Tier 2 – Recent changes and what to expect in the New Year?

Tier 2 – Recent changes and what to expect in the New Year?

Tier 2 visa category has been in the spotlight throughout this year. The current government has pledged to reduce the net migration and Tier 2 has been one of the most affected visa categories. Edmans & Co team have therefore decided to cover the recent changes that have been introduced and the possible changes to come in the New Year.

What has changed?

Most importantly, Tier 2 migrants wishing to apply for Indefinite Leave to Remain (ILR) in the UK on or after 6 April 2016 will have to have an annual salary of at least £35,000.00 (or the minimum as indicated in the Code of Practice (COP), whichever is higher). Subject to some exceptions, such as for example some of the PhD-Level occupations on the Shortage Occupation List, this requirement applies to all applicants who entered the Tier 2 category under the rules in force from 6 April 2011.

• A new Tier 2 (General) monthly quota system became effective from October 2015. Both the number of points assigned to type of positions as well as number of salary brackets have changed. As a result, we see more and more applications under the lower salary brackets being refused by the Home Office.
• Additional restrictions have also been introduced in cases where an applicant is attempting to switch from Tier 4 to Tier 2 visa. This includes, for example, a requirement that the institution where they studied their degree must be a publicly funded institution.
• In addition, the Government has recently tightened up on the Tier 2 “genuine vacancy” test. As a result, we started seeing more and more Tier 2 visa applications being refused, because Home Office believes the vacancy is not genuine or that the vacancy has been “manufactured” to suit a certain individual’s skills. If this happens, the Home Office may also suspend the employer’s Sponsor Licence, whilst the investigation is ongoing.

Tier 2 sponsors have also been affected by most notably the following changes in the rules:

• The Home Office has removed the 20-day grace period within which Sponsors need to review their Sponsor Licences. The Sponsor Licences now have to be renewed before the expiry date to avoid revocation and curtailment of Tier 2 sponsored visas.
• Sponsors must now inform the Home Office if they assign a Certificate of Sponsorship (COS) to a family member of an employee of the Sponsor where it is a Small or Medium sized business. In case of a large business, such requirement only exist where the Sponsor is aware of the relationship.
• A new Sponsor Licence now needs to be obtained every time there is a change in the direct ownership of the company holding the licence. Interestingly, this requirement does not affect the Tier 2 sponsored employees, who are not required to make a change of employment application. Where indirect owner of the company has changed, a notification via the Sponsor Management System (SMS) still needs to be made.
• Sponsors now have to retain the details of the job description and the evidence that the skills, qualifications and relevant experience of the Tier 2 Migrant fit that job description when the job application was being considered. This could include for example copies of the relevant degree certificates, references from previous employers and other evidence of experience. This requirement applies to all Tier 2 applicants regardless of whether a Resident Labour Market Test (RLMT) was submitted.
• Sponsors are now also recommended to have a system in place to allow the Authorising Officers (AOs) to check assigned Certificates of Sponsorship (COSs) on, at least, monthly basis.

What to expect in the New Year?

Lawyers at Edmans & Co are constantly reviewing new and proposed immigration legislation changes with the aim of remaining at the forefront of the immigration law industry.

• The draft Immigration Bill 2015 is expected to be implemented in the New Year. It is likely to affect both sponsors and sponsored applicants under the Tier 2 visa category. For example, if enacted in its current form, a new criminal offence of “illegal working” will be introduced. This means that a criminal offence will be committed if a sponsor knows or has a reasonable cause to believe (as opposed to actual knowledge) that a person is working without qualifying leave. The maximum penalty is a custodial sentence of up to 5 years (as opposed to current 2 years) for the Employer. Employees on the other hand will also commit a criminal office of “illegal working” punishable by a custodial sentence up to 51 weeks and/or fine or both with any salary they have accumulated during their employment becoming proceeds of crime.

• The Government is still attempting to keep by its promise of reducing the net migration. This has been the subject of wide criticism from the legal academics and professionals across the field. We have covered this topic in one of our articles back in October 2015 and not surprisingly a number of very respected media sources have reported in the end of December that upon review they came to a conclusion that the Governtmen’s policy is “not fit for purpose”. One of the main reasons being that it is impossible to control the migration from and to the EU. However, the government is not giving up on its policy and the infamous Migration Advisory Committee (MAC) has been asked to review the Tier 2 visa category once again with a view of achieving the government’s goal of reducing the net migration. The report is due to come out in early 2016. A number of recommendations are widely anticipated, such as:

• Increase the salary thresholds for all Tier 2 subcategories;
• Introduction of the widely anticipated skills charge or skills levy increasing the costs of employing migrant workers;
• Introduction of a cap on the number of ICT Migrants available to Tier 2 sponsors;
• Extension of the liability for the Immigration Health Surcharge (HIS) to ICT Migrants;
• Remove Resident Labour Market Test (RLMT) exemption for Tier 2 applicants moving from Tier 4 to be removed;
• Restrictions on Tier 2 dependants family members’ right to work in the UK

• Finally, as with the Tier 1 applications, it is widely anticipated that criminal record checks will be introduced to cover Tier 2 applicatnts.

Edmans & Co will continue monitoring the situation concerning key legislative changes, which may affect your business, and aim to keep you updated during the next year.

This article is by way of a general overview of the subject and is not intended cover the topic comprehensively. Nothing above should constitute legal advice. Please feel free to contact us if you require any advice or assistance in relation to your particular circumstances.

Emil Manasyan (Associate @ Edmans & Co)

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