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IMPACT – HIGH
What is the change? By the end of July, the United Kingdom will phase in all countries to its new Biometric Residence Permits procedures for overseas visa applicants.
What does the change mean? All overseas visa applicants for stays of longer than six months will be required to follow new procedures to obtain a Biometric Residence Permit (BRP). Applicants will receive a 30-day “travel vignette” allowing entry to the U.K and then will have 10 days upon arrival to pick up their BRP. The new process replaces the full visa stamp and allows the U.K. to meet its European Union obligations.
Background: The U.K. announced the new biometric residence card procedures in February. The country-by-country rollout schedule has now been announced and will cover all countries by the end of July.
The schedule for individual countries may be viewed here. Many countries, including India, are already operating under the new system. BAL expects the phase three rollout to cover the U.S., Canada and Australia by May 31, 2015.
The U.K. is introducing credit-card-sized BRPs in place of visa stamps for all entry categories for stays longer than six months. The cards will contain the applicant’s biometric data, including fingerprints and photo, and have been in place in the U.K. for extension and other in-country applications for some time.
Migrants and employers should take note of several procedural changes. At the online visa application stage, migrants must confirm a U.K. address and postal code to determine the nearest post office where they must collect the BRP. (BAL intends to use the employer address given that housing is often not fixed prior to the application stage.) Also at the application stage, migrants must confirm a fixed date of travel. The BRPs will not be issued overseas, and it will no longer be possible to obtain visas covering the whole period of time the migrant will be in the U.K. Applicants will receive a “travel vignette” valid for 30 days beginning from the stated date of travel. The vignette authorizes entry into the U.K and then migrants will have 10 days upon arrival to pick up their BRP. Any change in the pick-up location will cause delay.
BAL Analysis: To avoid business disruption, employers and migrants should work with their BAL attorney to complete the new procedures. Applicants should ensure that the information provided to support the application – including the U.K. address and intended date of travel – is as accurate as possible to minimize the need for additional applications due to expiring travel vignettes. Employers should also be prepared to accept the 30-day travel vignette as a right-to-work document, and consider setting start dates after 10 days of arrival to accommodate an employee’s ability to collect the BRP before starting work.
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.
IMPACT – MEDIUM
What is the change? The election victory by the Conservative Party, led by Prime Minister David Cameron, allows Conservatives wider latitude to pursue stricter migration policies.
What does the change mean? The Conservative immigration platform aims to lower net annual immigration to “tens of thousands” of migrants, set caps on non-EU migrants, impose a four-year waiting period before new migrants can claim housing and other social benefits, and deport EU migrants who do not have a job within six months.
Immigration policy may also be one of the first issues to expose rifts between the U.K. and the European Union. On Wednesday, the European Commission is expected to unveil a migration plan for the Mediterranean refugee crisis that will introduce quotas for member countries to share absorption of refugees and require the U.K. to accept up to 65,000 refugees, more than double its current number – a measure that the new government is certain to fight. Cameron has promised a referendum on Britain’s membership in the EU and, while the U.K.’s exit from the bloc is unlikely, Cameron’s vow to renegotiate the terms of U.K. membership could entail greater U.K. curbs on migrants from the EU.
Business impact: On the business side, the government is likely to continue in the current direction of recent policies that have tightened Tier 2 sponsorship requirements and introduced a host of measures that generally make it more costly and restrictive for companies to recruit and retain foreign workers.
BAL Analysis: Employers and foreign employees should expect at least a continuation of current policies by the new government and perhaps even broader-ranging measures that could further restrict the number of foreign workers or otherwise hamper the ability of companies to hire foreign workers in the U.K.
What is the change? The Brazilian Consulate in London is closed because of damage to the building.
What does the change mean? The closure will suspend regular services, and visa applicants should expect delays.
Background: The Consulate General of Brazil in London closed and suspended regular services April 14, citing structural damage to its building. Emergency cases will be handled by the Brazilian Embassy in London.
BAL Analysis: Applicants whose visas cannot be collected should prepare for immediate delays. If the closure is lengthy, a possible backlog of cases may develop and applicants may have to adjust their travel plans.
What is the change? U.K. authorities are dealing with a biometric data processing backlog. Delays appear to be limited to New York City and Sheffield, England.
What does the change mean? Foreign nationals who recently had biometrics taken for U.K. visas in the locations above may have to wait longer than anticipated for visas.
Background: The backlog resulted from a system outage earlier this week in the U.K. Foreign nationals who had biometric appointments this week in New York or Sheffield should note that processing may take longer than normal.
BAL Analysis: BAL continues to monitor the situation and will provide updates as necessary.
IMPACT – LOW
What is the change? Children under the age of 5 who are applying for U.K. visas in the U.S. are now required to attend a biometric appointment to have their photographs taken. Fingerprints are not required.
What does the change mean? Families traveling to the U.K. with a child under 5 who needs a visa must make an appointment for their child as well as themselves. Previously, children under 5 were exempt from the requirement.
Background: Photographs taken during biometric appointments will be printed on the child’s visa or residence permit (when applicable), but fingerprints are not required. The U.K. government says the change is designed to keep children safe and protect against identity theft.
BAL Analysis: The change will bring U.S.-based application processes for U.K. visas in line with requirements the U.K. has in the rest of the world. Because almost all affected children will be accompanied by at least one adult needing biometrics, the additional requirement is unlikely to add much, if any, time to the visa application process.
What is the change? China has suddenly added a new application requirement for Chinese business visas filed in the U.K.
What does the change mean? All business visa applications must include copies of identification of the host in China who signed the Chinese invitation letter. The type of ID varies depending on the nationality of the host.
Background: The Chinese Visa Application Service Centre in the U.K. imposed the new requirement without notice March 27.
Business travelers were already required to obtain invitation letters from hosts in China. Under the new rules, all business visa applications must now include proof of identity of the host in China who is inviting the business traveler. If the invitation letter was signed by a Chinese national, a copy of his or her ID card must be included in the business visa application. If the host is not a Chinese national, a photocopy of his or her passport photo page and Chinese residency is now required as part of the business visitor’s visa application.
The name and signature on the ID must match those on the letter of invitation.
BAL Analysis: Those planning business travel should plan to request the ID of their host in China to avoid delays in their visa applications.
What is the change? The Home Office will introduce a mandatory health surcharge to most non-EEA work and study visa applicants and their family members entering the U.K. or extending their stay for more than six months.
What does the change mean? An additional government fee of £200 per year for each foreign worker and each family member (and £150 for students) will be added as part of the visa application process. Foreign nationals subject to the fee will be able to access and pay for use of the National Health Service. Certain visa categories and nationalities with reciprocal health care arrangements are exempt, including all Tier 2 (Intra-Company Transferees) and Australian and New Zealand nationals.
Background: The Home Office is introducing the surcharge to make sure that temporary foreign workers are contributing to the National Health Service. The surcharge, which is paid directly to the NHS, gives foreign workers and students in the U.K. the same access to health care as permanent residents. This means they will generally receive free health care, but may be charged for some services, such as dental treatment and prescriptions.
The surcharge is £200 per year for non-EEA workers and £150 per year for non-EEA students. The surcharge for dependent family members matches that of the principal applicant. Several categories of foreign nationals are exempt, including non-EEA Tier 2 intra-company transferees and their family members, as well as visitors or others staying in the U.K. for less than six months. EEA nationals living in the U.K. and citizens of Australia and New Zealand are also exempt from paying the surcharge. Foreigners who are exempt from the levies must still go through the surcharge website to complete their visa applications. Instructions will be available April 6 on the U.K. government’s website.
BAL Analysis: The U.K. expects to collect £1.7 billion over the next decade to offset costs of running the healthcare system. Applicants should plan for the levies and also be sure that the health surcharge is paid at the time of their application. They should also note that the full amount for the entire length of stay is due upfront.
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.
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.