Points-based immigration: legal Q&A

Later this year, the work permit scheme will be abolished and replaced by Tier 2 of the new points-based immigration system. The government has recently published further guidance in relation to Tier 2.

Q When will the new regime replacing the existing work permit scheme come into effect and what preparation should be undertaken by employers in the meantime?

A The new scheme is expected to come into operation in autumn this year. As employers must be registered as sponsors to issue certificates of sponsorship to migrants whom they wish to employ under the new scheme, employers should start the registration process as soon as possible.

As sponsors, employers will have to take on wide-ranging record keeping, reporting and compliance obligations. They therefore need to ensure they have appropriate HR procedures in place to enable them to comply with these obligations. For example, among other things, employers should:

• ensure they are carrying out the required pre-employment checks that employees have the legal right to work in the UK
• ensure that work permit holders' personnel files are up to date and that the UK Border Agency has been notified of any significant changes relating to any work permit holder
• ensure there are appropriate procedures for monitoring absence and for keeping employees' contact details up to date
• review and revise employment contracts to ensure they cover the new obligations and that employees consent to their personal data being passed to the immigration authorities.

Q Will sponsored migrants have to speak English, and are there any exceptions?

A Migrants applying under Tier 2 will need to prove they speak English. They must come from a country that is regarded as a majority English speaking country, or provide evidence they have a degree which was taught in English, or have passed an English language test. Employees transferring from an overseas group company to work in the UK company are initially exempt and do not need to prove they speak English until they apply for an extension to their leave after three years in the UK.

Q Who will employers be permitted to issue certificates of sponsorship to?

A Among other things, employers should only issue certificates of sponsorship if:

• the position being filled meets the skills requirements and is at level NVQ 3 or above
• the person will be paid a market-rate salary
• the person intends and is able to do the job in question. The sponsor should check the person has the necessary qualifications, experience and professional accreditations needed to carry out the job
• there is a genuine vacancy that cannot be filled by someone from the UK or the European Union
• the sponsor has, where required, carried out a resident labour market test by conducting an appropriate advertising process in accordance with the UK Border Agency's guidelines
• in the case of an intra-company transfer, the person has worked for the overseas group company for at least the last six months
• they are satisfied the person is likely to qualify, bearing in the mind the other Tier 2 requirements (see below), and that the person is likely to comply with their conditions of leave to remain in the UK.

Q Will sponsors have to advertise positions before issuing a certificate of sponsorship?

A In almost all cases, the position will need to be appropriately advertised. The main exceptions are if the person is being transferred from an overseas group company where they have worked for at least the last six months or if the person will fill a shortage occupation. Otherwise, even senior or highly paid positions will need to be advertised.

Q Are there any additional requirements the migrant needs to satisfy?

A Once the migrant has a certificate of sponsorship, they will need to apply for entry clearance before they come to the UK and will need to show they qualify for sufficient points under Tier 2. The majority of the points are awarded for attributes such as prospective earnings and qualifications and for the certificate of sponsorship. Ten points are awarded for English language and the remaining 10 are awarded if the migrant shows they have sufficient funds to maintain themselves and their dependants. To qualify, they will need to show they have at least £800 to maintain themselves and £533 for each dependant.