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IMPACT – MEDIUM
What is the change? The Home Office has removed discredited language-testing firm Educational Testing Service (ETS) from its list of approved testing centers.
What does the change mean? As of July 1, ETS will no longer be an approved provider. Treatments of various applications with ETS test results are detailed below.
Background: Since February, ETS has been suspended as a language-testing provider following a BBC investigation that uncovered fraud in English tests administered by ETS. The Home Office then put on hold all pending immigration applications relying on ETS test results.
On June 10, the Home Office published a new statement of changes in immigration rules HC 198, officially removing ETS from Appendix O (the list of approved providers) as of July 1. Existing ETS test results, however, will be accepted for the following:
BAL Analysis: Applicants who tested with ETS should determine which immigration rules apply to them according to the transitional provisions published by the Home Office and submit applications as soon as possible before the relevant date – July 1, July 22, or Oct. 1. BAL has never recommended use of ETS where there is an English testing requirement; therefore, we do not perceive a significant risk to our clients. Nevertheless, BAL attorneys are available to answer any questions. .
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 – HIGH
What is the change? Today, the U.K.’s Immigration Bill received Royal Assent – the Immigration Act 2014 is now in force.
What does the change mean? The law will make life more difficult for undocumented migrants in the U.K. by restricting access to housing, banking, healthcare and other services. However, the depth and breadth of the provisions will impact all British citizens and foreign nationals in the U.K. and create significant administrative burdens.
Background: The bill was heavily debated as it moved through Parliament, mostly focusing on legal arguments, such as enforcement, appeals and human rights. However, the Immigration Act’s potential impact on corporate employers and employees (whether British citizens or foreign nationals) is significant.
Some key provisions impacting employers include:
BAL Analysis: While the new law discourages illegal migration, it imposes new costs associated with administering and regulating a “tighter” system. Employers are likely to feel the impact of the Immigration Act in their pockets, due to several additional direct costs and administrative processes.
Notably, the residential tenancy provisions will likely impact any relocation company or HR team that assists with home searches for employees, as the rules apply equally to domestic and international tenants. Given the difficulties companies experience conducting right-to-work checks in the employment arena, BAL anticipates considerable confusion amongst landlords and agents, and ultimately the development of a right-to-work service, whose cost will be borne by the employer or tenant.
IMPACT – LOW
What is the change? The U.K. Home Office has launched a pilot program in which Tier 2 (General) foreign workers will automatically have their passports and/or biometric residence permits (BRPs) returned to them seven to 10 days after applying for permanent residence.
What does the change mean? Tier 2 (General) foreign workers who have five continuous years of residence in the U.K. will be able to use their passports for travel and other purposes while their applications for Indefinite Leave to Remain (permanent residency) are processed.
Background: Currently, those applying for ILR under Tier 2 (General) of the Points-Based System in the U.K. must submit their original passports and biometric residence permits (BRP) to the Home Office. If applying by post, their documents are not returned until the completion of the processes, which can take up to six months. Beginning May 6, 2014, applicants will automatically receive these documents back within seven to 10 days of filing their applications and before a decision has been made on their applications.
The passport-return service launched as a pilot in July of last year for applicants in the Tier 2 Intra Company Transfer (ICT) visa route. Feedback was positive and encouraged the U.K. Home office to expand it to other visa categories. Passports and BRPs will be returned automatically to all postal applicants – it is no longer necessary to specifically request their return.
Crucially, having both passport and BRP will allow applicants to travel while their ILR applications are pending. If the Tier 2 (General) visa has expired, a Tier 2 migrant should be able to rely on the fact that the ILR application is outstanding with the U.K. Home Office when seeking entry to the U.K.
BAL Analysis: The passport-return service is a customer-focused solution intended to minimize the impact of lengthy U.K. Home Office processing times for postal ILR applications. The expansion of the service to include Tier 2 (General) applicants, as well as Tier 2 (ICT) applicants, is a positive development. However, from a practical perspective, BAL continues to recommend that ILR applications be submitted on the priority service to ensure the fastest processing times and minimal disruption to work and ability to travel.
What is the change? The U.K. Home Office has released a “draft code of practice on preventing illegal working” that updates rules regarding civil penalties on employers who employ undocumented workers.
What does the change mean? The draft code contains some sweeping changes to right-to-work checks required by employers and dramatically raises the maximum financial penalties for noncompliance.
Background: The draft code of practice for preventing illegal working details the Home Office’s civil-penalty scheme for employers and updates the code from February 2008. The draft code has been approved by the secretary of state and presented to Parliament.
These are the major changes:
BAL Analysis: The changes in the draft code generally reduce the burden on employers in conducting right-to-work checks. In particular, the elimination of annual follow-up checks of employees on temporary stay visas will reduce administrative headaches for employers. However, the substantial hike in maximum penalties for employing workers illegally makes it critical for employers to correctly perform the checks and get their internal procedures in place.
What is the change? The U.K. Home Office has introduced automatic renewal of Certificate of Sponsorship (CoS) allocations, and eliminated the annual renewal process licensed sponsor employers had to undergo.
What does the change mean? Employers will no longer need to make an annual application to renew their CoS allocation, and unrestricted CoS allocations of Tier 2 employees will no longer be delayed by the renewal process. The number of CoS automatically renewed by the Home Office will be based on usage over the previous allocation year. If an employer needs an unexpected allocation of unrestricted CoS in excess of the amount granted by the Home Office, it can make an ad hoc request via the Sponsorship Management System (SMS) at any time during the year.
Background: The automatic renewal for unrestricted CoS in Tiers 2 and 5 is intended to make the Sponsorship Management System more user-friendly. Beginning in August, sponsor license accounts will be adjusted so that at the end of each allocation year, employers will automatically be granted a new allocation equal to the number of CoS assigned to migrants in that category during the previous allocation year. In the past, employers had to renew their CoS allocations every year and give business reasons for the requested number of CoS. The automatic renewal process will prevent cases where sponsors urgently need to assign CoS, but are unable to do so because their allocation has expired.
Only allocations that are due to expire from Aug. 6, 2014 onwards will be affected by this change. Employers can find their expiry date on the “License Summary” screen in SMS. For employers who have already submitted an allocation renewal application, the automation process will not take effect until next year. Under the automated system, three months before an employer’s allocation expires, the “Request Renewal of Annual Allocations” screen in SMS will display “Automatic Renewal” against the appropriate categories.
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, are available on the GOV.UK website here.
BAL Analysis: Employers should welcome this change as eliminating the administrative burden of annual renewals. However, as the automated process assumes sponsors will require the same number of allocations from year to year, employers should still be prepared to request allocation increases in the event of spikes in the number of migrant employees they require, whether due to expansion, economic growth or project work.
The United Kingdom has now implemented several changes to its immigration rules, including the following:
Tier 1
Tier 2
In addition, the maintenance-fund thresholds for Points-Based System migrants and their dependents will increase for applications submitted July 1 and later.
Visit visas
Starting on May 5, the U.K. will require visit visas for all Venezuelan nationals traveling to the U.K. Existing visa requirements for work, study, and family migration will remain the same.
What is the change? The U.K. government’s announcement of changes to the Points-Based System includes changes to Tier 1, Tier 4 and Tier 5 sponsors.
What does the change mean? The changes include expansion and easing of restrictions under Tier 1, country-specific relaxation of rules under the Tier 4 student category, and a new government-authorized teaching exchange program under the Tier 5 category.
Background: The U.K. government is making a package of changes to Points-Based System work routes to improve flexibility for sponsors and applicants and boost the U.K. economy.
We reported the major changes to Tier 2 sponsorship last week.
Here are the major changes for Tier 1, Tier 4 and Tier 5 sponsors:
BAL Analysis: These changes signal the U.K. government’s efforts to expand certain categories to attract more talent from foreign graduate entrepreneurs, investors and digital technology workers, and to promote greater cultural and language exchange.
What is the change? Worldbridge, the U.K. Home Office’s outsourced commercial partner, will no longer be offering Priority Service for U.K. visa applicants in the U.S.
What does the change mean? Applicants in the U.S. should expect some temporary slowdown in the Priority Service, and potentially increased costs, as the contract for service provision changes hands.
Background: The Priority Service is an add-on service delivered by outsourced commercial partners, at a current additional cost of $150 per application, which can be selected when applying to U.K. Visa and Immigration in New York to guarantee the fastest processing times. Applicants follow the standard visa application procedure, apply and pay online, attend a biometric appointment, and then submit documents to the British Embassy. However, prior to submission, they must have paid the additional fee online to the outsourced provider to secure “priority.” The service is used heavily by the corporate sector. Worldbridge has announced that it will no longer offer the service from Wednesday, March 26, 2014. VFS Global will be the new outsourced provider.
BAL Analysis: Companies moving high numbers of employees from the U.S. to the U.K. and other frequent users of the Priority Service should anticipate higher processing costs – potentially $170 per applicant going forward. In the short term, companies and applicants should be aware of potential service disruptions as the transfer of service takes place. During the transition, it will be essential to verify legal and procedural changes with BAL. Applicants should, as always, plan sufficient lead time to minimize delays.
What is the change? The government has announced a series of amendments to the U.K.’s immigration rules impacting Tier 2 sponsors.
What does the change mean? The package of changes will generally increase flexibility for businesses, but new salary requirements for Tier 2 workers and maintenance increases across all categories will also raise the cost of business.
Background: The U.K. government is creating a package of changes to Points-Based System work routes, to improve flexibility for sponsors and applicants and boost the U.K. economy. In this alert we focus on Tier 2, but further updates will be published relating to Tiers 1, 4 and 5.
The main changes to Tier 2 are that Intra-company transfers and Tier 2 (general) applicants will be granted up to five years leave at a time (rather than the current maximum of three years). Employers will pay a higher government fee for the longer duration, but they will not have to apply for extensions as often.
The government has updated minimum salary thresholds as follows:
BAL Analysis: The Tier 2 changes that corporate clients will be most interested in is the possibility of paying a higher initial fee to secure a one off five-year visa for Tier 2 (general) employees who intend to settle, or for Tier 2 ICTs who intend to stay on assignment for the maximum five-year period before “cooling off” outside the U.K. They should also be aware that salaries they have historically used to support Tier 2 visas may be out of line with new Standard Occupation Classification (SOC) codes and the revised minimum salaries. Employers may need to revise salary packages for future assignees and new hires accordingly.
What is the change? The Home Office will update its salary rates for Tier 2 skilled workers on April 6 – a change that will also impact upcoming application periods and allocation dates for Restricted Certificate of Sponsorship (RCoS) in the next two months.
What does the change mean? After April 5, companies must meet the higher salary rates for RCoS applications. Therefore, the Home Office has changed the RCoS application periods in April and May, and delayed the allocation date in April.
Background: The new salary rates, to be released on April 6, put pressure on companies to assign RCoS before that date. Companies that do not assign by that date will be bound by the higher salaries.
The new salary schedule will also impact upcoming application and allocation dates. The Home Office will only accept applications for April RCoS allocations between April 6 and April 16 (instead of March 6 to April 5). Decisions will be made on those applications on April 18 (one week later than normal). The Home Office will accept applications for May RCoS allocations from April 17 to May 5 (instead of April 6 to May 5), but will decide those applications on May 12 in line with the normal schedule. Please note that the Home Office will still accept urgent requests between March 6 and April 16 via email. A company making an urgent request must submit both the application and its reasons for exceptional consideration on the same day to Tier2Limits@homeoffice.gsi.gov.uk.
On April 6, in addition to salary increases, the Home Office will also replace several current Standard Occupation Classification (SOC) codes with more options that cover different job titles within those occupations. The occupations are: Electrical engineers, medical practitioners, pharmacists, health professionals not elsewhere classified, nurses and social workers. However, RCoS applications made before April 6 based on current SOC codes can be assigned after that date.
BAL Analysis: We strongly advise that any RCoS applications granted on Jan. 11, Feb. 11, or due to be granted on March 11, are assigned immediately, and no later than April 5. After that date, sponsors must make sure salaries meet the new higher salary rates before they will be able to assign them. Businesses and recruiters should be prepared for a delay in securing RCoS to support Tier 2 applications in April, as employers cannot apply until April 6 and will not receive a decision until April 18. Thereafter, the Home Office should return to its normal cycle of RCoS applications by the 5th of every month and approvals by the 11th of every month.