Various new developments have been announced.
Accession of Croatia to the European Union The United Kingdom Border Agency (UKBA) has announced that Croatia is expected to join the European Union (EU) on July 1, 2013. UKBA has stated its commitment to applying transitional restrictions on labor market access to nationals of any future EU Member States as a matter of course, and therefore restrictions will be applied to nationals of Croatia. On October 18, 2012, UKBA published a Statement of Intent on the proposed transitional arrangements governing Croatian nationals' access to the UK labor market. In summary:
- Work sponsorship will be governed by the Points-Based System for those wishing to take on skilled occupations in the UK. This requirement will end after a period of 12 months of employment in the UK
- Family members will not be subject to the work authorization requirement
- The requirement to meet the skills test will be based on the Immigration Rules in place as of December 2011 and the skill level under Tier 2 therefore will be NQF 4+
- A Certificate of Sponsorship (CoS) will count against the annual Tier 2 General limit, but Croatians will be given priority over third-country nationals if the limit is oversubscribed.
- There will be no requirement to obtain entry clearance before arrival but an application for an Accession Worker registration certificate (AWRC) will be required (this can take up to 6 months to be issued based on prevailing service standards but this is currently being reviewed)
- The cooling-off period will not apply and therefore upon the expiration of the AWRC, if the Croatian national leaves the UK, there is no requirement to spend 12 months outside the UK
- No permission will be given to take up low-skilled work under the Seasonal Agricultural Workers Scheme or the Sectors-Based Scheme, but the UKBA has asked the Migration Advisory Committee (MAC) to undertake an impact assessment on the relevant sectors
The 12-month rule will apply so that work restrictions end after continuous employment of 12 months. Croatians who are legally working in the UK on the date of accession and have done so for a continuous period of at least 12 months will no longer be subject to work restrictions. The same will apply to those who work legally for an uninterrupted period of 12 months falling partly or wholly after the date of accession.
Furthermore, workers posted to the UK from a business established in another Member State will not be subject to restrictions, nor will those Croatians wishing to establish a business in the UK.
Finally, graduates will be able to obtain a registration certificate confirming unrestricted access to the labor market provided they meet the criteria for a grant of leave under the previous Tier 1 (Post-Study) category.
Migration Advisory Committee Publishes Recommendations on the Revised Tier 2 Codes of Practice
On October 17, 2012, the Migration Advisory Committee (MAC) published recommendations in relation to the revised Tier 2 Codes of Practice, appropriate salary levels, and advertising requirements.
To sponsor a migrant under Tier 2 of the Points-Based System, employers must map their migrant roles to job titles listed in the codes of practice. The current codes were updated in June of this year and a link to these can be found on the UK Border Agency website. (See http://www.ukba.homeoffice.gov.uk/business-sponsors/points/sponsoringmigrants/employingmigrants/codesofpractice/.) The relevant codes for Tier 2 are those that are classified as graduate-level roles (NQF 6+). The MAC has reviewed these codes, along with the commensurate salary levels and advertising requirements.
The MAC has produced a revised list of 97 occupations skilled to NQF 6+ and has published this new list in its latest report at Table 8.1 on pages 126-134. (See http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/Tier2-codesofpractise.pdf.) Some job titles have changed and some new occupations have been added. Furthermore, it has recommended a two-tier salary banding for each job code, either New Entrant or Experienced Worker. The MAC is proposing that the New Entrant salaries stipulated are appropriate for those migrants who left full-time education less than 3 years ago and for any migrant undertaking a graduate training program. If the government accepts this recommendation, this will significantly assist many employers who have thus far struggled to meet the high salary levels stipulated in the current codes for some of their graduate migrants and those undertaking training programs.
One potential issue is that when the time comes to extend the visa, employers may need to meet the experienced worker salary level, which could require a significant pay increase.
With regard to advertising, the MAC has made some pragmatic recommendations by stating that the advertising codes of practice should not be unduly prescriptive in terms of where the employer should advertise the role, and is recommending that employers be permitted to insert "competitive salary" in their advertisements where it is normal practice within a given sector. This would leave the decision on where to advertise to employers, subject to retaining the current stipulations, which include ensuring that the advertisement reaches a nationwide audience and is placed for 28 days. The MAC also recommends that the government review the current requirement for employers to advertise on Job Centre Plus, based on feedback received from employers that it is not much used for matching skilled workers with graduate vacancies.
A modernization of the codes of practice was long overdue. It is hoped that the government will follow these recommendations.
Tier 2 Priority Postal Processing Pilot
The UK Border Agency has launched the long-awaited priority postal processing pilot for Tier 2 extension applications where the applicant has previously been issued a Biometric Residence Permit or leave (permission) to remain in the UK.
The initial pilot will include a maximum of 30 applicants per day plus their dependents, on a first-come, first-served basis. It is hoped that this will alleviate the existing strain on fast-track appointment slots, provided migrants are able to remain in the UK for two to three weeks while their extension applications are processed via this new priority postal route.
The good news is that it is cheaper and potentially less time-consuming for the migrant than the fast-track route, where the migrant is required to appear at one of the UKBA's Public Enquiry Offices. With this new priority postal option, the migrant and any dependents will need to go to one of three designated post offices within London to submit biometric data and deliver the application package. The post offices are in Action, Blackfriars, and Broadway. Employers should ensure that their eligible migrants have all their documents ready in support of the application before the application is submitted online, as the time frame for each stage of the process is tight.
As soon as a new Certificate of Sponsorship for the extension has been assigned to the migrant, a request must be e-mailed to the UKBA between 8.30 a.m. and midnight for each qualifying migrant. A reply is received within 24 hours as to whether the request has been accepted, and from this point the stringent timetable must be adhered to as follows:
- Within 24 hours of receiving the go-ahead from the UKBA, a standard online extension application must be submitted and the standard postal fee paid online (currently £561 per applicant and £281 for each dependent);
- A Payment Notification Number (PNN) is generated, which should then be e-mailed to the UKBA so that they can link it to the applicant. A cover sheet is also generated that lists the documents to be submitted with the application; two copies of this should be printed;
- A Biometric Notification Letter is then mailed to the applicant or his or her attorney (if the attorney has submitted the online application). Some are urging the UKBA to agree to e-mail these letters to avoid delay at this stage; and
- Within 48 hours of receiving the letter from the UKBA, the applicant and any dependents must appear at one of the three designated post offices within London to submit biometric data and lodge (file) two copies of the cover sheet, along with the supporting documents, in a sealed envelope.
Delays at Immigration Control When Travelling Without a Biometric Residence Card
Where migrants have recently obtained a visa or visa extension in the UK, the new visa will be endorsed on a Biometric Residence Card (BRP). This has been the case since BRPs were introduced in early 2010. It is not advisable for migrants to undertake travel following the visa approval until they have received their BRP, which usually follows within five days of confirmation of the visa approval. Unfortunately, systems used by immigration officials at the ports are not immediately synchronized with those in use by the BRP team. This has led to migrants being delayed at immigration control for up to two hours if they travel without the BRP, so that checks can be done.
Changes To Applications From Overstayers
The UK Border Agency (UKBA) issued a statement in early September to remind migrants that starting on October 1, they must submit extension applications within 28 days of the expiration date of their period of stay; otherwise the application will be refused.
In addition, for those applying to extend their student visa under Tier 4, the gap between the expiration of the period of stay and the start date of the next course of study must be no more than 28 days. Updated Tier 4 (Student) policy guidance will be issued to reflect this change.
Renewal of Sponsor Licence
Employers who obtained their Sponsor Licence in November 2008 can now submit their license renewal application via the Sponsor Management System. It is vital that the Sponsor summary details be fully updated, including any change to Sponsor address, Authorising Officer, Level 1 and 2 Users, before submitting. This will ensure that employers are fully complying with their sponsor obligations. The need to comply with Sponsor obligations has recently been highlighted in the news with the announcement of the withdrawal of the Sponsor Licence from the London Metropolitan University.
New Call for Evidence from the Migration Advisory Committee
The Migration Advisory Committee (MAC) has just issued a call for evidence on the Shortage Occupation List (SOL) in response to the following questions:
1. Are there any occupations skilled to NQF 6+ that should be added to the SOL, due to the scarcity of suitably skilled resident workers?
2. Should inclusion in the SOL be a temporary measure and if so, what would be an appropriate period? Should removal after a prescribed period of time be automatic or should there be exceptions? For those occupations that have been on the list for over two years, should there be transitional measures introduced to allow for removal if appropriate to do so?
3. Should occupations in the creative sector, including artists, authors, actors, dancers and designers, continue to be included in the Tier 2 graduate occupation list, even though they are not skilled to NQF 6+? If so, on what terms?
4. Should other occupations not skilled to NQF 6+ that currently appear on the SOL remain there and, if so, what is the justification for this?
It is strongly recommended that employers provide evidence relating to the SOL, particularly if the employer currently recruits migrants for positions on the shortage list. Evidence should be provided by November 30.