UK Immigration Update

This update covers the more recent developments in the UK Points-Based System. An overview of the system itself appears at the end of this update.

Recent Developments

More changes are coming. One characteristic of the Points-Based System is that it continues to evolve, resulting in seemingly constant rule changes. This time the changes have been flagged well in advance. In September, the Government accepted all 16 of the Migration Advisory Committee's recommendations. The two most important of these were that the Tier 2 (General) and Tier 2 (Intra Company Transfer) categories be retained. The Government has recently announced its timetable for implementation of the other recommendations.

With effect from December 14th, the minimum duration for a job advertisement to satisfy the Resident Labour Market Test for Tier 2 (General) status will increase from 1-2 weeks to 4 weeks. Employers who have started advertising a position before this date will not need to advertise for this longer period.

The following major changes will be implemented in February or April 2010.

• Each of the "proposed earnings" points bands will be raised; for example, qualifications for the minimum 5 points will be raised from £17,000 to £20,000 and for the maximum 20 points from £24,000 to £32,000.

• Employees transferring intra-group to work in the UK will have to have been employed within the group for 12 months, up from the current 6 months, in order to qualify for Tier 2 (ICT) status.

• An exception to this 12 months' prior employment requirement will be for graduates, who will need only 3 months' prior employment to qualify but will be able to work in the UK for a maximum of 12 months.

• The Government may introduce a third-party certification scheme to ensure that "employers of high risk" have fully and fairly completed the Resident Labour Market test before they can issue a Tier 2 (General) Certificate of Sponsorship.

• The Government may commit greater resources to enforcement of the Tier 2 (ICT) rules, i.e., more audits, and that enforcement may be more transparent.

Civil penalty rules bite Government minister responsible. In September, Baroness Scotland was assessed a £5,000 civil penalty for employing an illegal worker as her housekeeper. Baroness Scotland claimed she had performed the required right-to-work document checks before she employed her housekeeper but could no longer find her copy of the documents she had checked. Without that evidence, she was strictly liable for having employed a person who did not have current permission to work in the United Kingdom. UKBA refrained from assessing the maximum £10,000 fine because of mitigating factors. Ironically, Baroness Scotland is the Attorney General and had helped steer through Parliament the law that introduced the system of civil fines for employing illegal workers.

The Points-Based System in Brief

The UK's Points-Based System for the immigration of "migrant workers"—the term given to all workers from outside the European Economic Area and Switzerland—started in 2008.

• The Points-Based System consists of four active categories of migrant workers: Tier 1 (highly skilled migrants), Tier 2 (skilled migrants), Tier 4 (students) and Tier 5 (youth mobility and temporary workers).

• Only UK-based employers licensed as sponsors by the UKBA can bring in, or renew the immigration status of, migrant workers in Tiers 2 or 5.

• A licensed sponsor must be able to demonstrate that it has systems in place to track, monitor and report to the UKBA on its migrant worker population.

• A Tier 1 migrant worker applies for this immigration status in her/his own right—without reference to a sponsor or other employer.

• Generally, all Tier 1, 2 and 5 migrant workers must meet a financial means test ("maintenance"), prove they are sufficiently proficient in English, and otherwise personally qualify for immigration.