UK Immigration Update

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

Recent Developments

New Guidance for Tiers 2, 4 and 5. The UK Border Agency (UKBA) published new guidance for Tiers 2, 4 and 5 (Guidance) on August 7th and made further amendments on August 21st. The more significant changes to the Tier 2 (skilled worker) rules are described below, and our commentary appears in italics.

• Substantial change of job characteristics requires new Certificate of Sponsorship. The Guidance now points out that an existing migrant worker must be issued with a new certificate of sponsor and obtain new leave to remain if the migrant worker's core duties or responsibilities will change or the worker's position in the hierarchy of the organisation will change, say, due to a promotion. If these steps are not accomplished before the job changes come into effect, the employee is likely to be in breach of her immigration conditions. This situation can, in turn, place the sponsor-employer firmly on the horns of a dilemma because the sponsor-employer must report this breach to UKBA within 10 days or find itself in breach of its duty as a sponsor and risk being liable for employing the worker illegally. Coupled with the new Technical Change of Employment guidance, which was the subject of our UK Immigration Alert for August, this amendment signifies the increased attention UKBA is giving to the responsibilities of sponsors during employment, not just at the beginning and end of employing migrant workers.

• Additional requirement for Tier 2 (Intra Company Transfer) sponsorship. The Guidance adds the requirement that the skilled worker must not be directly replacing a settled worker. Given the pre-existing, and continuing, requirement that the pay for the position must be at or above the minimum identified in the relevant code of practice, this addition seems to be political in nature. Problems are likely to arise for sponsors needing to bring proprietary skills into the UK at short notice to cover for local employees who suddenly become unavailable or leave voluntarily.

• Job advertising to satisfy the Resident Market Labour Test. As of March this year, UKBA made it mandatory that all recruitment searches to satisfy the Resident Labour Market Test for a Tier 2 (General) skilled worker position had to be advertised through JobCentre Plus, the government's agency helping the unemployed back into work. The Guidance now contains an exception relating to executive recruitment for positions of director, chief executive or legal officer where the salary package for the job is at least £130,000 or where there will be associated stock exchange disclosure requirements. This exemption is a welcome recognition of the inappropriateness of the JobCentre Plus advertisement for these types of positions.

• Where a Tier 2 (General) worker can be paid. Previously, a Tier 2 worker, identified and employed on the basis of requirement search, had to be paid in the UK. This requirement has been removed from the Guidance. The end of the former restriction permits employers to pay Tier 2 (General) workers where the employee and employer wish, as is already the case for Tier 2 (Intra Company Transfer) workers.

The MAC Report. On August 19th the Migration Advisory Committee (MAC) published its report in response to the government's request that it consider whether to reduce or change the Tier 2 routes. In the course of almost 200 pages of closely reasoned discussion, MAC recommended that the two most popular business immigration avenues— Tier 2 (Intra Company Transfer) and Tier 2 (General)—be retained. But many of MAC's other recommendations will raise barriers to using these categories and will result in an increased focus on enforcement by UKBA. We will report on the recommendations accepted by the government when it publishes its response to the MAC report in September. If accepted by the government, no recommendation is expected to be implemented until the end of October, at the earliest.

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).

• Employers need to be licensed as sponsors by the UKBA to bring in, or to renew the immigration status of, migrant workers in Tiers 2 or 5.

• To be licensed the UK-based employer 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 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"), to prove they are sufficiently proficient in English, and otherwise personally qualify for immigration.