In recent weeks, the use of intra‑company transfers (ICTs) for allowing overseas migrants to work in the UK has hit the headlines, in part due to the coverage of Lloyds Bank’s use of Indian IT workers.
Pressure groups, such as the Professional Contractors’ Group (PCG), want the Home Office to tighten up on ICTs, which it claims are costing its members work. It wants ICTs to be subject to the same rules as those that apply to hiring non‑EU personnel through the normal points and permits regime. The PCG says it will present evidence of abuse to the Migration Advisory Committee.
The committee, which provides independent, evidence-based advice on immigration workers and permits, is due to produce a report on the scale of ICTs. The PCG claims about 30,000 IT workers, mainly from India, have entered the UK on ICT permits. It remains to be seen what the Home Office will do.
Q Legally, what is an ICT?
A An ICT is where an employee of a multi-national company is transferred by an overseas employer to a skilled job in a UK-based branch of the organisation.
Q What are the requirements for non-EU staff coming in on ICTs and how do they differ from others?
A The work permits system has been replaced recently by a points-based system (PBS). Migrants coming to the UK to start skilled employment do so within Tier 2 of the PBS. Tier 2 has a sub-category, with differing requirements, that applies to ICTs. All applicants under Tier 2 must have a sponsor. This will be the applicant’s prospective UK employer. The sponsor will issue a certificate of sponsorship, which will enable the applicant to proceed with their application.
An ICT differs from core Tier 2 applications in that employers do not need to satisfy the resident labour market test or show the position is on the shortage occupation list to employ the worker. The resident labour market test requires the employer to show that no worker who is a national of the European Economic Area (EEA) could be found to take the job and requires the job to be advertised according to the code of practice specific to the job and sector. The shortage occupation list is an official list of jobs that satisfy this test.
For an ICT, the requirement is that the employee has been working for the sponsor’s organisation anywhere in the world for at least six months prior to the transfer. All Tier 2 migrants are required to satisfy a points-based test that takes account of various factors.
But, crucially, ICTs differ in that the migrant does not need to satisfy the same English language skills criteria unless they are applying to extend their stay in the UK beyond three years.
Q How long do ICTs last for?
A ICTs can last for up to three years. Extensions are possible, subject to an ongoing certificate of sponsorship and satisfaction of the points‑based test. To stay beyond three years, the migrant will also have to satisfy the English language skills criteria.
Q The Indian IT company we outsource work to wants to bring over its staff for a year to work on-site here. What are the regulations? Do they need permits?
A The Indian workers are employees of the outsourcing company. It is the responsibility of that company to sponsor these migrants and comply with the ICT regulations set out above.
Q Are ICTs a route for employing lower‑ skilled, non‑EU migrants on low pay?
A One of the requirements when issuing a certificate of sponsorship is that the migrant is paid the appropriate salary rate for the job. The appropriate rate is not just an amount that the migrant is prepared to accept, but is set out in the various codes of conduct that govern different types of Tier 2 employment. For example, a senior IT support employee must be paid a minimum of £24,900. While this may still reflect savings for a company, the other costs associated with the process and the additional obligations placed on sponsors (which are outside the scope of this article) must be factored in.
If workers were paid less than the guidelines then the sponsor would be in breach of the immigration rules. Another certificate of sponsorship requirement is that the job be at S/NVQ3 skill level or above. This requires competencies that involve the application of knowledge in a broad range of varied work activities performed in a wide variety of contexts, most of which are complex and non‑routine. A company that strayed from this level, so as to transfer more lower-skilled workers on an ICT, would be in breach of the regulations.
Q What are the penalties for abusing the ICT regulations?
A It is the duty of a sponsor to comply with the immigration laws. In this context, it is necessary that the sponsor does not issue certificates of sponsorship to people that do not satisfy the issuing criteria. A sponsor could face being downgraded or removed from the register of sponsors if he/she acts in breach of the regulations and could face a fine of up to £10,000 per illegal worker employed, as well as prosecution.
Karen Macpherson, partner, DLA Piper