Tier 2 ICT Salary Requirements

Tier 2 ICT Salary Requirements

This guide sets out the Tier 2 ICT salary requirements and considerations so that you can avoid an adverse visa decision and gain the points needed to secure the Tier 2 ICT visa.

Background

Tier 2 (Intra-company Transfer) Long Term visa (or Tier 2 ICT visa) allows a multinational company to transfer highly skilled overseas nationals to their branch or office in the United Kingdom (UK), where there is a genuine temporary need.

Under the Immigration Rules, there are a number of requirements to be met. On fundamental, and often confusing criteria, which sometimes lead to the refusal of the Tier 2 ICT visa, is the Tier 2 ICT salary requirements.

In order to secure a Tier 2 ICT visa, the applicant must meet the Tier 2 ICT salary requirements. We have focused on this requirement due to a recent approach from a company and subsequent query on Quora

To gain sufficient points to secure a Tier 2 ICT visa under the Points Based System of the Immigration Rules, the applicant must have:

  • A skilled job offer;
  • A certificate of sponsorship from an organisation that is a licensed sponsor in the UK; and
  • Evidence that they will receive the appropriate salary.

In relation to the latter, the Immigration Rules specify that the Tier 2 ICT visa applicant must earn a minimum salary of £41,500 per year or the appropriate salary for their job type (whichever is the higher). Tier 2 ICT Graduate Trainee visa holders must earn a minimum salary of £23,000, though our focus here is on the Tier 2 ICT Long Term visa sub-category.

This requirement can cause HR professionals within multinationals and Tier 2 ICT visa applicants much concern. Indeed, applications for a Tier 2 ICT visa can be refused if the salary requirements are not met. For this reason, I always ensure that HR professionals understand the important connection between the role to be offered to the Tier 2 ICT applicant, the hours to be worked in the UK and the salary to be paid.

Hourly rates

The annual salary figure is based on 39 hours per week. As a result, a Tier 2 ICT Long Term visa applicant, who has been offered a position in the UK office, and who will receive a salary of £41,500, will earn £20.46 per hour.

That is, 41,500/52 = 798.08

798.08/39 = 20.46

If the applicant were to be offered £41,500 for employment, of say 40 hours per week, the visa applicant will fall short of the minimum salary requirement and their visa application will be refused. Instead, in this example, the applicant would be expected to earn £42,556.80 per annum based on 40 hours per week.

That is, 20.46 x 40 = 818.40

818.40 x 52 = 42,556.80

Where the Tier 2 ICT visa applicant has not worked for the sponsor in their overseas office for at least 12 months, the applicant must be offered an annual salary of at least £73,900.

For completeness, Tier 2 ICT Graduate Trainees need only have been employed by the sponsor in their overseas office for 3 months.

SOC codes

We now have to add the Standard Occupational Classification (SOC)code of the Codes of Practice in Appendix J of the Immigration Rules into the mix.

The HR professional must enter the SOC code into the Certificate of Sponsorship, as confirmation that the Tier 2 ICT applicant will be paid at, or above, the appropriate rate of salary for the role as set out in Appendix J of the Immigration Rules.

SOC codes are used by sponsoring employers and UK Visas and Immigration (UKVI) to assess, not only the correct skill level for the specific employment role, but also the appropriate salary.

‘Appropriate salary’

So what do we mean when we say that the highly skilled applicant must earn a minimum salary of £41,500 ‘or the appropriate salary for their job type (whichever is the higher)’?

Well, the Tier 2 ICT Long term visa applicant will have to earn the annual salary set out under the appropriate SOC code, if that salary is higher than £41,500 per annum.

Again, salary calculations are based on 39 hours per week.

So, to clarify, if the Tier 2 ICT visa applicant is seeking to transfer to the UK to undertake the role of an experienced Marketing Director, as mapped to SOC code 1132, as listed at Table 2 of the Codes of Practice they will need to earn a minimum annual salary of £49,900. That figure may include certain employment allowances – see below.

If the applicant wishes to enter the UK and work as an experienced Social Services Manager as mapped to SOC code 1184 of the Codes of Practice, they cannot rely on the salary of £29,100, as specified. Rather, the company will have to pay the applicant an annual salary of £41,500.

This may all seem nonsensical, as many of the salaries listed within the Codes of Practice list salaries of less than £41,500. Yet, worth noting that the Codes of Practice apply to Tier 2 (General) visa applicants also, who can earn a minimum salary of £30,000 per annum, unless the appropriate salary for their job type is higher. Therefore, it is feasible for a Tier 2 (General) visa applicant to meet a lower minimum salary threshold in comparison to an applicant applying for a Tier 2 ICT Long Term visa.

New entrant v experience worker

The salary, as mapped to the appropriate SOC code, will need to factor in whether the applicant is a ‘new entrant’ or an ‘experienced’ hire.

If the applicant has worked in a particular role for the company for a lengthy period of time, the applicant will be deemed to be an experienced hire. By entering the salary figure into the Certificate of Sponsorship, the sponsoring employer is undertaking to pay the stated salary to the applicant for the initial period of the Tier 2 ICT visa. That is, 3 years and 1 month.

The applicant is entitled to extend their visa, from within the UK, to a total of 5 years. At the time of the renewal, the applicant must earn the salary rate for an experienced hire or £41,500 (whichever is the higher salary), so as to meet the Tier 2 ICT salary requirements. This is regardless of whether the applicant first earned a lower new entrant salary or not.

It is possible for sponsors to support an application for a 5-year visa. Some companies do so because of the certainty that a longer term visa can provide to both the business and applicant. If, from the very outset, the company wishes to sponsor the applicant for the full 5-year term of the visa, the applicant must be paid at, or above, the appropriate experienced rate of salary for the role, as set out under the SOC code or £41,500, whichever is the higher. This is regardless of whether the applicant would ordinarily be deemed to be a new entrant when first transferring to the UK.

Allowances

Tier 2 ICT salary requirements allow the applicant’s salary to be made up of:

  • Guaranteed gross basic pay; and
  • Allowances, up to the limit below, which are guaranteed to be paid for the duration of the applicant’s employment in the UK; and
  • will be paid to a local settled worker in similar circumstances, such as London weighting; or
  • are paid as a mobility premium or to cover the additional cost of living in the UK.

There are certain allowances that a sponsor may pay, but which cannot be taken into account when calculating the Tier 2 ICT applicant’s appropriate salary levels. They include, but are not limited to:

  • One-off payments, such as those linked to the cost of relocation, which will not form part of the Tier 2 ICT applicant’s regular salary package;
  • Non-guaranteed payments, such as bonuses or incentive related pay;
  • Overtime payments, whether or not overtime is guaranteed;
  • Business expenses payment, including (but not limited to) training, international travel, hotels and business travel within the UK;
  • Any payments for which the applicant will need to reimburse the sponsor or a linked overseas business;
  • Employer pension contributions;
  • Medical benefits;
  • Tuition fees payments; and
  • The value of any shares that the applicant may obtain in exchange for some of their UK employment rights as an employer-owner.

It is not unusual for sponsors to include accommodation allowances as part of the applicant’s salary calculations. Nonetheless, UKVI only consider accommodation allowances of up to a maximum of 30 per cent of the gross salary package.

UKVI have helpfully provided 2 examples in their guidance, which it is worth replicating here:

Example 1

The sponsor offers:  

* Accommodation allowances: £10,000
* Salary and other (non-accommodation) allowances: £35,000  

The total salary package the sponsor has offered is:
*£10,000 + £35,000 = £45,000.  

The salary and other (non-accommodation) allowances can be a minimum of 70 per cent of the total package you can take into account.  

This means that £35,000 is 70 per cent of the maximum package you can take into account.

You calculate this maximum package by dividing £35,000 by 70 per cent (or 0.7):  
* £35,000 ÷ 0.7 = £50,000  

In this example, the total package the sponsor has offered is less than the maximum package that UKVI can take into account.

In this case UKVI can:  
* Take into account the whole package and use the total £45,000 when checking the appropriate rate  

As a result, UKVI will award 20 points for meeting the Tier 2 ICT salary requirements.

Example 2

The sponsor offers:

* Accommodation allowances: £20,000
* Salary and other (non-accommodation) allowances: £24,500  

The total salary package the sponsor has offered is: £20,000 + £24,500 = £44,500.

The salary and other (non-accommodation) allowances can be a minimum of 70 per cent of the total package you can take into account (or 0.7):  
* £24,500 ÷ 0.7 = £35,000.

In this example the total package the sponsor has offered is more than the maximum package you can take into account.  

In this case UKVI can:  
*Only take into account £35,000  

As a result, UKVI will award no points for meeting the Tier 2 ICT salary requirements because the salary falls below the £41,500 threshold for long term applicants.

For completeness, Tier 2 ICT Graduate Trainees accommodation allowances of up to a maximum of 40 per cent of the gross salary package, instead of 30 per cent for long term staff. This is to reflect the higher cost of short term accommodation.

Conclusion

Tier 2 ICT visas are a helpful tool for allowing companies to transfer highly skilled talent to fill roles in the UK, that cannot be filled by resident workers or by those from within the European Economic Area (EEA). There are strict requirements to be met, including the Tier 2 ICT salary requirements.

Where the Tier 2 ICT salary requirements are not met, UKVI will refuse the application on the basis that the applicant has not gained the necessary points to be awarded a Tier 2 ICT visa.

There are many factors which HR professionals and Tier 2 ICT applicants must take into account when assessing whether the salary requirements are met, such as: whether the role has been mapped to the most suitable SOC codes of the codes of Practice within the Immigration Rules; if the appropriate salary level has been met or exceeded; if the applicant is a ‘new entrant’ or experienced hire’; the hours of work; and length of the term of the visa to be applied for.

The Tier 2 ICT salary requirements are less than straightforward. Yet, taking the above into account, and paying due diligence to the Immigration Rules and UKVI guidance, can help ensure that the Tier 2 ICT visa is issued without distress to the applicant and without further time and cost to the sponsoring company.

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Written by Carla Thomas – Managing Director at Thomas Chase immigration.

Thomas Chase Immigration offer immigration assistance to individuals and families.

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Contact us at [email protected] visit  https://www.thomaschaseimmigration.com/contact-us to arrange a consultation. Or learn more about from our blogs

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Immigration Health Surcharge FAQ

Immigration Health Surcharge FAQ

The UK Government is increasing the immigration Health Surcharge to be paid by overseas nationals looking to enter and stay in the United Kingdom (UK). In our Immigration Health Surcharge FAQ blog, we outline the nature of the changes and the reasons given for the increase and answer other frequently asked questions,

What are the Immigration Health Surcharge changes?

On 8 January 2019, the Immigration Health Surcharge (IHS) will increase by £200 to £400 per year for non-European Economic Area (EEA) nationals seeking to enter the UK for over 6 months.

The surcharge will also double for non-EEA students and Tier 5 (Youth Mobility) visa applicants from £150 to £300 per year.

How is the Immigration Heath Surcharge calculated?

If the applicant applies for a Tier 2 work for visa for a term of 3 years, the applicant will incur a surcharge of £1,200. Students on the other hand can expect to pay £300 per year.

When was the Immigration Health Surcharge introduced?

On 6 April 2015, the UK Coalition Government introduced the IHS for EEA nationals seeking to live, work and study in the UK for over 6 months. The purpose of the surcharge was to raise funds for the National Health Service (NHS) from overseas nationals in the UK,

In addition to visa application fees, non-EEA nationals were required to pay a surcharge of £200 per year, before the increase, for each year of the length of their visa, payable at the time of the submission of the application.

Students on the other hand were expected to pay £150 per year, prior to the increase.

Why was the Immigration Health Surcharge introduced?

At the time of the introduction, the Government said:

‘Currently non-European nationals coming to work, study or join family members receive free medical treatment under the UK’s NHS in the same way as a permanent resident.’

The Government also quoted Charles Hay, UK Ambassador to South Korea, who said:

‘We, of course, recognise the very valuable contribution that Koreans who come the UK to study and work make to the wider economy and so have deliberately kept the surcharge at a competitive level – lower than most private health insurance policies.’

Unfortunately, the Government neglected to recognise that, not only do non-EEA nationals pay high visa application fees which go towards the State, rather than directly to the Home Office, but that many overseas nationals contribute to the State and NHS by way of income tax.

What are the Immigration Health Surcharge benefits?

In exchange for payment of the IHS, visa nationals will be allowed to access NHS services. The UK Government argues that the surcharge represents good value for money to non-EEA nationals, carrying a lesser fee than some private medical insurance policies.

Why is the Immigration Health Surcharge being increased?

In October 2018, the UK Government asserted that the National Health Service (NHS) received £600 million from the IHS since April 2015. It is projected that IHS increase could rise an extra £220 million for the NHS.

Home Office Immigration Minister Caroline Nokes said:

‘Our NHS is always there when you need it, paid for by British taxpayers. We welcome long-term migrants using the NHS, but the NHS is a national, not international health service and we believe it is right that they make a fair contribution to its long-term sustainability.’

The Minister added,

‘It is only fair that people who come to the UK make a contribution to the running of the NHS, and even with the increase we still continue to offer a good deal on healthcare for those seeking to live in the UK temporarily.’

Overseas nationals working in the UK will still be expected to make National Insurance contributions from their UK salary and pay income tax.

Yet, perhaps the Government also wishes to minimise any shortfall in tax receipts resulting from the UK’s departure from the European Union from April 2019.

How is the Immigration Health Surcharge payment made?

Payment is made online at the time of submission of the visa application, and prior to the visa biometric appointment.

When submitting the visa application, the overseas national will be directed to a separate portal where the IHS will need to be paid. Once completed, the applicant will be issued with an IHS reference.

It will not be possible to submit the application unless the IHS has been paid in full.

Will the Home Office send an Immigration Health Surcharge email?

In some limited circumstances, such as an Ancestry dependant visa applications, payment of the IHS may be requested by the Home Office at a later.

If so, the Home Office will communicate this to the applicant, via email. If so, the applicant must make payment of ant outstanding surcharges within 7 working days if applying from outside of the UK, and 10 working days if applying from within the UK.

Will the Home Office issue an Immigration Health Surcharge refund?

If the visa application is refused, applicants will receive a refund of the IHS. This does not mean that the applicant will receive a refund of the visa application fees in the event of a refusal.

Refunds are also automatically paid if the applicant mistakenly incurred the surcharge twice.

The Home Office states that refunds are normally paid within 6 weeks of the application outcome, though from experience refunds are processed much sooner.

If the refund is not received within the 6 weeks’ timeframe, contact should be made with the Home Office.

What is an Immigration Health Surcharge partial refund?

An overseas national applicant will automatically get a partial refund where the surcharge was paid for a longer period that they were granted leave for.

Are visitors required to pay the Immigration Health Surcharge?

The surcharge will not apply to overseas travellers entering the UK for less than 6 months or those seeking indefinite leave to remain.

Conclusion

The UK Government has doubled the Immigration Health Surcharge payable by non-EEA nationals in order to raise additional funds for the National Health Service.

In exchange, overseas nationals travelling to the UK for over 6 months will have access to national health services. Nevertheless, as set out this Immigration Health Surcharge FAQ blog, overseas nationals will need to factor in this cost, in addition to any visa application fees and relocation costs.

Further, there are number of practical considerations, set out in the Immigration Health Surcharge FAQ blog that non-EEA nationals may wish to bear in mind when taking forward their visa applications.

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Written by Carla Thomas – Managing Director at Thomas Chase Immigration.

Thomas Chase Immigration offer immigration assistance to individuals, families and organisations.

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Right to Rent Checks

Right to rent
Landlords form part of the Government’s plans for maintaining effective immigration controls.  As a result, landlords, or their agents, must carry out immigration checks to ensure that a tenant or lodger can legally rent the residential property in England. Here, we provide guidance to landlords on the right to rent checks to be carried out, and the follow-up checks required, in order to stay compliant with immigration laws.

Background

You’re a landlord in England with residential property for rent.  You find a suitable tenant, you meet them, verify their references, perform a background check, and once assured take a deposit. With move-in dates sorted and direct debits in place, you can sit back and relax.

Well not quite!

Now you have to meet the immigration obligations by carrying out right to rent checks.

Why? The Government is keen to frustrate individuals, who may not be entitled to reside in the United Kingdom (UK) from accessing services and rental property.

Of course, this all places a large onus on you, the landlord. If you are found renting your residential property to a tenant, who does not or no longer has a right to be in the UK, you could be issued with a civil penalty of up to £3,000 per tenant.

So how do you ensure that you stay on the right side of immigration laws?

Here’s how…

Tenants to be checked

The right to rent requirement, under section 32(6)(a) of the Immigration Act 2014, only apply to residential tenancies that started on or after 1st February 2016 in England. There is an earlier date of 1st December 2014 and after, for residential properties in Birmingham, Dudley, Sandwell, Walsall or Wolverhampton.

As a landlord of a residential property, you must ensure that the tenant, or a lodger, can legally rent the property.

To do so, you must carry out checks on the tenant, or if there is more than one person occupying the property, checks must be made on each tenant aged 18 years of age and over.

For the purposes of the Home Office, tenants can include individuals who are not named on the tenancy agreement

In fact, as long as there are tenants at the residential property, right to rent checks need to be carried out regardless of whether:

  • There is no tenancy agreement in place; or
  • The tenancy agreement is no in writing.

How to carry out right to work checks

There are 3 key steps to conducting right to rent checks. They are:

Obtain

After you have confirmed how many adults intend to use your property, you must request their original documents to prove their right to reside in the UK

The Home Office accepts it can be difficult for non-immigration specialists to know which documents to collect and once, collected, what they mean. So the Home Office has split the documents into List A, Group 1 and Group 2, and List B.

List A, Group 1

Documents in List A, Group 1 documents clearly evidence that the individual has a permanent right to rent in England and the UK.

List A, Group 1, documents include:

  • A passport (current or expired) showing that the holder is a British citizen, or a citizen of the UK and Colonies having the ‘right of abode’ in the UK
  • A passport or national identity card (current or expired) showing that the holder is a national of the European Economic Area (EEA) or Switzerland. A registration certificate or document (current or expired) certifying or indicating permanent residence issued by the Home Office, to a national of the European Economic Area country or Switzerland
  • A ‘permanent’ residence, ‘indefinite leave to remain’, ‘indefinite leave to enter’ or ‘no time limit’ card issued by the Home Office (current or expired), to a non-EEA national who is a family member of an EEA or Swiss national
  • A biometric ‘residence permit’ card (current or expired) issued by the Home Office to the holder indicating that the person named has ‘indefinite’ leave in the UK, or has ‘no time limit’ on their stay in the UK
  • A passport or other ‘travel document’ (current or expired) endorsed to show that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK
  • A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the holder is either ‘exempt from immigration control’, has ‘indefinite’ leave in the UK, has the ‘right of abode’ in the UK, or has ‘no time limit’ on their stay in the UK
  • A certificate of registration or naturalisation as a British citizen

Group 2, List A

Where a tenant presents a document from Group 2, List A, you must ensure that you request another document from this list also.

Documents in Group 2, List A include:

  • A full birth or adoption certificate issued in the UK, Channel Islands, the Isle of Man or Ireland, which includes the name(s) of at least one of the holder’s parents or adoptive parents
  • A current full or provisional photo card UK driving licence
  • A letter from HM Prison Service, the Scottish Prison Service or the Northern Ireland Prison Service confirming the holder’s name, date of birth and that they have been released from custody of that service in the 6 months prior to the check
  • A letter issued within the 3 months prior to the check by a UK government department or Local Authority and signed by a named official (giving their name and professional address), confirming the holder’s name and that they have previously been known to the department or local authority
  • A letter issued within the 3 months prior to the check from an officer of the National Offender Management Service in England and Wales confirming that the holder is the subject of an order requiring supervision by that officer; from an officer of a local authority in Scotland confirming that the holder is the subject of a probation order requiring supervision by that officer; or, from an officer of the Probation Board for Northern Ireland confirming that the holder is the subject of an order requiring supervision by that officer
  • Evidence (identity card, document of confirmation issued by one of HM forces, confirmation letter issued by the Secretary of State) of the holder’s previous or current service in any of HM’s UK armed forces
  • A letter from a UK police force confirming that the holder is a victim of crime and has reported a passport or Home Office biometric immigration document stolen, stating the crime reference number, issued within the 3 months prior to the check
  • A letter issued within the 3 months prior to the check signed by a representative of a public authority, voluntary organisation or charity which operates a scheme to assist individuals to secure accommodation in the private rented sector in order to prevent or resolve homelessness
  • A letter issued within the 3 months prior to the check confirming the holder’s name signed by the person who employs the holder (giving their name and business address) confirming the holder’s status as employee and employee reference number or their National Insurance number
  • A letter issued within the 3 months prior to the check from a UK further or higher education institution confirming the holder’s acceptance on a current course of studies. This letter should include the name of the educational establishment, as well as the name and duration of the course
  • A letter issued within the 3 months prior to the check from a British passport holder who works in (or is retired from) an acceptable profession as specified in the list of acceptable professional persons. The letter should confirm the holder’s name, and confirm that the acceptable professional person has known the holder for longer than three months
  • Benefits paperwork issued by HMRC, a UK Local Authority or Job Centre Plus, on behalf of the Department for Work and Pensions or the Northern Ireland Department for Social Development, issued within the 3 months prior to the check
  • Disclosure and Barring Service Certificate (criminal record check) issued within the 3 months prior to the check

List B

If a tenant presents a documents from List B, the document permits the individual a time-limited right to rent the residential property.

Such documents include:

  • A current passport or other ‘travel document’ endorsed to show that the holder is allowed to stay in the UK for a time-limited period

 

  • A current biometric ‘residence permit’ card issued by the Home Office to the holder, which indicates that the named person is permitted to stay in the UK for a time-limited period

 

  • A current ‘residence card’ (including an accession residence card or a derivative residence card) issued by the Home Office to a non-EEA national who is either a ‘family member’ of an EEA or Swiss national or has a ‘derivative’ right of residence
  • A current immigration status document issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK for a time-limited period.

You can also use the Home Office online service Home Office online service to check whether a person is entitled to rent your property.

Check

Once you have obtained the document from the relevant list, you must check the tenant’s document in their presence.

Again, the Home Office is not expecting you to be an expert in immigration documents or inappropriately issued documents. Landlords are merely expected to make reasonable checks to see if the document is genuine and relates to the person in front of you.

So for instance, ask yourself:

  • Does the document look as if it has been obviously tampered with?
  • Does it contain spelling mistakes?
  • It the photograph, on the document, a true likeness of the tenant?

Copy

Copies of the tenant’s List A Group 1 document or List A Group 2 documents or List B document must be kept on file, with a brief record of the date that you checked the originals.

It is crucial to follow the above steps so as to ensure compliance with UK immigration laws. If the tenant is found to have no legal right to reside in the UK, you will have a statutory excuse against a civil penalty if you can evidence that you have obtained, checked and copied the appropriate documents.

Further information can found on the Home Office website.

Timing of checks

It is possible to obtain copies of the identity documents in advance. However, the right to rent checks must be carried out at the start of the tenancy.

There are instances where the right to rent checks must be made well in advance of the start of the tenancy. For instance, if the tenant has limited leave to stay in the UK, or their visa contains an expiry date, you will need to carry out checks 28 days prior to the start of the tenancy.

Follow-up checks

A landlord’s immigration obligation is a continuing one. For that reason, as a landlord, you must ask the adult tenants for proof of their continued right to rent the property.

Where the tenant provides a document from List B, you must obtain and make a copy of the document and follow the same steps again in 12 months’ time, or when the tenant’s leave is due to expire, or when the document evidencing the tenant’s limited leave is due to expire. Doing so, will provide you with a statutory excuse against a civil penalty, should the tenant be found to no longer have a right to reside in the UK.

However, if the tenant provides a document from List A and you have obtained and kept a copy of the document on file, no further checks will be necessary and you are deemed to have a continuing statutory excuse.

When are right to rent checks not required

As the landlord, you are not required to conduct right to rent checks for certain types of accommodation. They include:

  • Social housing;
  • Care homes, hospices or hospitals;
  • Hostels or refuges;
  • Mobile homes; and
  • Student accommodation.

Checks are also not needed if the tenants in accommodation is:

  • Provided by the local authority or Council
  • ‘Tied accommodation’, provided as part of their job
  • Leased to the tenant for a period of 7 years or longer

You will however, require evidence of the above.

The tenant has limited leave but no documents

It is not unusual for a tenant with limited leave to lack documents because they submitted to the Home Office as part of an application to extend their stay in the UK.

This does not mean that the individual is not entitled to rent the property. Instead, you should check their immigration status by completing a short Home Office online form.

Results are normally relayed within 48 hours.

Important

It cannot be stressed enough, that a, you are required to conduct right to rent checks on all new tenants. This is regardless of whether you believe the tenant to be a British citizen. You still need to gather documentary evidence for all tenants and cannot discriminate.

And another thing…

It was somewhat disconcerting to read according to a Residential Landlords Association (RLA) survey, as many as 20% of landlords admitted they were less likely to rent their residential properties to EU nationals.

Apparently, some landlords felt that the right to rent checks for EU nationals were too onerous. For many, renting their properties to British citizens was much easier.

It must be stressed that following, Brexit, the rights of EU nationals remain the same, at least for the time being. But more importantly, and as highlighted above, right to rent checks must be carried out on all adult tenants. Failure to do so could lead to allegations of discrimination and a breach of immigration laws.

The Home Office Code provides more information for landlords.

Conclusion

Right to rent checks are now part of a landlords continuing immigration obligations. To avoid a civil penalty, landlords must carry obtain documents, as appropriate, depending on the status of the tenant. By following the detailed steps above, landlords can protect themselves against a civil penalty and avoid falling foul of anti-discrimination laws.

Written by Carla Thomas – Managing Director at Thomas Chase Immigration.

Thomas Chase Immigration offer immigration help to individuals and families.

Call to action

Need straightforward immigration advice or guidance on the right to rent checks? Contact us at [email protected] to arrange a consultation. Or learn more about from our blogs

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Brexit Deal or No Deal

Brexit latest: Brexit, Trade, Sovereignty and Immigration

Thomas Chase Immigration - Birexit
The UK government looks set to trigger article 50, the formal notification of its intention to leave the European Union (EU). Once triggered, the leaders of the 27 countries within the EU, must unanimously agree how to extricate the UK from the myriad of shared EU regulations by way of transitional and new arrangements. Two years after article 50 is triggered, the United Kingdom (UK), according to the Lisbon Treaty, will no longer be a part of the EU. What are the implications of Brexit to UK trade, sovereignty and immigration? And how are they linked?

Background

Much has been made of the approach the UK government will take during the two years of negotiations once article 50 is enacted. Will the government take a ‘hard’ approach, a sort of clean break? Or will a ‘soft’ approach to leaving the EU be implemented, so that the UK gives up its power and voice within the EU while managing to claw onto some of the benefits of free trade.

Regardless, of the approach to negotiations, we know with certainty, as a result of the Supreme Court’s judgement of 24 January, that the UK parliament must have a say in the UK’s approach to negotiations. And given the members of parliament’s fear of defying the results of the advisory referendum to leave the EU for reasons of reducing EU immigration and magnifying UK sovereignty, article 50 looks set to be triggered within Prime Minister Theresa May’s proposed timescale of March 2017. The timescales are supported by the government’s ‘Brexit Bill’ which comes before parliament in the week beginning 30 January.

The impact to Brexit on Trade and Sovereignty   

The UK’s overall economic growth is mainly dependent upon import and exports. According to the Office of National Statistics (ONS):

‘UK exports have grown at an average rate of 8.7% in nominal terms over the last four decades (1974 -2014), however the level of UK exports as a proportion of world exports has been gradually declining’

The ONS added:

‘World Bank data shows that the UK’s share fell from 7.3% in 1970 to 3.6% in 2014, indicative of slower UK export growth relative to a number of other global economies such as China, Germany and the USA. This decline marks a halving in the UK’s share of world trade since the 1970s. In 1970, the UK held the 3rd highest export share among the G7 economies and China but has since alternated between 3rd, 4th and 5th positions’.

In relation to Brexit, in 2015 (figures for 2016 not yet being available), exports of goods and services to the EU accounted for 44% of the UK’s total exports of goods and service). See ONS’ bulletin

Therefore, leaving the EU, will significantly minimise the UK’s ability to export goods and services to the EU without restrictions. As a third country, the UK will experience an increase in its exporting costs.

To compensate for the impact of trade with the EU post-Brexit, the UK must look to other countries to close the gap.

In her speech of 17 January, Theresa May set out for plan for Brexit negotiations. May said, that she had been given a mandate by the British people to bring about change and outlined her vision for the UK:

‘I want this United Kingdom to emerge from this period of change stronger, fairer, more united and more outward-looking than ever before. I want us to be a secure, prosperous, tolerant country – a magnet for international talent and a home to the pioneers and innovators who will shape the world ahead. I want us to be a truly Global Britain – the best friend and neighbour to our European partners, but a country that reaches beyond the borders of Europe too. A country that goes out into the world to build relationships with old friends and new allies alike’.

For a full transcript of Theresa May’s speech, click here

Yet, trade deals, by their very nature, require compromise, external overarching controls, subjugation and therefore a limit on the sovereignty of the State. To what extent is the UK prepared to compromise its sovereignty in order to secure trade deals with world leaders? And who will it trade with?

Trading partners

One possible post-Brexit trading partners will be the United States (US) and Prime Minister May has taken steps ingratiate herself with the incoming US president, President Donald Trump with a State visit to the US scheduled for Thursday 26 and a meeting with the President set for Friday 27 January.

ONS data from 2015, indicates that the US is the UK’s largest export partner, after Germany. In 2015, the USA accounted for 19.7% and 11.1% of UK’s total exports and total imports, respectively.

In fact, between 2005 to 2015, the UK continually ran a trade surplus with the US with an average value of £28.1 billion, a figure that peaked in 2013 at £40.3 billion but has since fallen to £39.4 billion in 2015. See ONS’ bulletin for further details

Moving forward, the US has a president that has given voice to a sort of protectionist US environment, one where US businesses will reap the rewards of lower taxation, if they ensure that their businesses remain in the US and employ US workers. Countries have been openly criticised by the President for exporting goods to US citizens, created by overseas workers, ignoring the fact that some overseas companies sell goods to US citizens made in the US by US workers – companies such as Samsung Electronics America Inc. and BMW US Manufacturing Company.

This raises a number of questions. How much will UK companies have the accede to Trump’s vision of protectionist US? Will UK companies be welcomed, as early indications show, to enter into trade deals as long as they are heavily weighted in the US’ favour? Will UK businesses be expected to open more branches and sites in the US in order to better access the US market, to the detriment of UK workers? And is it a price worth paying when figures show that even if the US doubles its exports from the UK, this will still fall short of the numbers needs to meet the EU trade shortfall.

Can the UK even expect an equitable trade deal with the US in two years’ time once it has officially left the EU? After all, the UK can only negotiate and agree terms with the US government while it remains part of the EU, with the deal being solidified post-Brexit. However unlikely it may be, it is possible for the US to renegotiate terms once the UK’s economic position becomes clearer post-Brexit which is possible if the UK (and US) find themselves in economically and politically weakened positions in 2020.

For this reason, the UK will have to look for trade deals with not only the US but other countries further afield.

Immigration

In line with her vision of Global Britain, Theresa May has expressed a desire to negotiate trade deals with India and Australia. Both India and Australia share this view, at a price. Favourable immigration controls for their citizens, something which Theresa May has refused to do.

Under current immigration laws, anyone entering the UK from outside of the European Economic Area, is subject to a very strict Points Based System, unlike EU nationals who have freedom of movement. (For the avoidance of any doubt, yes, we do indeed have a Points Based System in place).

During Foreign Secretary Boris Johnson’s address to the second Raisina Dialogue event in New Delhi, India in January, Johnson insisted that by leaving the EU, the UK would be free to enter into trade partnership with India, the world’s fastest growing economy. In response, Dr S Irudaya Rajan, an adviser to the Indian government on migration issues reaffirmed the importance of mobility stating that that free movement of its citizens and the free flow of goods and services and investments were inseparable.

Dr Rajan went on the say:

‘India is an important country for the UK and curbing the flow of good minds, whether they are students or skilled workers, cannot be good for the UK’.

This view was supported by Yashvardhan Kumar Sinha, the recently appointed Indian High Commissioner to the UK who commented that the issue of visas is not going to go away, and expressed concerns on the UK’s restrictions on Indian students and IT professionals under the Points Based System.

Such proclamations were echoed by Alexander Downer, the Australian High Commissioner to the UK and former Foreign Minister of Australia. Alexander Downer told BBC Radio 4  listeners during an interviewer, that:

‘We want to see greater access for Australian business people working in the UK and that’s often been a part of the free-trade negotiations-it hasn’t always been that way, but it’s often been a part of our free trade negotiations’.

Adding:

‘For example, an Australian company that invests in the UK might want to bring some of its executives to the UK. That can be done now with what are called tier two visas, but could be made a little bit easier’.

Given the views openly expressed by Indian and Australian government representatives, can Theresa May maintain tight immigration controls in keeping with her reign as Home Secretary? Or will India and Australia bide their time until they secure beneficial terms on the lifting of visa restrictions? If visa restrictions are relaxed for some overseas nationals, this may be seen to compromise to the UK’s ability to determine its own immigration policy in the way that ‘Brexiters’ did not envisage. In fact, some Brexiters may feel betrayed if immigration increases rather than falls. EU nationals living in the UK may also feel betrayed if, having paid the price of Brexit, they too were to see an increase in immigration.

Conclusion

Brexit has proven to be a complex outcome based of the premise of greater self-determination and immigration controls for EU nationals. And though there is an element of crystal ball gazing, there is a strong reason to believe that, post-Brexit, the UK may have less sovereignty and greater immigration as a direct result of trade deals with countries outside of the EU. Immigration has many benefits for the UK, but without proper debate and understanding about the possible consequences of Brexit on trade, sovereignty and immigration, we may unwittingly see continued resentment towards those who travel to the UK from overseas.

 

Written by:

Carla Thomas – Managing Director at Thomas Chase immigration.

Call to Action:

Contact Thomas Chase Immigration for an immigration consultation or assistance with an immigration matter. We offer immigration solutions to businesses, individuals and families by looking at the bigger picture to get the right solution

Statement of Changes: 28-day grace period

Statement of Changes: 28-day grace period
The government recently announced changes to the Immigration Rules for immigration applications made on or after 24 November. Here, we take an in depth look at one of the announced changes – the 28-day  grace period.

The Statement of Changes

On 3 November, the government announced the Statement of Changes to the Immigration Rules (HC 667). There is also an Explanatory note.

The changes mainly sought to implement the Migration Advisory Committee’s (MAC) recommendations into the Tier 2 immigration categories. Having studied the report by MAC, it is fair to say that many of the contents of the Statement of Changes were as expected. See my earlier blog on the recent immigration changes.

Yet, there was one change to the Immigration Rules that was not anticipated. That is, the 28-day grace period.

Background to the 28 days’ grace period

Where a person remains in the United Kingdom (UK) beyond the expiry of their visa, they will be deemed to have ‘overstayed’ their leave and could be subject to removal directions.

What happens if the individual submits an in-time application to UK Visas and Immigration (UKVI) to extend or vary their leave, but fails to receive an immigration outcome prior to the end of the visa?

Due to an amendment to the Immigration Act 1971 referred to as ‘section 3C leave’ that individual will be prevented from becoming an overstayer whilst they are awaiting a decision on an in-time application.

Therefore, a person will have section 3C leave if:

  • They have limited leave to enter or remain in the UK
  • They apply to UKVI for variation of that leave
  • The application for variation of leave is made before the leave expires
  • The leave expires without the application for variation having been decided
  • The application for variation is neither decided nor withdrawn

(This applies to appeals also but subsequent changes to the law has complicated this area and is a matter for another blog).

In October 2012, a ’28-day grace period’ for all visa applicants was introduced. Whilst not a concession, it was a tool that allowed UKVI to disregard a very limited period of overstaying by the applicant where the application was submitted 28 days from the expiry of the visa.

In those circumstances, the UKVI caseworker would be allowed to go on and consider the application under the immigration rules.

Where an application to extend or vary leave is made out-of-time, section 3c leave will not apply. The 28-day grace period has therefore been helpful in preventing out-of-time applications from being completely disregarded due to innocent mistake or exceptional occurrence; an approach that was confirmed by the Upper tribunal in December 2015 in the case of R (on the application of Bhudia) v Secretary of State for the Home Department.

What has changed?

As of 23 November, the 28-day grace period will no longer apply as the government believes it to be inconsistent with their overall message of strict compliance with the UK’s immigration laws.

In a  Written Ministerial Statement to announce the Statement of Changes, the Minister for Immigration, Robert Goodwill, summarised the amendments and added:

‘We are also abolishing the ‘28-day grace period’, during which we currently accept out of time applications for a range of routes including work and study, to encourage greater compliance with the Immigration Rules. This will make clear that people must comply with the Rules and make any application for further leave before their current leave expires’.

What does this mean?

Immigration applications to extend or vary leave should always be submitted in advance of the expiry of the visa – that has not changed.

For individuals making an out-of-time application because of exceptional circumstances, the lack of a grace period would be extremely harsh.

Perhaps, for this reason, the government did not abolish the grace period altogether but instead reduced the 28-day period to within 14 days of the expiry of the visa.

As such, UKVI can disregard this limited period of overstaying if the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative.

In addition, where an individual who has had their leave extended by section 3C leave, the 28-day period is to be reduced to 14 days from the expiry of any leave extended by section 3C.

Conclusion

The recent Statement of Changes introduced a number of changes to the Immigration Rules that will apply from 24 November. One such change includes the 28 days’ grace period being reduced to14 days, a measure introduced by the government to encourage compliance with immigrant laws. Regardless, of the grace period, individuals should adhere to the number one immigration rule: do not overstay your visa! Submitting an application to UKVI to extend or vary leave within the validity of the visa can prevent adverse consequences and help to protect an individual’s immigration status. Nevertheless, where there are exceptional reasons for submitting an out-of-time application on or after 24 November 2016, it is recommended that the application is submitted within 14 days from the expiry of the visa as the 28-day grace period will no longer apply.

For immigration advice or assistance, please feel free to contact us.

 

Brexit Latest: Brexit and Immigration

Brexit Latest: Brexit and Immigration
At the Conservative Party Conference in Birmingham on Sunday, Prime Minister Theresa May laid out her position on Brexit. Article 50, the formal mechanism for beginning exit negotiations from the European Union (EU), would be invoked by the end of March 2017.

During the negotiations, Mrs May said that immigration control, and not better trade deals, would be the priority. This was the strongest indication yet of a ‘hard Brexit’ approach, an approach that was reaffirmed by David Davis, the Brexit Secretary, who promised to not only control immigration but to ‘bring numbers down’ when he addressed the conference.

Yet, the hard Brexit approach has already began to cause some friction within in the Conservative party. There are those within (and outside) the party who would like to see the government adopt a ‘soft Brexit’ approach. One that would see access to the single market balanced with free movement of people.

Mrs May also proposed the repeal of the 1972 European Communities Act (ECA) which gives direct effect to all EU law, and spoke of the introduction of the ‘Great Repeal Bill’ which would enshrine ‘all’ EU law into UK law. She stated:

‘This historic bill, which will be included in the next Queen’s speech will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain will no longer apply from the date on which we formally leave the European Union’

Mrs May added;

‘Our laws will be made not in Brussels but in Westminster. The judges interpreting those laws will sit not in Luxembourg but in courts in this country. The authority of EU law in Britain will end’.

The Repeal Bill’s aim to enshrine all EU laws in UK law seems at odds with Mrs May’s stance on UK sovereignty. The likely aim of the bill to provide much needed assurances to the business sector that little will change immediately post-Brexit.  

Yet, this would still provide little comfort to businesses and UK universities uncertain about not only trade but still confused as to the long term impact to European employees, workforce and students.

In fact, little information was given to recent and longer term

EU residents in the UK. Mr Davis said that the UK, during negotiations, will protect the rights of EU citizens in the UK ‘so long as Britons in Europe are treated the same way’, suggesting that there is still some way to go before EU citizens gain clarity on their longer term status.

Aside from any deals yet to be negotiated, the likelihood is that post-Brexit, EU laws enshrined in law will be diluted and amended over time. Eventually, UK courts will need to interpret immigration laws in keeping with the will of Parliament and not Europe.

For those involved in immigration, we can only hope that vital safeguards are not lost altogether. We will watch this space closely to see how things progress.

 

Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business

“Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business” is locked Immigration Compliance Audit for HR and businesses: 3 ways an audit can help your business
For employers and HR professionals sponsoring Tier 2 highly skilled workers from overseas, compliance with immigration laws is crucial.

Immigration compliance does not stop with the initial identity checks made when a candidate starts their employment with a company. Rather, it is a continuing duty. In fact, to test whether employers or sponsors are complying with their continuing duty to prevent illegal working in the UK, UK Visas and Immigration (UKVI) may make announced and unannounced visits to the sponsor’s premises.

Most sponsors and HR professionals are conscientious and take their obligations very seriously as evidenced by the number of UKVI audits that take place without any significant issues.

Get things wrong, and sponsors can face a myriad of penalties including heavy fines of up to £20,000 per unlawful worker, damage to their reputation, the inability to employ their highly skilled overseas staff or hire new staff from overseas, possible closure of their premises for 48 hours and even worse, imprisonment.

What is an immigration compliance audit?

UKVI’s officers will visit a sponsor’s site or sites to confirm the following:

  • The sponsor can offer employment to overseas workers;
  • The information provided by the sponsor is accurate and up-to-date;
  • The company is genuine and lawfully operating in the UK;
  • The sponsor is able to comply with immigration laws and their sponsorship duties.

UKVI may do this by:

  • Reviewing the information held by the sponsor and contrasting this with the information provided in the online application for a sponsor licence;
  • Speaking with the overseas employees, their managers and recruitment managers;
  • Speaking with members responsible for overall day-to-day UKVI online reporting duties;
  • Reviewing the personnel files of overseas workers and sometimes spot-checking the files of resident workers to ensure that those workers have an entitlement to work in to the UK in the role recorded; and
  • Making an overall assessment of the sponsor’s HR systems, data held and record-keeping to meet their ongoing legal obligations.

It should be noted that sponsors are required to cooperate with UKVI during immigration audits.

During an immigration compliance audit with Thomas Chase Immigration, sponsors or those looking to become sponsors can expect the following:

  • Interviews to be conducted with key personnel identified in the online sponsor licence application;
  • A review of the sponsor’s processes and procedures against UKVI’s requirements;
  • A detailed review of sample files held for overseas workers to confirm best practices are being met;
  • Feedback followed by a written report of findings with recommendations to help the sponsor develop good or better systems.

Where necessary, the sample review of files may need to be widened.

3 Ways that an immigration compliance audit can help

So let’s put this into context by highlighting 3 key ways in which an immigration compliance audit with an immigration provider can help businesses.

  • Providing reassurance prior to an announced UKVI visit

An immigration compliance audit can a for an assist with the preparation of an announced UKVI audit by providing reassurance to sponsors and HR that their systems are appropriate and effective.

It is not uncommon for companies to request an audit to flesh out any internal issues and assess any training gaps.

When conducting an audit at one company, it became very clear that the imminent departure of one the senior members of the HR department would leave a huge gap in knowledge. However, to avert this, training sessions on areas such as right to work checks and the Resident Labour Market Test were arranged.

Training, coupled with ongoing support and advice helped the HR department continue to meet its ongoing obligations and demonstrates a clear example of how an audit can pinpoint things that have not yet surfaced.

Also, in few circumstances, I’ve found that sponsors have utilised the audit to review their working relationship with an immigration provider or get a feel for them before contracting their services again in future.

Applying for a sponsor licence

As stated above, UKVI may visit the sponsor at their site as part of the application consideration process for a sponsor licence. To ensure success, it is important to understand who will manage sponsorship of overseas workers within the company to enhance the success of an application.

An audit can reveal if the right roles, such as that of an authorising officer, have been assigned to the most suitable personnel. It can also highlight whether the company has effective HR systems for monitoring their future employees’ immigration status.

Not only that, but following an audit by an immigration provider and proving any recommendations are followed, the company should feel relatively confident ahead of any UKVI audit or queries.

Ensuring consistency across various UK branches

Managing various company branches can be difficult enough regardless if the company has grown organically or merged or acquired other sites.

An immigration compliance audit can identify any gaps in processes and assess whether key changes have been reported in the proper manner.

In one instance, I worked with a university that had joined forces with two other education establishments to form one entity. As you can imagine, this lead to significant restructuring and downsizing of the HR department, with one site taking most of the responsibility for the other sites due on their immigration experience.

This was seen as a good financial and strategic move by the university, but left the HR department at the main site overwhelmed by their additional personnel and immigration obligations.

An immigration compliance audit was secured and revealed that the main site’s processes and procedures were effective, probably because of the ongoing support and systems that we had developed. The other sites had decent systems but gaps were identified for various reasons as well as an incompatibility with the HR systems.  It was reasonable straightforward to suggest a plan of action in the debriefing to address the issues identified; develop consistent systems for monitoring future employees’ immigration status across the 3 sites and schedule dates to meet and track progress.

And…

There is another reason. Having proper HR systems and procedures in place, can provide protection by way of a statutory defence, should a sponsor unwittingly find that an unlawful worker has been hired.

Conclusion

Hopefully, the above points have shown the benefits of securing an immigration compliance audit for sponsors or businesses looking to become sponsors of overseas workers.

Immigration audits can be carried out by UKVI officers at any time in the sponsoring process, be in at the application stage or after a sponsor licence has been in place for a long time. By getting an audit, a sponsor can gain clarity of the extent to which their HR processes and systems is helping them meet their continuing obligation of preventing illegal working or identity areas to address. Be it, applying for a sponsor licence, checking compliance across various sites, seeking help before an announced visit or just seeking assurance, an immigration compliance audit has many benefits. By securing an immigration compliance audit, and following the recommendations, sponsors can focus on what they do best, providing their customers with great products and services.

The Latest on Right to Work Checks and Illegal Workers

Thomas Chase Immigration - St Paul's
On 12 July, the Home Office published updated guidance for employers to following the commencement of illegal working provisions.

The law on preventing illegal working is set out in sections 15 to 25 of the Immigration, Asylum and Nationality Act 2006 (the 2006 Act) and sections 24 and 24B of the Immigration Act 1971. On 12 July 2016, sections 34 and 35 of the Immigration Act 2016 (the 2016 Act) were commenced.

Section 34 of the 2016 Act amends the Immigration Act 1971 by inserting a new offence of illegal working (section 24B). Section 35 amends section 21 of the 2006 Act sets out the criminal offence of employing a worker with no legal entitlement to do so in the UK.

Background

Employers continue to have a duty to prevent illegal working in the UK. Employers are expected to do so by carrying out prescribed document checks on candidates before employing them to ensure they are lawfully allowed to work. For employees with time-limited permission to work in the UK, employers are expected to carry out more regular and time appropriate checks. See my earlier article on right to work document checks: Click hereBy adhering to the prescribed right to work checks, an employer will have a statutory excuse and may not have to pay a civil penalty should they be found to have employed an illegal worker.

Illegal workers include but are not limited to:

  • Students with expired visas, or students working more hours than they’re allowed to
  • People who work on a visitor’s visa
  • Those carrying out roles and functions not listed on their visa

The offence of illegal working is detailed as follows:

With effect from 12 July 2016, under section 24B of the 1971 Act (as inserted by section 34 of the 2016 Act), a person commits the offence of illegal working if he is:

  • Subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
  • At the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:

  • He has not been granted leave to enter or remain in the UK; or
  • His leave to enter or remain in the UK:
    • is invalid
    • has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time, or otherwise), or
    • is subject to a condition preventing the person from doing work of that kind.

What does this actually mean in practice?

An employer may commit the offence of employing an illegal worker if they employ a person who does not have permission to work in the UK and, more importantly, the employer knows or has reasonable cause to believe that the person has no right to do the work in question.

As a result, the employer can no longer evade prosecution where the investigating body cannot prove that the employer knew that the employee had no permission to work. The amended offence enables employers to be prosecuted where they have reasonable cause to believe that the employee could not undertake the employment, even where they have perhaps deliberately ignored information or circumstances that would have caused the employer to know that the employee lacked permission to work.

The new offence attempts to close some loopholes that existed. Further, the provisions no longer apply to employees only, but also to apprenticeships and the self-employed.

Penalties

Employers suspected of employing an illegal worker will be issued with a ‘referral notice’ informing them that:

  • The matter is being considered
  • Outlining the possible penalties. That is an unlimited fine (also known as a ‘civil penalty’) for each illegal worker

An employer may avoid a fine where they can demonstrate that they carried out the correct right to work checks. This highlights again how important it is for employers to not only make proper checks but also to retain records of those right to work checks.

Once the matter has been investigated and the employer is found to be liable for employing an illegal worker, the employer may be served with a civil penalty. The employer will then be given 28 days to respond, make payment as detailed in the notice or lodge an appeal. Not only that, but the employer may find their business details and results of the civil penalty notice made public.

For the individual concerned, should they be found to have worked without permission, their wages can be seized as if it were the proceeds of crime and they may face imprisonment and removal from the UK.

Conclusion

It cannot be stressed enough the need for businesses to seek immigration advice at the earliest to ensure that they are meeting (or continuing to meet) their legal obligations when employing workers. If done properly, employers can get on with their primary concern, running and growing their business. Fail to carry out correct right to work checks and an employer can find themselves facing severe penalties, including crippling fines, imprisonment and possible reputational damage. Given the penalties and government’s appetite for managing immigration issues, the costs of securing legal advice to ensure compliance far outweigh the risks of employing an illegal worker.

7 Changes to Tier 2 That You Need To Be Aware Of

The UK Government recently announced fundamental changes to the Tier 2 categories.

In 2015, the government had commissioned the independent Migration Advisory Committee (MAC) to review the Tier 2 immigration categories. The MAC were specifically requested to advise on how to make the Tier 2 criteria more robust yet flexible enough to allow key skills shortages to be met within the UK.

Having considered MAC’s recommendations and in March 2016 announced key changes to Tier 2.

Here are 7 changes that HR professionals need to be aware of:

  1. Tier 2 (General) threshold to increase

From the autumn 2016, the Tier 2 (General) salary thresholds for experienced workers will be increased to £25,000 per annum. A further increase of £5,000 to £30,000 will apply from April 2017 onwards. The Government announced that some health and education professionals will be exempt from the higher threshold until July 2019. The minimum threshold of £20,800 for new entrants will be maintained.

Nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin will be exempt from the new salary threshold.nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin from the new salary threshold.

  1. Tier 2 ICT salary threshold

From autumn 2016, the minimum salary threshold for the Tier 2 ICT Short Term category will be £30,000 per annum. Tier 2 ICT Graduates will see the salary threshold decrease from £24,800 to £23,000 per annum.

For those Tier 2 ICT transferees looking to reside and work in the UK for between 5 and 9 and who are classed as higher earners, will see the annual salary threshold requirement fall from £155,300 to £120,000.

  1. Changes to Tier 2 ICT categories

The current intra-company transfer (ICT) provisions will be simplified by requiring all intra-company transferees to qualify under a single visa category. From autumn 2016, the Tier 2 ICT Skills Transfer category will no longer be available to new applicants. From April 2017, the Tier 2 ICT Short Term visa route will also be closed to new applicants. This will no doubt present problems for larger companies that currently transfer overseas employees to the UK to gain or impart knowledge for the benefit of the wider organization.

  1. Immigration Health Surcharge

Currently, the Immigration Health Surcharge (IHS) applies to the Tier 2 (General) category and not Tier 2 ICTs. This will change from autumn 2016, when all Tier 2 ICTs will be required to pay the IHS.

  1. Tier 2 ICT pre-qualifying period

At present, all Tier 2 ICTs must have been employed within the company for 12 months prior to the UK assignment. From April 2017, this requirement will be removed for all Tier 2 ICT applicants in receipt of over £73,900 per annum.

  1. Immigration Skills Charge

The Government recognizes that there is immediate skills gap in the UK particularly in some sectors on one hand. On the other hand, the Government wants The The to ‘incentivize’ businesses to reduce their reliance on overseas workers and instead invest in training and up-skilling UK workers. To help achieve this, an Immigration Skills Charge will be levied on Tier 2 sponsors at the sum of £1,000 per Certificate of Sponsorship issued per year.

Such a sum will prove eye watering to many employers especially small A reduced rate of £364 will apply to small and charitable sponsors, as defined by Immigration and Nationality (Fees) Regulations. PhD level occupations, the Intra Company Transfer Graduate Trainee category, and those switching from a Tier 4 student visa to a Tier 2 visa will be exempt.businesses. Therefore, a reduced rate of £364 will apply to small and charitable sponsors.

Exemptions will apply to PhD level occupations, Tier 2 ICT Graduate Trainees, and applicants switching from Tier 4 student visas to a Tier 2 visa.A reduced rate of £364 will apply to small and charitable sponsors, as defined by Immigration and Nationality (Fees) Regulations. PhD level occupations, the Intra Company Transfer Graduate Trainee category, and those switching from a Tier 4 student visa to a Tier 2 visa will be exempt.

  1. Nurses

Fortunately, nurses will remain on the Shortage Occupation List, but employers will need to carry out a resident labour market test before recruiting a non-EEA nurse.

Fortunately, nurses will remain on the Shortage Occupation List.  That said, HR professionals and employers will need to carry out a resident labour market test before recruiting a nurse from outside of the UK and EU.

What hasn’t changed?

With so many changes to the Tier 2 provisions, HR professionals and businesses may be pleased to hear that they may continue to recruit non-EEA graduates from UK universities without having to first conduct a resident labour market and without being subject to the annual limit on Tier 2 (General) places.

Further, Tier 2 (General) places will remain at 20,700 places per year.

Contact Thomas Chase Immigration for more information of the changes to the Tier 2 category and how they may impact upon you and your business.

3 Simple Steps to Confident Right to Work Checks

Thomas Chase Immigration - Right to Work Checks
Right to Work checks can cause HR professionals and businesses no end of stress. Get it wrong and the Home Office can impose heavy (and sometimes crippling) fines or civil penalties of £20,000 per unlawfully employed person. A sponsor licence can be suspended and then there is the reputational damage and at worse, criminal convictions of up to 5 years for serious offenders.

As if that wasn’t bad enough, Immigration Officers have the power to effectively close business operations for up to 48 hours. It’s not uncommon for HR professionals to confess that they are absolutely scared of getting this wrong and that hiring nationals from outside of the UK and EU can cause a sense of nervousness.

Yet finding a fantastic applicant to fill a key skills gap is a cause for celebration. The fact that the applicant has signed the employment contract and turned up for their first day of work is credit to the company and should be the start of an amazing journey together between employer and potential employee.

So how can HR professionals feel confident about the Right to Work checks? I advise them to follow these 3 simple steps:

  1. Obtain
  2. Check
  3. Copy and Retain.

Obtain

The key here is documents, documents, documents. Whilst the Home Office has placed a legal obligation on employers and HR professionals to check that the applicant has a right to legally work in the UK before the applicant starts working, the Home Office has also provided a list of original documents that it believes properly evidences such entitlements.

Those documents are partitioned into ‘Lists’ according to the current immigration status of the applicant.

List A Documents

Where an applicant has a permanent right to work in the UK, HR professionals may accept any documents from List A. The documents must be seen in their original format and must be obtained prior to the applicant starting their employment with the company.

As the applicant has a permanent right to reside and work in the UK, HR professionals will not need to conduct any further Right to Work checks for that applicant.

The company will have also established a continuous statutory excuse throughout that time. As a result, if for some reason, the applicant was later found not to have a permanent right to work in the UK, the employing company will have an excuse in law against liability for a civil penalty.

List A documents include:

1. A passport showing the holder, or a person named in the passport as the child of the holder, is a British citizen or a citizen of the UK and Colonies having the right of abode in the UK
2. A passport or national identity card showing the holder, or a person named in the passport as the child of the holder, is a national of a European Economic Area country or Switzerland
3. A Registration Certificate or Document Certifying Permanent Residence issued by the Home Office, to a national of a European Economic Area country or Switzerland
4. A Permanent Residence Card issued by the Home Office, to the family member of a national of a European Economic Area country or Switzerland
5. A current Biometric Immigration Document (Biometric Residence Permit) issued by the Home Office to the holder indicating that the person named is allowed to stay indefinitely in the UK, or has no time limit on their stay in the UK.
6. A current passport endorsed to show that the holder is exempt from immigration control, is allowed to stay indefinitely in the UK, has the right of abode in the UK, or has no time limit on their stay in the UK
7. A current Immigration Status Document issued by the Home Office to the holder with an endorsement indicating that the named person is allowed to stay indefinitely in the UK or has no time limit on their stay in the UK, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
8. A full birth or adoption certificate issued in the UK which includes the name(s) of at least one of the holder’s parents or adoptive parents, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
9. A birth or adoption certificate issued in the Channel Islands, the Isle of Man or Ireland, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer
10. A certificate of registration or naturalisation as a British citizen, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

List B Documents

Where an applicant has a limited right to work in the UK, List A documents will not be appropriate. Instead, HR professionals may accept documents within the List B class of documents. Again, the documents must be seen in their original format and accepted prior to the commencement of employment.

Follow-up Right to Work checks will be required due to the temporary nature of the applicant’s stay in the UK. Further checks will normally be required when the employee’s temporary permission to be in the UK has expired and been renewed.

Documents in this category are divided into 2 groups.

List B – Group 1

1. A current passport endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
2. A current Biometric Residence Permit endorsed to show that the holder is allowed to stay in the UK and is currently allowed to do the type of work in question
3. A current Residence Card (including an Accession Residence Card or a Derivative Residence Card) issued by the Home Office  to a non-European Economic Area national who is a family member of a national of a European Economic Area country or Switzerland or who has a derivative right of residence
4. A current Immigration Status Document containing a photograph issued by the Home Office to the holder with a valid endorsement indicating that the named person may stay in the UK, and is allowed to do the type of work in question, together with an official document giving the person’s permanent National Insurance number and their name issued by a Government agency or a previous employer

Here, HR professionals have a time-limited statutory excuse which expires when the employee’s permission to be in the UK expires. Follow-up checks will need to be carried out when the document evidencing their permission to work expires.

List B – Group 2

1. A Certificate of Application issued by the Home Office under regulation 17(3) or 18A (2) of the Immigration (European Economic Area) Regulations 2006, to a family member of a national of a European Economic Area country or Switzerland stating that the holder is permitted to take employment which is less than 6 months old together with a Positive Verification Notice from the Home Office Employer Checking Service.
2. An Application Registration Card issued by the Home Office stating that the holder is permitted to take the employment in question, together with a Positive Verification Notice from the Home Office Employer Checking Service.
3. A Positive Verification Notice issued by the Home Office Employer Checking Service to the employer or prospective employer, which indicates that the named person may stay in the UK and is permitted to do the work in question

For List B – Group 2, HR professionals have a time-limited statutory excuse against liability which expires 6 months from the date specified in the Positive Verification Notice. HR professionals should therefore carry out a follow-up check when this notice expires.

Check

Once the documents have been obtained, HR professionals must check that the documents are:

  • Genuine; and
  • The applicant presenting the documents  is the rightful holder; and
  • The applicant is allowed to do the type of work detailed in their employment contract and Certificate of Sponsorship, where applicable.

It’s worth noting that the Home Office do not expect HR professionals to be forgery or immigration experts. However, there are some common sense questions that HR professionals should ask themselves when checking documents:

1. Does the photograph on the document match the appearance of the person before you? For instance, the document may be genuine but the applicant in front of you may not be entitled to it.
2. Does the document appear to be genuine? Does it appear to have been tampered with? Again, expertise in forgery is not necessary but you will be amazed at the spelling mistakes some forgers make with the names of countries and the word ‘Embassy’.

For some EU documents that differ from one European country to the next, it can be difficult to determine which document is genuine and which is not? If presented with an EU document and you are not sure if it is genuine, I recommend making a quick visit to PRADO – Public Register of Authentic travel and identity Documents Online at http://www.consilium.europa.eu/prado/en/prado-start-page.html which is a great source of information in such instances.

3. Is the date of birth consistent with the appearance of the person in front of you? If not, further documents may need to be provided.
4. Does the applicant still have valid leave to be in the UK? If the document evidencing their leave has expired, evidence should be sought and verified to establish if an application has been submitted to the Home Office for further leave to stay in the UK.
5. Are there any work restrictions on the applicant’s ability to carry out the work stated in their employment contract? For instance, some students may take up employment though there may be restrictions placed on term-time employment.
6. Still have doubts? Have you checked the reasons for any differences in names across documents? Such doubts need to be handled with care so as to prevent the employer/ employee relationship getting off to a bad start. There may be a plausible explanation for discrepancies which can be reasonably addressed by way of, for instance, inspection of an original marriage certificate, divorce decree, deed poll. If so, supporting documents will need to be photocopied and a copy kept on file.

Copy and Retain

The applicant has provided their documents, the documents appear to be in order and the applicant has valid leave to be in the UK and can perform the duties required.

The final step to key. In order to demonstrate that the Right to Work checks have been properly carried out and prevent and liability against a civil penalty, HR professionals are advised to photocopy and retain the documents. This administrative area is where companies tend to fall short in their immigration responsibilities.

When photocopying documents, it is advisable to make a clear copy of each document. The copy should be one that cannot be altered and there needs to be a note made of date that the checks took place.

The copy of the document will need to be obtained in the personnel files either electronically or in hard copy.

For passports, HR professionals need not photocopy the whole documents, just the pages which contain details of the document expiry date, nationality, date of birth, signature, leave expiry date, biometric details and photograph, information showing the applicant’s entitlement to be in the UK and ability to undertake the work detailed in the employment contract. For other documents, it may be necessary to copy the document in full. For example, both sides of a Biometric Residence Permit and Marriage Certificate demonstrating a change in name.

Conclusion

By taking the above steps of Obtain, Check, Copy and Retain, HR professionals should find Right to Work checks to be less complex and less difficult to carry out. If in doubt, seek expert immigration advice!

Written by Carla Thomas – Managing Director at Thomas Chase immigration. Thomas Chase Immigration offer immigration help to individuals and families.

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