IMPACT – MEDIUM

What is the change? Under recently implemented immigration rules, U.K. visa officers charged with approving visa applications both inside and outside the U.K. have been granted new powers to seek proof from employers that they have complied with visa and sponsorship criteria.

What does the change mean? Employers may be asked to show proof of their compliance with Tier 2 (ICT) and Tier 2 (General) qualifying rules when they submit a visa application or at renewal time. Previously, this qualification was not tested as part of the U.K.’s self-certification system. Now, for example, entry clearance officers may seek proof of resident labor market testing in the Tier 2 (General) stream, proof of compliance with standard job titles, job descriptions and salary levels of foreign workers in any Tier 2 stream, and proof of a work contract where a foreign employee is placed at a third-party client site but controlled by the sponsor.

  • Implementation timeframe: Immediate and ongoing.
  • Visas/permits affected: All Points-Based System categories, particularly Tier 2 General and ICTs.
  • Who is affected: Employerssponsoring foreign workers in the above categories.
  • Impact on processing times: The change does not directly impact processing times, but greater scrutiny and requests for proof may delay some cases.
  • Business impact: The increased authority of visa officers adds another layer of compliance oversight to the visa process and greater uncertainty.
  • Next steps: Employers are encouraged to work with their BAL attorney to have relevant documentation on hand to meet any additional requests for proof of compliance.

Background: While the key policy provisions of Tier 2 (ICT) and Tier 2 (General) have not changed, visa officers now may award no points for a Certificate of Sponsorship when they determine that there is not a “genuine vacancy,” affording them the power to refuse an application. Prior to this change, the U.K. had an entirely self-certifying system, where the employer was responsible for ensuring that it met the relevant policy provisions of the Tier 2 category prior to issuing a Certificate of Sponsorship, and was required only to prove qualification via a record check during an audit by the Home Office. The purpose of the visa application was to check security risks posed by the employee, rather than to assess qualification. Under the new rules, visa officers will not necessarily take the Certificate of Sponsorship at face value and may request additional evidence from employers demonstrating that they meet the Tier 2 criteria. This is one of a number of factors currently changing the objective Points Based System into a more subjective system with greater uncertainty about documentary requirements.

BAL Analysis: Employers are advised to take a more proactive role in making sure that they are compliant with sponsorship and visa criteria, rather than assuming that compliance has been checked and authorized at the visa application stage or passively awaiting an audit. They should anticipate that visa officers may request evidence in addition to the Certificate of Sponsorship, particularly if there are any doubts about qualification for positions and the skill levels that are required, the validity of the Resident Labour Market Test, or the nature of the relationship with a client.

BAL’s U.K. office held a webinar for employers in London on Dec. 4 on the impact of the genuine vacancy requirements and would be pleased to forward materials to those who were unable to attend.

This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.

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