UK Immigration Update

This month the UK Border Agency received recommendations to change aspects of the Tier 1 category for highly skilled migrants, published guidance for sponsors involved in corporate takeovers and mergers, and announced plans to issue identity cards for Tier 2 migrant workers.

Tier 1 Recommendations Would Affect Age, Earnings and Education Requirements

The Government in February requested advice on the desirability of changing Tier 1 immigration criteria in light of the more difficult economic environment. In response, the Migration Advisory Committee on December 4 published its Tier 1 report and recommendations. If accepted, the recommendations will result in the following changes to the Tier 1 (General) category.

• Reversing the policy introduced abruptly in March that requires a Tier 1 candidate to have achieved a minimum education level of a master's degree, MAC recommends that applicants be permitted to earn "qualifications" points with a bachelor's degree.
• Thresholds for "previous earnings" points be substantially increased with, for example, the starting level increasing from £20,000 to £24,000.
• Applicants with "previous earnings" of over £150,000 not be required to score any "qualifications" points.
• Professional qualifications in law and accountancy each be deemed equivalent to a master's degree for purposes of scoring "qualifications" points.
• The maximum age at which an applicant is eligible for "age" points be raised from 28 to 39.

The Government will announce in early 2010 whether it accepts MAC's Tier 1 recommendations.

UKBA Issues Additional Advice on Sponsor Takeovers

When companies or their business units are bought or sold, a great deal of effort is expended to ensure the purchaser will receive what it expects in the purchase and not be saddled with unexpected, unpleasant surprises. For this reason, pre-acquisition enquiries are usually made about the employees in the target business. The commencement of the points-based system just over a year ago introduced a new subject for this type of due diligence when the employee pool includes any sponsored migrant workers.

Aside from ensuring that sponsored migrant workers are, in line with all employees of the target entity, lawfully employed, both the current employer of these workers and the purchaser have obligations to ensure these workers can continue to work for the purchasing company following the acquisition.

On December 15, the UK Border Agency issued supplemental advice on the duties of both companies in this situation. In summary:

• The existing employer must notify UKBA of its ceasing to employ its sponsored migrant workers
• If the purchaser is a sponsor, the new employer must work with UKBA to access the target company's sponsorship records so that the new employer can fulfill its obligations for monitoring and reporting on the activities of its new migrant workers
• If the purchaser is not a sponsor, then the new employer must apply for a sponsorship license so that it can continue to employ any workers who were sponsored by the former employer

The previous employer must notify the UKBA of the cessation of employment and, if required, the new employer must apply for sponsorship within 28 days of the change. If the new employer does not file its application within this period or if its application is unsuccessful, the formerly sponsored workers will have their permission to stay and work in the United Kingdom curtailed.

Unfortunately, the December pronouncement is another example of UKBA's struggling to anticipate the consequences of its rules. Overall, these rules raise more questions than they answer and leave unaddressed significant areas of concern to employers of sponsored migrant workers involved in takeovers, disposals and other corporate re-organisations.

Identity Cards to Be Issued for Tier 2 Applicants and Family Members

With effect from 6 January 2010, all successful Tier 2 applicants will receive a national identity card. Applicants will need to attend a biometric enrolment centre in person so that their biometric information (fingerprints and photograph) can be recorded and encoded in the identity card.