Changes to Tier 2 policy and how to survive a Home Office audit Changes to Tier 2 policy Surviving a Home Office audit On 14 March the Home Office published changes to the Immigration Rules that are all firmly aimed at helping business. Home Office audits are on the increase, largely as a result of increased compliance activity while licences are renewed. We will use the first part of this session to explain what those changes mean in practice. We will use the second part of this session to explain what to expect at a Home Office audit and how to prepare. Presenting: Presenting: Ian Robinson, Government Advisory Manager irobinson@fragomen.com Lee Bartlett, EMEA Compliance Manager lbartlett@fragomen.com Our presentation is necessarily brief and does not constitute legal advice in itself. Our advisers would be very happy to help you with any issues you would like to discuss. 2 Changes to Tier 2 Policy This presentation explains the Home Office’s most recent changes to economic migration and what they mean at each stage of the immigration process for new hires and assignees After entry and extension The visa application Changes that apply to all Tier 2 migrants New minimum salaries effect assignees and new hires at entry clearance and extension Salaries can now go down as well as up Changes for Tier 2 General Changes for Intra Company Transferees New rules for advertising Payslips no longer mandatory I will talk through: • What the changes mean for all Tier 2 migrants; • The changes to Tier 2 General policy; and • The changes to Intra-Company Transferee policy 4 Length of stay The Rules for length of stay are becoming increasingly complex New salary band for ILR from April 2018 No English language test at extension for high earners High earning ICTs can stay for nine years No cooling off period either for high earners The Home Office increased the minimum salary in each Tier 2 sub-category by 1.4% on 6 April Sub-Category Criteria Current threshold New threshold Tier 2 (General) Jobs which qualify for Tier 2 (General) £20,000 £20,300 Tier 2 (General) Jobs which are exempt from advertising in £70,000 Jobcentre Plus (or JobCentre Online if the job is based in Northern Ireland) £71,000 Tier 2 (General) Jobs which are exempt from the annual limit and the Resident Labour Market Test £152,100 Tier 2 (Intra-Company Transfer) Jobs which qualify for the Short Term Staff, £24,000 Skills Transfer or Graduate Trainee categories (maximum stay either six months or one year) £24,300 Tier 2 (Intra-Company Transfer) Jobs which qualify for the Long Term Staff category (maximum stay five years) £40,000 £40,600 Tier 2 (Intra-Company Transfer) Workers who can extend their stay in the UK for up to nine years £150,000 £152,100 Tier 2 (General) and Tier 2 (Sportsperson) Earnings which qualify for settlement (those £35,000 (for settlement £35,500 (for settlement working in PhD-level or shortage occupations applications made on or applications made on or are exempt) after 6th April 2016) after 6th April 2018) £150,000 The minimum rate for particular jobs means that employers naturally exceed most of these salary bands. However, remember that you now need to pay £40,600 if you are sending e.g. a software programmer to the UK for over a year. 5 New entrant definition The new Rules The old Rules Minimum salaries for every specific Tier 2 job have also been revised and a ‘new entrant’ category has been introduced to the rules 6 Minimum salaries • At present a minimum salary is set for every occupation that can qualify for a Tier 2 visa. • This is set at the 25th percentile in UK pay distributions for the occupation. Interaction with sub-category salary • An employer must pay at least the going rate for the job or the minimum rate for the sub category, whichever is higher. Experienced workers • The Home Office has revised salaries for experienced workers, bringing them in line with current pay distributions. • Some salaries have gone up, others have gone down. New entrants • A lower salary has been implemented for new entrants, set at the 10 th percentile. • However, at the point a person extends beyond three years they will need to be paid the higher salary. • graduates switching from Tier 4 into Tier 2 under our post-study provisions • graduate recruits where the employer has used a university “milkround” to satisfy the Resident Labour Market Test • those sponsored in the Intra-Company Transfer Graduate Trainee route • anyone aged 25 or under on the date of their initial Tier 2 application The Home Office has also changed the Rules to allow salaries to fall below that stated on the CoS, but not below minimum rates 7 This is a very helpful change • Previously, a change of employment application, and possibly an RLMT, is needed if a migrant‟s salary drops below the rate on the CoS. • This will still be needed if the salary falls below the minimum rate for the job or the Tier 2 sub-category. The change means • A change of employment and RLMT will not be needed if an assignee or employee‟s remuneration drops because for instance: • They move to a local contract; • They lose schooling allowance when a child turns 16; or • They move to a part time contract e.g. after maternity leave – any reductions in hours will need to be reported to the Home Office. • So long as they continue to be paid above the minimum rate. How long a particular person can stay can now seem complex Notes 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 Remember that the cooling off period will normally prevent re-entry for 12 months from the point a person‟s leave ends or they can demonstrate that they left the UK. The only exemptions are for high earners and a small number of migrants who previously held leave in an old or short term ICT category and are moving to the ICT Long Term (ICT LT) visa. References to „Tier 2 worker enters [before a given date]‟ refer to those who were granted leave to enter the UK under the Rules in place since 6 April 2011. Remember that the cooling off period will normally still apply after a person leaves… Scenario 1: Tier 2 worker enters before 6 April 2011 • Those who were granted leave under Tier 2 and Work Permit policy in place before 6 April 2011 will not be subject to the salary threshold or exclusion period. • Are granted an initial three years, may extend for three. • Can apply for ILR after five years or extend in three year blocks. Tier 2 General Scenario 2: Tier 2 worker enters on or after 6 April 2011 • Are granted in initial three years, may extend for three more. • ILR application after five years, must be paid £35k or more. • If ILR fails (for any reason) migrant is prevented from entry in Tier 2 for one year from the point their leave expires or they leave. Scenario 3: Tier 2 worker enters after 6 April 2013 • Policy expected to apply in same way as scenario 2. • However, salary threshold likely to be higher than £35,000. Tier 2 ICT LT Scenario 4: Tier 2 worker enters after 6 April 2011 and leaves after e.g. two years • Employers will need to cancel the individual‟s CoS. • They will then be prevented form re-entry for a year from the point their leave was curtailed or they leave. 2008 2009 2010 2011 2014 2015 2016 2017 2018 2019 2020 2021 An ICT granted under the Rules in place before 5 April 2010 can apply for settlement after five years. Those granted under the Rules in place between 6 April 2010 and 5 April 2011 can extend beyond five years in two year blocks. Long Term ICTs granted under the Rules in place since 6 April 2011 can normally only stay for five years. After that point the exclusion period prevents re-entry in any Tier 2 category An ICT paid £150k+ can stay for nine years. Initial grants of leave 8 2012 2013 Extension of stay Cooling off period The advertising criteria for the Resident Labour Market has been simplified Type of medium Criteria for suitable media Newspaper Must be: • marketed throughout the UK or throughout the whole of the devolved nation in which the job is located, and • published at least once a week Professional journal Must be: • available nationally through retail outlets or through subscription, • published at least once a month, and • related to the nature of the job i.e. a relevant trade journal, official journal of a professional occupational body, or subject-specific publication Website Must be one of the following: • an online version of a newspaper or professional journal which would satisfy the criteria above, • the website of a prominent professional or recruitment organisation, which does not charge a fee to jobseekers to view job advertisements or to apply for jobs via those advertisements, or • the Sponsor‟s own website This new advertising criteria makes sense and will help sponsors perform the Resident Labour Market Test. You should nevertheless note that: • Previously, jobs paying over £70,000 only need to be advertised in one location. For recruitment campaigns beginning since 6 April it will be two locations. • You cannot rely on advertising on websites that charge job seekers a fee to view job advertisements or to apply for jobs via those advertisements 9 This new advertising criteria is helpful but coupled with changes in minimum salary bands it can all seem complicated A vacancy needs to be filled and the employer realises or expects that they will need to sponsor a non-EU worker The job The advert Suitable resident test? Pays over £152,100 No advertisement needed for the RLMT No Is a shortage occupation No advertisement needed for the RLMT No Pays over £71,000 Must advertise in two locations (JobCentre Plus not mandatory) Yes unless switch from Tier 4 Is a new graduate position Must meet milkround requirements unless they held a Tier 4 visa and migrant completed a degree at a UK university Yes A Tier 2 job but does not fall in these categories Must advertise in JobCentre Plus and one other media for 28 days Yes These categories are not exhaustive and do not include e.g. Named Researchers. 10 CoS assigned before 6 April 2013: • Old minimum salaries and salary thresholds (e.g. £20,000), advertising criteria and shortage list apply 6 April 2013 There is a comprehensive and considered list of transitional arrangements Job advertised before 6 April 2013 but CoS assigned after: • New minimum salaries apply • Advertised salary does not need to meet the new rate (but the salary paid on the CoS must do so) • If advertising was previously required in only one medium, the post will not need to be re-advertised in a second medium • Uplift from £150,000 to £152,100 will not apply Job advertised from 6 April 2013: • All new criteria apply Extension and settlement applications from 6 April 2013: • All new criteria apply 11 11 The final Tier 2 changes will help high earning assignees and employees and will make the process go more smoothly for some ICTs • The cooling off period was removed for those paid over £152,100. • This means that the one year bar on re-entry in Tier 2 will not apply. • The English language requirement has been removed for IntraCompany Transferees paid £152,100. • This change is helpful for senior hires of any country that is not designated as English language speaking by the Home Office. • Finally, ICTs no longer need to provide pay slips with their applications for entry clearance. • However, the Home Office can still request them. • The 12 month experience requirement is not removed. • Employers should still keep copies of pay slips on file. 12 A new sub-category has been introduced for exceptional MBA graduates and PhD students have been given extra support 13 MBA graduates • A pot of 1,000 Graduate Entrepreneur visas is now available for exceptional MBA graduates. • UK Higher Education Institutions will endorse MBA graduates and they will be able to apply for a one year extension and extend for a further year before switching to Tier 1 or 2 • This route is best suited to entrepreneurial or job seeking MBA graduates. • Those with jobs are best moving to Tier 2, wherever possible. PhD students • PhD students can extend their stay for 12 months in Tier 4 after completing their studies. • They can use that time to set up a company or find work. • Once they have they need to switch to Tier 1 or 2. How to survive a Home Office audit Global Trends in Compliance • 15 Increased focus on compliance globally and emphasis on holding employers accountable. This change is taking three primary forms: 1. New Legislation 2. More restrictive interpretation of existing laws. 3. Increased focus on enforcement through site visits and audits. Compliance in the UK • Increased focus on Tier 2 Sponsors • More stringent government immigration controls • Increased risk of inadvertent violations • Subsequent civil penalties • Custom compliance strategies structured to serve our clients 16 Trends in Immigration Enforcement • Increased efforts to penalise non-compliant companies and individuals: • Introduction of more severe penalties for non-compliance • Greater emphasis on employer accountability • Increased frequency of worksite inspections • Negative publicity for non-compliant companies • Delays or denials of future applications • Fines, criminal prosecutions and imprisonment of HR Managers, Executives and Officers • Termination of right to do business in the UK for repeat violations 17 Format of Home Office audit • Interview with key personnel • Oversees worker file audit • Interview of sponsored and non-sponsored non-EEA workers 18 Focus on UK Immigration • 19 Five Areas: 1. Monitoring Immigration Status and Preventing Illegal Working 2. Maintaining Migrant Contact Details 3. Record Keeping 4. Migrant Tracking and Monitoring 5. Recruitment Practices and Professional Accreditations 1. Monitoring Immigration Status and Preventing Illegal Working • Employer retains copies of passports and immigration documents • Employer monitors expiry dates ands facilitates extensions where appropriate • Annual audit checks completed at 12-month intervals to ensure continued validity of visa and work permission 20 2. Maintaining Migrant Contact Details • Employer retains full contact details for all migrant workers • Employer demonstrates system for keeping contact details up to date (eg. PeopleSoft) 21 3. Record Keeping • Employer retains comprehensive employment records for each migrant, in line with HR good practice • Records should include: • 22 1. Employment contracts 2. Employer references 3. Qualifications 4. RLMT details Resident Labour Market Test, employers should retain: 1. Copies of advertising 2. List of applicants 3. Selection criteria 4. Interview notes 4. Migrant Tracking and Monitoring • Reporting Day 1 attendance • Reporting unauthorised absences from work • Reporting termination of employment • Reporting any significant change of circumstances, including: • Salary changes • Work location changes 23 5. Recruitment Practices and Professional Accreditations • Ensure professional accreditations checked before offer of employment • Retain copies of professional accreditations • Monitor expiry dates of professional accreditations 24 Fragomen Compliance Services • Audit Services • • • • • On-site Immigration Compliance Audit On-site Annual check of Right to Work Documents Attendance at Home Office audit Health Check Seminar/Training • Licence Renewals • SMS Updates 25 Questions?