guidance
- don’t assume that the grant of a visa and making right to work checks is the end of your duties! There may be ongoing obligations, especially if the date of hire was post 1 March 2008 or the migrant’s employment terms change while he/she is in the UK
We appreciate that the volume of guidance material can be daunting (alongside all of the other red tape you have to manage), so we would be pleased to discuss compliance issues with you or to undertake an audit at your offices. Please do speak to your usual Taylor Wessing immigration contact about this.
Lawyers Nick Cody, Charlie Pring, Vikki Wiberg
