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IMPACT – HIGH
What is the change? Under new rules going into force in April, the Home Office will consolidate the visitor visa category into four routes – visit (standard), marriage/civil partnership visit, permitted paid engagements visit, and transit visit – in a bid to make the rules more readily understood. Business visitors may enter as “standard visitors” – they will be allowed to undertake a limited and express number of “permitted activities”– but may not take employment, work or provide services in the U.K. Entry as a visitor will still only be for a maximum period of six months in any 12-month period. All visitors to the U.K., including visa-waived business travelers (such as U.S. citizens) will be assessed on whether their intent to visit is “genuine” and not merely a means to work in the U.K. on a short-term basis (which requires work authorization).
What does the change mean? The “genuine intent” test provides fresh grounds for either a U.K. visa officer, whether at the consulate deciding a visa application or at the airport, to deny entry to a foreign national whom they believe intends to violate terms of the visitor status by performing work activities in the U.K.
Background: The statement of changes reduces the number of visitor categories and clarifies the permitted activities for each category. Under a new prerequisite, visitors must satisfy the decision-maker that they have a “genuine intention to visit,” which includes a determination that they are entering for one of the listed purposes and will not undertake prohibited work activities. Visitors are prohibited from taking employment or conducting work that amounts to filling a role or providing short-term cover within a U.K.-based organization. They must remain paid and employed outside the U.K., except under very specific circumstances.
A business visitor may:
A business visitor who is an employee of an overseas company may conduct the following intra-corporate activities on a specific internal project with U.K. employees of the same corporate group, provided no work is carried out directly with clients:
A business visitor who is an internal auditor may carry out regulatory or financial audits at a U.K. branch of the same group of companies as the visitor’s overseas employer.
An employee of a foreign manufacturer or supplier may install, dismantle, repair, service or advise on equipment, computer software or hardware.
In a separate category, clients of U.K. export companies may be seconded to the U.K. company to oversee the requirements for goods and services that are being provided under contract by the U.K. company or its subsidiary company, provided the two companies are not part of the same group. In exceptional cases, employees may make multiple visits to cover the duration of the contract.
Several other business categories have been delineated, listing their permitted activities. These categories include: Study, Work-related Training, Science/Research/Academic, Legal, Religious, Artistic, Sport, Entrepreneur and Medical-treatment visitors.
BAL Analysis: The rules place greater scrutiny on the requirement to seek work authorization, typically under Tier 2, either in the context of a full-time assignment or on a multiple-entry basis. Business travelers, especially visa-waived nationals who are accustomed to entering the U.K. without a visa without incident, should beware that an enhanced focus on this area is the clear intention of U.K. policymakers. The risk in entering the U.K. improperly as a visitor and without work authorization ranges from delay and inconvenience at the airport to a possible 10-year travel ban where entry is deemed to have been sought by deception. The risk to a company in allowing employees to enter incorrectly as visitors are fees of up to £20,000 per undocumented migrant, plus loss of access to sponsor management systems to support other Tier 2 employees.
Business travelers should make sure their activities do not encompass prohibited work activities. The “genuine intent” test provides additional grounds for a border official to turn away visa-waived nationals at the border. Companies may wish to contact their BAL representative for a complete list of enumerated business activities for each category of business travel.
More positively, we welcome the fact that standard visitors may now enter to conduct leisure or personal activities along with business activities on the same trip, giving a legal basis for what has long been assumed to be the position.
BAL’s U.K. office will hold a webinar on the visitor topic, as well as other reforms to the U.K. immigration system announced in the recent Statement of Changes, and will circulate invitations and an “executive summary” to clients shortly. Please contact your BAL representative for more information.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2016 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.
What is the change? As of April 6, the Home Office will increase base minimum salary thresholds across all Tier 2 categories, as well as the minimum salary for each individual Standard Occupation Classification (SOC) code against which Tier 2 roles must be plotted.
What does the change mean? Costs will increase for U.K. employers sponsoring migrants on Tier 2.
Background: Minimum salaries for the Tier 2 (General) and Tier 2 (Intra-Company Transfer – Short-Term) categories will increase by £300, while Tier 2 (General) jobs that are exempt from certain advertising or other rules will increase by £900 and £1800.
The old and new Tier 2 salary thresholds are displayed here:
SOC codes, which set out minimum wages for each role in the U.K., are based on data from the National Office of Statistics, and are used to ensure that migrants are paid in line with resident workers for equivalent roles. There have been changes for all sectors. Some have been increased – for example, a software developer will now need to be paid an additional £1,500, taking the minimum annual salary from £29,600 to £31,100. Marketing and sales directors must be paid an additional £7,200, from £40,700 to £47,900. In other categories where there is a perceived shortage, the minimum wages have gone down.
Overall costs for Tier 2 migrants are also poised to be raised as a result of the introduction of an annual health surcharge to mitigate the cost impact of migrants on the National Health Service – this has not yet been published formally, however. On a more positive note, the 12-month “cooling-off period” will no longer apply to previous grants of Tier 2 stays of three months or less. This change is intended to give businesses flexibility to transfer key staff for very short periods, and should be read in line with the new visitor rules that make clear that this is not a means to work in the U.K. even for a very short period.
BAL Analysis: The Home Office reconsiders salary thresholds annually and these latest salary increases correspond to a 1.2 percent increase in average weekly earnings for resident workers in the previous year and are not of immediate concern. However, the revision to salary thresholds set within each SOC code may have a more significant impact on what employers need to pay migrant workers to come to the U.K. or to support them in making settlement applications there. U.K. companies are reminded to adjust their minimum salaries and may wish to contact their BAL representative for the full list of new salary levels.
Further analysis will be available at our client webinar to which you will be invited shortly.
What is the change? The United Kingdom will launch its 24-hour “Super Priority” visa service for U.S. applicants March 9.
What does the change mean? Eligible applicants may apply for certain visas at the British Consulate in New York and obtain a decision within 24 hours.
Background: The Super Priority visa service is already available to applicants in China and India, and the U.K. plans to extend it to other countries in the coming months.
BAL Analysis: Visa applicants interested in the Super Priority service should contact their BAL representative to confirm eligibility. Please note that paying for this service does not guarantee that any visa application will be approved. This expedited service also allows applicants to designate a representative to collect their passport, but the applicant must make the designation in writing at the time of application submission.
IMPACT – MEDIUM
What is the change? The High Commission of India in London has announced that it will require biometric data capture for visas and other consular services beginning in March.
What does the change mean? Anyone applying for Indian visas or other consular services in the U.K. will be required to book appointments online before submitting applications and appearing in person to have biometrics taken. Once the change is implemented, applicants showing up at visa centers without an appointment may be turned away.
Background: The changes are part of India’s Immigration, Visa and Foreigners’ Registration and Tracking (IVFRT) program. As part of the program, India will make biometric data collection (fingerprint data and facial imagery) mandatory for all visa applicants. Mandatory biometrics have already been implemented in Australia, Malaysia and the Netherlands, among other countries.
In the U.K., the program will be launched at 14 visa centers, including three in London, in March. Once the program is operating, walk-in appointments will not be accepted. Exceptions will be made for medical emergencies, however. Diplomatic and official passport holders traveling on official business are also exempt and should submit their applications directly at the High Commission of India in London or the Consulates General of India in Birmingham and Edinburgh.
BAL Analysis: Once the mandatory biometrics program is implemented, applicants will be required first to apply online and then appear in person, by appointment, at a visa center. Walk-ins may be turned away. BAL will provide more information about the rollout when dates can be confirmed. Contact your BAL representative if you have questions about the program.
What is the change? The United Kingdom will soon introduce biometric residence permits (a credit-card sized document) for overseas applicants applying for stays longer than six months, replacing full-validity visa stamps in passports.
What does the change mean? Overseas applicants will have to comply with new procedures: the regular visa stamp will be replaced by a 30-day travel vignette permitting travel to the U.K. to collect the biometric residence permit within 10 days of arrival.
Background: The new procedures comply with an EU regulation requiring member states to issue biometric residence permits. Under the new procedures, a foreign employee applying from abroad will indicate date of travel and a U.K. address with postal code. Instead of a visa stamp denoting the full period of stay, the foreign employee’s passport will be stamped with a 30-day, short-validity vignette. The vignette allows the employee to enter the U.K. and pick up the biometric residence permit within 10 days of arrival at a designated post office. The pick-up location is based on the postal code entered on the visa application form. Applicants may request a change in pick-up location, but it will cause delay and incur a charge. If the applicant must leave the U.K. before collecting the permit, he or she may make multiple entries on the vignette within the 30-day validity period, but once the vignette expires, he or she must apply for a new one.
In 2012, the U.K. completed implementation for in-country applicants. To date, the Home Office has issued approximately 1.8 million biometric permits, including to people extending their visas or settling or transferring their conditions in the U.K. In conjunction with the U.K. Post Office and secure document production units, the Home Office will bring overseas applicants in line with this system, albeit without moving production and issuance of the biometric permits overseas (which would create a number of technical and logistical problems).
BAL Analysis: To avoid delays, employers sponsoring non-EEA employees for longer than six months should work with their BAL attorney to prepare for the new biometric residence permit procedures, paying special attention to the short-validity travel vignette enabling a foreign applicant to enter the U.K. for purposes of obtaining their permit. Any errors on the vignette must be corrected before travel, and any change to the pick-up location will cause delays and added cost.
In terms of compliance, employers should ideally require employees to collect their permit before starting work, as this will allow them to meet the right-to-work requirements in a single step. If the employee must start work before collecting their permit, such as in an urgent relocation, an employer will be able to conduct a right-to-work check of the 30-day vignette in the employee’s passport and then a second check of the permit when the vignette expires. The new procedure may therefore require a cultural shift – while migrants can still fly into the U.K. and start work the same day in an emergency, it will be better to arrange a timeline where the employee can collect the permit comfortably before starting work.
What is the change? In August, the U.K. Home Office introduced automatic renewal of Certificate of Sponsorship (CoS) allocations for the top 200 largest employers. However, smaller employers must continue to apply annually for a renewal of their CoS allocation and should watch for Home Office reminders.
What does the change mean? Large employers do not need to make an annual application to renew their CoS allocation, while others must continue to make an annual application to request that Tier 2 CoS be allocated to the Sponsor Management System account.
Background: We reported the introduction of automatic Certificate of Sponsorship allocation renewal in March 2014, and it took effect for the 200 or so largest employers in August. Those companies should now be automatically granted a new allocation equal to the number of CoS that have been assigned to migrants in that category during the previous allocation year. This process has been introduced to prevent instances where sponsors urgently need to assign a CoS but are unable to do so because their allocation has expired.
For the largest employers, ‘Automatic renewal’ will be displayed next to the categories in question on the ‘Request renewal of annual allocations’ screen in the Sponsor Management System three months before an allocation is due to expire. Those identified as the largest employers may have already been allocated their CoS automatically for this year.
However, the majority of employers are not considered in the largest 200, and must continue to apply for their CoS allocation to be renewed annually and provide business reasons for the number of CoS requested. These employers should refer to the ‘Licence summary’ screen in the Sponsor Management System to determine the expiry date of their CoS allocations or work with BAL to establish this information.
Please note that the renewal of allocations of CoS, which occurs annually, is not connected to the renewal of sponsor licenses, which occurs every four years.
Updated versions of the SMS user guides, including details of the automation rules and processes, have been published here.
Guidance for sponsors on CoS is contained in Section 4 of the most recent Sponsor Guidance.
BAL Analysis: For the largest companies who have been offered automatic renewals, this is a positive change that removes an administrative burden. However, large employers subject to automatic CoS renewal should beware of the assumption that they will only require the same number of CoS as in the previous year – automatic renewal does not account for spikes in the number of CoS an employer may need based on legitimate business reasons such as expansion, economic growth or project work. In addition, employers who are not included in the automatic renewal should notify BAL for further support when they are contacted by the Home Office three months before the allocation renewal deadline.
What is the change? The U.K. has implemented Registered Traveller Service for nationals of Australia, Canada, Japan, New Zealand and the United States who frequently fly to Heathrow or Gatwick airports.
What does the change mean? Nationals of the countries listed above who are approved for the service can avoid queues at the airport and will not have to fill out a landing card upon arriving in the U.K.
Background: Registered Traveller Service allows nationals of the countries listed above to use ePassport gates at Heathrow and Gatwick airports (provided they have biometric passports). At Heathrow, the service allows travelers to use the U.K./EU channel; at Gatwick, it allows travelers to use the Registered Traveller lane.
Once applicants have obtained an invitation code, they can apply online on the U.K.’s Registered Traveller Service website. The application costs £50, even if it is not successful. Applicants need a passport and debit or credit card to complete the application. Decisions are made within 10 working days. The service is initially valid for a year and is renewable.
BAL Analysis: Registered Traveller Service is a good option for frequent business travelers, as it allows them to save time traveling to the U.K. for the relatively inexpensive cost of £50 per year.
What is the change? The British Embassy in Egypt has reopened after closing last week due to unspecified security concerns.
What does the change mean? Immigration, travel and other consular services have resumed.
Background: The British Embassy in Cairo closed and temporarily suspended services Dec. 7, citing security concerns. The Canadian Embassy closed the next day, also citing security concerns. While the British Embassy reopened, the Canadian Embassy remained closed as of Dec. 17.
BAL Analysis: The fact that the closure was relatively short is good news for visa applicants, who faced the possibility of long delays or having to apply outside Egypt when the embassy closed its doors last week. BAL will continue to monitor the status of the Canadian Embassy and will keep clients updated on its status.
What is the change? The Canadian and British embassies in Egypt have halted public services due to unspecified security concerns.
What does the change mean? Until further notice, both Canada and the United Kingdom have suspended all activities, including visa applications and document services.
Background: On Dec. 7, the British Embassy in Cairo announced that it would temporarily close and suspend services. The next day, the Canadian Embassy followed, citing security concerns. The British Embassy said it is taking steps to improve the physical security of the building before it reopens and has asked the public not to visit the building until further notice. Officials said that new visa applications are not being accepted and that individuals with pending applications should expect delays in getting their passports back. Applicants who have already been notified that their passports are ready to be picked up can do so at the Visa Application Center, but it is only open for accepting inquiries and returning passports.
The closure of these two embassies could prompt other Western countries to close their embassies. The U.S. Embassy remains open, but it posted a security message to U.S. citizens Dec. 4, reminding them to be alert to their surroundings and recommending that embassy staff “carefully scrutinize their personal movements and consider staying close to their residences and neighborhoods over the coming period.”
BAL Analysis: If the closures are prolonged, visa applicants will face long delays or have to apply outside Egypt. The British Embassy is advising those applying for Visit Visas that they may apply at any other country that has a Visa Application Center and is recommending that those applying for other visa types apply in Jordan or the United Arab Emirates.
What is the change? The U.K. has changed the rules for nationals requiring airside and landside transit visas.
What does the change mean? Nationals requiring a Direct Airside Transit Visa to pass through the U.K. in transit, both airside and landside, can either apply for a transit visa or use a document on the list of exempt documents. Nationals who only need a transit visa to transit landside will no longer be able to transit by showing just an onward ticket; they must apply for a transit visa or have one of the exempt documents.
Background: Transit visas are required of certain nationals stopping in the U.K. en route to other destinations within 24 or 48 hours.
Airside transit refers to an onward flight on the same day and departing from the same U.K. airport as arrival. Airside transit passengers do not pass through the U.K. border controls. Landside transit refers to an onward flight from a different U.K. airport or transit involving re-checking baggage and therefore passing through border controls to enter the U.K.
As of Dec. 1, nationals who require a visa to transit through the U.K. both airside and landside (“DATV nationals”) will have the option to apply for a transit visa or use an extended list of exemption documents, such as an EEA or Swiss residence permit, and pay a reduced cost of £30 for the DATV valid for two years. Chinese and Indian travelers may use the recently launched British and Irish Visa Scheme biometric visa as an exemption document for transit.
Under the new rules, nationals who require a transit visa for landside travel only (“non-DATV nationals”) can no longer transit landside with only a confirmed onward ticket; they must either apply for a transit visa or use one of the exemption documents and they must arrive and depart by air and have a confirmed onward flight leaving by 11:59 p.m. the following day. Nationals of Bolivia, Ecuador and Montenegro will no longer be required to hold a DATV or exemption document for airside travel.
BAL Analysis: Business travelers and foreign employees and assignees planning to transit through the U.K. should plan for the new rules, and non-DATV nationals should anticipate extra procedures as they can no longer just show proof of onward travel.