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IMPACT – HIGH
What is the change? The allocated quota for Tier 2 Restricted Certificates of Sponsorship (RCoS) has been exhausted for the month of March, the fourth consecutive month the quotas have been exhausted.
What does the change mean? Employers should anticipate that requests for Tier 2 (General) Certificates of Sponsorship with points below the minimum 50 and a salary of less than £55,000 per year have been refused and will need to be resubmitted in April.
Background: The annual quota for Tier 2 (General) visas is 20,700, allocated into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during the high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: BAL anticipates pressure on quotas through May or June and recommends that employers plan accordingly. While the government considers whether to make changes to its shortage occupation list to alleviate pressure on the quotas, employers should consider salary as the deciding factor in the approval of an RCoS request. Companies that recruit higher earners will continue to be more likely to have their applications approved.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
IMPACT – MEDIUM
The EU and U.K. have reached a provisional deal on the transition period that will follow March 29, 2019 when the U.K. formally withdraws from the EU. The transition period is meant to give businesses time to plan before new immigration and trade rules take effect.
Key provisions:
Background: Negotiators have been wrangling over the terms of the transition for the past month, and the deal reached reflects that the EU won concessions from the U.K. on nearly all of the terms it sought.
EU negotiator Michel Barnier said the deal marked “a decisive step,” while U.K. negotiator David Davis said it would allow businesses the ability to “plan for the future with confidence.”
BAL Analysis: While the terms of the transition deal are clearer, particularly regarding citizens’ rights and the length of the transition period, the overall withdrawal deal is still uncertain until it is ratified, which is likely to be in 2019. Companies should plan for EU employees in the U.K. (and U.K. employees in the EU) to retain their free movement rights through 2020, but are encouraged to pursue residency documents when eligible. Further changes are likely to occur as both the U.K. and the EU negotiate the terms of Brexit.
What is the change? In line with its annual review of U.K. visa fees, the Home Office will increase most immigration-related government fees effective April 6, 2018.
What does the change mean? Work, study, visit, and family visas, as well as naturalization and settlement application fees will increase by 4 percent. Priority service fees will increase by 15 percent. The Home Office will not be increasing fees in relation to sponsorship in the U.K.
Key government fee changes as of April 6:
BAL Analysis: Companies and individuals should budget for the increases being implemented next month.
What is the change? The U.K. will not extend work permission requirements for Croatian nationals when the restrictions expire on June 30.
What does the change mean? On July 1, Croatian nationals will enjoy full access to the U.K. labor market in the manner of other EU nationals.
Background: Croatia joined the EU in 2013. Under transitional provisions, the U.K. opted to restrict labor access since that time. Legally, the U.K. could continue to impose restrictions for another two years. According to a statement the U.K. Immigration Minister, Caroline Noakes made to the European Commission on Monday, low unemployment rates and the strong forecasted growth of the Eurozone and Croatia do not justify extending the restrictions. Under EU rules, a country must show that “serious labor market disturbance” would occur if restrictions are removed.
Under current restrictions, Croatian nationals are required to obtain work authorization from the Home Office before taking up work in the U.K. After one year of employment, they are free to work without restrictions. Croatian partners and spouses of British nationals and other settled nationals in the U.K. are exempt from such work permission.
BAL Analysis: The removal of restrictions will benefit Croatian nationals and the companies that employ them in the U.K. with respect to the time it has taken to sponsor these individuals in the U.K. as well as the cost involved.
What is the change? The Home Office has published a statement of immigration rule changes that take effect April 6.
What does the change mean? The changes clarify that family members of U.K. citizens or residents who apply for permanent residence based on five years of residency in the U.K. must meet all eligibility criteria, including those dealing with immigration status and financial and English language requirements, at all stages of the application in order to be granted indefinite leave to remain. Other changes clarify when asylum applications can be rejected and when cultural festival performers may be paid on a visitor visa.
Background: The rules clarify the eligibility criteria for partners or parents of U.K. citizens and residents for purposes of attaining indefinite leave to remain based on five years of residency. The changes seek to confirm that all eligibility requirements must be met in order to qualify to apply for indefinite leave to remain in the U.K. through this route. The list of free cultural festivals for which foreign performers may be paid on a visitor visa has been updated for 2018 and 2019. (Normally, visitors are prohibited from conducting paid activities.) The full list is available at Appendix V of the Statement of Immigration Changes.
The rule changes also clarify that an asylum application will be inadmissible and will not be considered if an EU country has granted the individual refugee status or international protection status.
BAL Analysis: U.K. citizens and foreign residents who are applying for a partner or parent should be prepared to document that they have met all eligibility criteria for the entire five-year period. Visitors intending to perform at any of the listed free festivals may apply for a visitor visa even if they are paid for their performance.
What is the change? Employers with annual allocations of Tier 2 certificates of sponsorship are reminded that the certificates will reset on April 6 and unless their renewals are automatic (for the same number as used in the previous year), they should be manually renewed.
What does the change mean? U.K. companies anticipating the need to sponsor migrants in an unrestricted Tier 2 category in the coming year should submit their requests now. Ad hoc requests during the year are accepted, but take eight weeks or can be expedited for a fee.
Background: The Home Office will review requests in accordance with the sponsor’s usage during the current allocation period, upcoming extensions and allowances for potential business growth where the company has provided strong justification. The request may be granted in full, in part or rejected. Employers whose requests are rejected will need to make ad hoc requests during the year when they have an immediate need to sponsor an individual. Ad hoc requests take eight weeks to process, or can be expedited to five to seven business days for a government fee of £200.
BAL Analysis: U.K. sponsors should assess their staffing needs for the coming year and submit any manual requests for additional Tier 2 certificates of sponsorship before April 6.
What is the change? The allocated quota for Tier 2 restricted certificates of sponsorship (RCoS) has been exhausted for the month of February, the third consecutive month the quotas have been exhausted..
What does the change mean? Employers should anticipate that requests for Tier 2 General Certificates of Sponsorship with a salary of less than £50,000 per year have been refused and will need to be resubmitted in March.
BAL Analysis: BAL anticipate pressure on quotas through March and recommends that employers plan accordingly. The government is under pressure to reconsider roles on the shortage occupation list which are frequently sponsored, such as occupations with the National Health Service; however, in the meantime employers should consider salary as the deciding factor in the approval of an RCoS request. Companies that recruit higher earners will continue to be more likely to have their applications approved.
What is the change? A court in Belfast has ruled that an Irish woman born in Northern Ireland is an Irish citizen and has only ever been such. Under the 1998 Good Friday Agreement, people born in Northern Ireland can choose to be British citizens, Irish citizens or have dual citizenship. In this case the Home Office initially rejected a residency application for the woman’s American husband on the grounds that his wife was British, even though she never carried a British passport. The ruling enables the husband to acquire residency in the U.K. as the spouse of an EU national exercising free movement rights.
What does the change mean? The case may benefit other Irish passport holders in their ability to avoid stringent U.K. immigration rules and have their non-EU spouse join them.
Background: The Home Office rejected a residency application by Emma de Souza for her husband, a U.S. citizen. De Souza was born in Northern Ireland and never held a British passport. The Home Office alleged that under the British Citizenship Act 1981, she was automatically considered a British citizen and would have to apply for her husband as a third-country national. The Home Office said de Souza could renounce her British citizenship and then make the application, but she refused and sued.
A tribunal in Belfast ruled in her favor, citing her rights under the 1998 Belfast (Good Friday) Agreement. “Under the terms of the Good Friday Agreement, people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people of Northern Ireland to identify themselves as Irish or British, or both,” Judge Gillespie said.
The Home Office may not appeal to the tribunal, but it is weighing whether to directly appeal to a higher court.
BAL Analysis: The case has implications for others holding an Irish passport resident in the U.K. and married to a non-EU citizen who now may file a residency application pursuant to EU free movement rather than under the stricter U.K. spousal residency criteria.
What is the change? The U.K. government plans to double the immigration healthcare surcharge for visa applicants from £200 to £400 per person, per year (and from £150 to £300 per person, per year for students and Youth Mobility Scheme applicants).
What does the change mean? The change will affect new applicants after the implementation date, which has not been announced.
Background: The decision comes as the U.K. government faces mounting public protests demanding greater government funding to save the National Health Service. The healthcare surcharge was introduced in 2015 for all non-EEA nationals coming to the U.K. to work, study or join family for a duration longer than six months. The government has determined that the increase is needed to cover the actual costs of treating the non-EEA population.
BAL Analysis: The doubling of the healthcare surcharge represents a significant increase that employers and individuals should budget for starting this year. BAL will report when the implementation date is announced.
What is the change? U.K. Visa and Immigration has begun to impose stricter counting rules when considering permanent residency applicants who have been away from the U.K. during the requisite five-year period of continuous lawful presence.
What does the change mean? Under the new rules, applicants who are absent for more than 180 days within any rolling 12-month period during the five years may be disqualified for permanent residency. Previously, adjudicators only refused applicants who were absent for more than 180 days within any of the five separate consecutive 12-month periods preceding the application date.
Background: The change to the calculation method was published in the latest Statement of Changes to the Immigration Rules that took effect Jan. 11.
BAL Analysis: Employees and assignees planning to apply for permanent residency should be aware of the stricter criteria and be sure that their absences do not violate the new calculation rules by cumulatively exceeding 180 days in any 12-month period during the qualifying five-year residency period. If absences exceed those permitted, then employees should work with BAL to put forward a compelling case for the absences to be disregarded.