Immigration Update: New statement of changes to the immigration rules

21 October 2014

On 16 October 2014 the Home Office published its latest Statement of Changes to the Immigration Rules.  Key changes affecting Sponsors include:

Tier 2

  • An assessment will now be made by the Home Office as to whether a genuine vacancy exists for Tier 2 (Intra-Company Transfer) and Tier 2 (General) applications.  This change empowers Entry Clearance Officers and in-country caseworkers to refuse applications where there are reasonable grounds to believe that the job described by the Sponsor does not genuinely exist, has been exaggerated to meet the Tier 2 skills threshold, or (in respect of Tier 2 (General)) has been tailored to exclude resident workers from being recruited, or where there are reasonable grounds to believe that the applicant is not qualified to do the job.As the Sponsor Licence Unit already performs this function when assessing Restricted Certificate of Sponsorship (RCoS) applications it would appear to be a duplication of effort if Entry Clearance Officers will also perform this genuine vacancy assessment.  For those migrants earning in excess of £153,500 the Resident Labour Market test requirements do not apply in any event.
  • An existing requirement in the published guidance for Sponsors is that Tier 2 Migrants cannot be sponsored to fill a position, undertake an on-going routine role or to provide an on-going routine service for a third party who is not the Sponsor. This requirement is being replicated in the Immigration Rules.  This enables applications by individuals for entry clearance or leave to remain, and applications by Sponsors for Restricted Certificates of Sponsorship, to be refused in line with any wider compliance action relating to the Sponsor in question.This applies to so called ‘contract cases’ where migrants are based at a client site and is of particular significance for the IT sector.  These cases will now incur greater scrutiny to ensure there is a genuine provision of services by the Sponsor and not disguised employment by the third party.
  • A change is being made to the Tier 2 (General) provisions for extension applications where the applicant is continuing to work in the same occupation for the same sponsor.  Such applicants are exempt from the Resident Labour Market Test and currently the exemption only applies if the applicant still has current leave as a Tier 2 (General) Migrant when they make their extension application.  The change will enable the applicant to benefit from the extension if their previous leave as a Tier 2 (General) Migrant expired no more than 28 days before they make their extension application.
  • A temporary provision, dating back to 2009, waiving the £20,500 minimum salary threshold where companies are reducing their employees’ hours in order to avoid redundancies, is being removed.

Tier 5 Youth Mobility Scheme

The annual allocations for participating countries on the scheme are being set for 2015.  There is an increase in the allocations for New Zealand (16%).

Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Creative and Sporting)

A change is being made to the table of governing bodies to include information on which Tier(s) each body may endorse applicants in.  Updates are also being made to the contents of the list of sports governing bodies.

Business Visitors

A new category has been added for overseas lawyers, who are employees of international law firms which have offices in the UK.  The change will allow the business visitor to provide direct advice to clients in the UK on litigation or international transactions provided they remain paid and employed overseas.

These changes will come into effect on 6 November 2014 and will be discussed in more detail at our Seminar on 13 November 2014.

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