Tier 2 General Visas

13
Mar

Small change in UK Visas and Immigration – Points-based system: sponsor compliance visits (19 February 2018)

The Home Office have released an updated guidance for compliance officers regarding pre and post licence sponsor compliance visit and assessments.

 

Indeed, companies holding or applying for a Sponsorship Licence need to comply with Immigration Rules and HR system requirements.

 

The Home Office can decide to attend the company’s office at any time before (pre-licence assessment visit) and after (post-licence compliance visit) granting the Sponsorship Licence and conduct a compliance visit and assessments to check if the company meets the requirements and fulfils its duties as a Sponsor.

 

The main change in this new guidance is the removal of parts of the guidance about making a recommendation.

 

Other changes reflect the updated Immigration Rules and some minor housekeeping.

 

  • Licence decision outcomes

 

From 15 January 2018, compliance officers will no longer make a recommendation (feedback) regarding the licence outcome following a compliance visit. They will conduct and document a thorough assessment of the sponsor’s current state of compliance, gathering supporting evidence.

 

The caseworker will then use the evidence presented in the report, along with other relevant evidence to make a decision regarding the licence outcome.

 

The Home Office will not suggest any improvements in its report. They will focus on highlighting each breach.

 

Employers wishing to retain or hire non-EEA workers need to get fully prepared. In order to do so, the services of an immigration solicitor advising and assisting for Sponsorship Licence applications but also for the compliance with visa rules and duties as a Sponsor are now primordial.

 

If you wish to apply for a Sponsorship Licence or are already a sponsor and want to make sure that you comply with the complex immigration rules, please do not hesitate to contact our immigration team or our senior solicitor, Pam Barar.

2
Mar

Updated guidance “Indefinite Leave to Remain: calculating continuous period in the UK”

Updated guidance “Indefinite Leave to Remain: calculating continuous period in the UK”

This guidance covers how to calculate the 5-year continuous lawful period in the UK requirement for applicants applying for indefinite leave to remain (settlement). It also covers accelerated settlement in relevant categories.

Changes from last guidance version:

makes changes to the section covering 180 days’ absence in a 12-month period;

adds Points Based system (PBS) dependants as a category covered by this guidance;

removes the Tier 2 rule covering gaps in employment of 60 days;

removes references to equivalent routes in the Crown Dependencies – Information on leave held in the Crown Dependencies has been moved to Common Travel Area guidance.

This updated guidance replaces the Indefinite leave to remain: calculating continuous period in UK modernised guidance version 15.0 which has been withdrawn and archived.

  1. Changes to the section covering 180 days’ absence in a 12-month period
  • 180 whole days absence

According to the new guidance, “no more than 180 days’ absences are allowed in a consecutive 12-month period”.

From 11 January 2018, the rules refer to absences in any rolling 12-month period, whereas previously they referred to absences in block of 12 months starting at the date of the application’s submission.

Example

o Under the previous rule

If an application is submitted on 01 January 2018, the Home Office will calculate the 180 days’ absences from:

– 01 January 2018 to 01 January 2017

– 01 January 2017 to 01 January 2016

– 01 January 2016 to 01 January 2015

– 01 January 2015 to 01 January 2014

– 01 January 2014 to 01 January 2013

o Under the new rule

If an application is submitted on 01 January 2018, the Home Office can calculate the 180 days’ absences for any consecutive 12-month periods from 01 January 2013 to 01 January 2018.

For instance, if the applicant has 190 days of absences in:

– September and December 2016 and,

– February and July 2017

The Home Office can calculate the absences from August 2016 to August 2017.

Whereas under the old rules, the 190 days absences could be divided and calculated separately under year 2016 and 2017 so that the applicant can still fall eligible for the rules.

  • Absences due to economic or humanitarian crisis

On 11 January 2018, the Immigration Rules were amended to discount any absences from the UK from counting towards the 180-day limit where the absence was due to the applicant assisting with a national or international economic or humanitarian crisis, such as the Ebola crisis which began in West Africa in 2014.

This covers all Tier 1 and Tier 2 applicants. ILR applicants should provide evidence from their sponsor (if applicable), employer or similar organisation to confirm that the absence was related to a crisis.

  • Exceptional cases

Absences of more than 180 days in a 12-month period before the date of application will mean the continuous period has been broken. However, the Home Office may consider the grant of indefinite leave to remain outside the rules if the applicant provides evidence to show the excessive absence was due to serious or compelling reasons.

The applicant must provide evidence in the form of a letter which sets out full details of the compelling reason for the absence and supporting documents.

Serious or compelling reasons will vary but can include:

–          serious illness of the applicant or a close relative

–          a conflict

–          a natural disaster, for example, volcanic eruption or tsunami

Absences of more than 180 days in any 12-month for employment or economic activity reasons are not considered exceptional therefore cannot be discounted.

An applicant can also provide a letter setting out reasons why they believe changes to how the 180 days are counted will cause them exceptionally harsh consequences.

  1. Addition of PBS dependants and spouse as a category covered by the new guidance
  • PBS dependants

PBS dependants and spouse now have to satisfy the 180 days requirement. They must be absent from the UK for no more than 180 days in any consecutive 12-month periods. However, they do not need to include any absence from the UK during periods of leave/visa granted under the Immigration Rules in place before 11 January 2018 towards the 180 days allowable absences.

  1. Removal of the Tier 2 rule covering gaps in employment of 60 days

Previously, for Tier 2 migrants, the 5 year continuous employment requirement in the UK was not considered to be broken when, during a break in employment, the applicant applied for further leave as a Tier 2 migrant within 60 days of the end of their previous employment. 

2
Oct

Report finds majority of Tier 2 and Tier 5 sponsors are failing to comply with their requirements

UK Immigration Compliance 

A report commissioned by an immigration law firm found that a majority of British companies were not aware of the correct rules for sponsoring overseas workers. Consequently, many businesses could face fines, closure or even prison sentences for directors if they fail to comply with the visa rules.

The report found that two-thirds of the businesses surveyed were unaware what documents they needed to keep on file for sponsored overseas workers, and 95 per cent were not reporting all the required changes in circumstances for sponsored workers.

In addition, the report found just 7 per cent of companies were advertising job vacancies correctly when filling a position with a non-EEA citizen

The findings revealed that businesses are not carrying out sufficient internal compliance audits to ensure internal policies, procedures and guidelines follow the required ‘duties’ of a sponsor to ensure they meet the Home Office’s stringent compliance checks.

As a result, the report warned that up to 95 per cent of small and medium-sized businesses risk having their sponsor licence revoked and many could even face closure under strict new provisions of the Immigration Act 2016. Directors risk heavy fines or even a prison sentence.
Employers wishing to retain both EU and non-EEA workers need to get fully prepared ahead of Brexit. In order to do so, the services of an immigration solicitor advising and assisting for Sponsorship Licence applications but also for the compliance with visa rules are now primordial.

 

If you wish to apply for a Sponsorship Licence or are already a sponsor and want to make sure that you comply with the complex immigration rules, please do not hesitate to contact our immigration team or our senior solicitor, Pam Barar.

20
Apr

Changes to Certificate of Sponsorship Charge

The Immigration Skills Charge Regulations 2017

On 6th April 2017, The Immigration Skills Charge Regulations 2017 came into force. This new piece of legislation provides that a sponsor, subject to certain exemptions must pay a charge each time it assigns a certificate of sponsorship to a skilled worker.
A sponsor must pay a charge to the Secretary of State each time it assigns a certificate of sponsorship to a skilled worker. Failure to pay the charge to the Secretary of State means that the purported assignment of certificate is invalid whilst the obligation to pay the charge is outstanding.

 
Additionally, as the Secretary of State can refund or waive part or all the charge, failure to pay the outstanding charges does not prevent the valid assignment of a certificate of sponsorship when the Secretary of State waives part or all the charge.

 

Exemptions

 
However, there are certain instances whereby a sponsor is not obligated to pay the charge when assigning a certificate of sponsorship to a skilled worker –

 
(a) in respect of an occupation coming within any of the following codes in version 5.1 of the Standard Occupational Classification 2010 Index:
(i) 2111 (chemical scientists);
(ii) 2112 (biological scientists and biochemists);
(iii) 2113 (physical scientists);
(iv) 2114 (social and humanities scientists);
(v) 2119 (natural and social science professionals not elsewhere classified);
(vi) 2150 (research and development managers);
(vii) 2311 (higher education teaching professionals);
(b) who is intended to be the subject of an intra-company transfer as a graduate trainee, that being a temporary posting for a period of no more than 12 months, to the United Kingdom branch of a multi-national organisation as part of a structured graduate training programme, which clearly defines progression towards a managerial or specialist role;
(c) in respect of whom the sponsor has already assigned a certificate of sponsorship (“the first certificate”), but only to the extent that any subsequent certificate of sponsorship is assigned in respect of a period of prospective leave which does not exceed the period in respect of which the first certificate was assigned;
(d) who has leave to enter or leave to remain for the purpose of study;
(e) in circumstances where—
(f) that sponsor has already assigned a certificate of sponsorship to that individual (“the first certificate”); but
(g) by virtue of paragraph (d), the sponsor was not obliged to pay the charge when the first certificate was assigned; and
(h) the assignment of any subsequent certificate of sponsorship relates to the same role as the first certificate;
(i) who seeks entry clearance for a period of less than six months.

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