A nervous disposition
2011 has been an eventful year for immigration with, amongst other things, 8 UK Border Agency (UKBA) consultations which related directly, or indirectly, to the work routes and the permanent immigration cap for Tiers 1 and 2 being introduced on 6 April 2011.
Detailed below are some of the key events and changes from the last 12 months, with links to the full updates.
The Business Immigration team at Kingsley Napley LLP wish you a Merry Christmas and a very happy and prosperous 2012.
2011: A YEAR OF CHANGES
Work Restrictions on A8 Nationals Came to an End, 5/5/11
On 1 May 2011 A8 nationals were permitted to work in the UK without restriction. The Worker Registration Scheme for nationals of those countries which joined the EU on 1 May 2004 is no longer in operation and employers can employ those people without any need for immigration permission.
Tier 1 (Exceptional Talent) Route is Now Open, 23/8/11
In August 2011 the UKBA announced that the Tier 1 (Exceptional Talent) category of the points-based system is now open. The route is designed for those people who are – or have the potential to be – internationally recognised in the arts or sciences.
Indefinite Leave to Remain Absences and Appropriate Rate, 12/12/11 and 3/11/11
The UKBA is now strictly adhering to policy as far as indefinite leave to remain absences are concerned. If the applicant has spent more than 180 days outside the UK during the five-year period preceding the filing of the application, regardless of whether or not this was for business or pleasure, the application will be referred to a senior caseworker for consideration on a discretionary basis and it could fall for refusal if the absences exceed 180 days.
On 31 October the immigration rules were amended to confirm that work permit holders and Tier 2 migrants applying for settlement must submit evidence that they are being paid at or above the appropriate rate for their job as set out in the Tier 2 codes of practice.
New Reporting Duty For Sponsors Where Employee On Sabbatical, 21/10/11
The UKBA has added an additional reporting requirement in a situation where an employee goes on an unpaid sabbatical for over one month. Most significantly, the employee can no longer be sponsored during this period, unless an exception applies, and therefore a NEW application will need to be approved before the employee can resume their duties in the UK.
Unannounced UKBA Compliance Visits, 2/12/11
Many clients will have received unannounced compliance visits by the UKBA which will often be a considerable inconvenience for the Authorising Officer and members of the HR team. However, it is possible to approach the UKBA in order to set up a mutually convenient appointment and the UKBA will endeavour to facilitate this.
Biometric Residence Permits to be Rolled Out to Remaining Migrants, 9/12/11
Subject to receiving parliamentary approval, from 29 February 2012 all migrants applying for permission to remain in the UK for more than six months will need to apply for a Biometric Residence Permit. This roll out will incorporate all remaining applicants who thus far have not been subject to the Biometric Residence Permit requirements. It will even include those applying for indefinite leave to remain.
The Migration Advisory Committee (MAC) Has Published its Recommendations on Settlement Criteria for Tier 1 Exceptional Talent and Tier 2 and for a Minimum Income Threshold for Spouse Visa Applications, 7/11/11 and 24/11/11
The MAC is recommending the implementation of a minimum annual pay threshold of between £31,000 and £49,000 in order to qualify for settlement in the Tier 2 General and Tier 2 Sportsperson's categories. This will not apply to Tier 1 Exceptional Talent migrant and no recommendations were put forward with regard to Ministers of Religion.
With regard to spouse visa applications, the MAC has recommended that the threshold earned income of the sponsor in the UK should be set between £18,000 and £25,700 gross per year.
Latest News on Premium Sponsorship Proposal, 2/12/11
The UKBA is proposing to introduce a Premium Service for trusted sponsors during the spring of 2012 for an annual fee of £25,000. Full details of the respective responsibilities of the UKBA and the sponsor have yet to be published, however, it is likely that sponsors will need to apply for this in order to receive a more reliable and speedy processing service for its foreign migrants.
Call for Evidence on the Level of an Annual Limit on Tier 2 and Associated Policies, 4/11/11
On 26 October the MAC published its call for evidence and tabled ten questions ranging from the annual limit for Tier 2 General Certificates of Sponsorship, the minimum salary to qualify for Tier 2 Intra Company Transfer, whether allowances could be included, increase the skill level for qualifying roles from NQF4+ to NQF6+ and decreasing the salary level to enable eligibility for an unrestricted Tier 2 General certificate.
Kingsley Napley has submitted evidence to the MAC on its findings, having consulted with a number of its clients. Of particular concern is the potential loss of a number of occupations from the graduate level SOC codes, including Journalists and Business and related associate professionals. The final day for submission of evidence to the MAC was 21 December.
HOT TOPICS FOR 2012
The immigration minister will be considering the recommendations of the MAC as a result of the consultations which have been carried out throughout 2011 and Kingsley Napley will host a series of breakfast briefings in 2012 to explain the full impact of any proposals from the UKBA, as a result of the MAC recommendations.
The Business Immigration Team at Kingsley Napley will continue to have significant high-level input into the UKBA's policy formulation and will keep all our clients updated via our Immigration Updates throughout the year.
For more information, please contact: Nicolas Rollason, Head of Business Immigration
T. +44 (0) 207 814 1276
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