Points-based immigration system: Change is a constant for migrant staff

Major changes to the points-based system were made recently – but what do they entail?

Since its implementation in November 2008, the UK Immigration Points-Based System (PBS) has had several teething problems.

On 7 August 2009, after months of lobbying, the UK Border Agency (UKBA) released amended guidance for sponsors. These changes go beyond the scope of the almost weekly changes and ‘fixes’ that employers and immigration lawyers have been getting used to.

The changes are, we are told, designed to provide a more practical and workable system for employers licensed to issue Certificates of Sponsorship (certificates) to migrants who are not nationals of an EEA (European Economic Area) State or Switzerland (migrants).

This article covers key changes – some restrictive, some enabling – made to the Tier 2 (General) and Intra Company Transfer (ICT) immigration categories.

Settled workers

The UKBA has confirmed that migrants must not, as a result of an ICT, directly replace a “settled worker”. This is a far-reaching restriction that is likely to lead to a decline in the number of ICT transfers.

Note that firstly the definition of “settled worker” is very broad and includes, in addition to UK nationals, nationals of EEA States and Switzerland; citizens of certain British overseas territories; Commonwealth citizens; and those with settled status under other UK immigration legislation. Secondly, “worker” is a broader definition than “employee”.

Time and money

The qualifying period for which migrants must have worked for a sponsoring organisation before being allowed to enter the UK to work has been amended to take account of periods of maternity, paternity or adoption leave.

The UKBA has recognised that short-term accommodation costs can very high by allowing (subject to certain conditions and for purposes of calculating points) up to 40% of the migrant’s gross salary to be paid in accommodation allowances.

There is no longer a requirement for a migrant’s salary to be paid in the UK.

The requirement to advertise jobs in Jobcentre Plus, as part of passing the Resident Labour Market Test, no longer applies to director, chief executive or legal partner roles, where the salary package is £130,000 or above, or where there will be stock exchange disclosure requirements. This ends the anomaly that saw FTSE 100 companies having to advertise senior roles in job centres.

Changes of employment

Where a migrant’s core duties and/or responsibilities change – for example through promotion – and they continue to work for the same sponsor, this will be treated as a change of employment. It has been clarified that in this situation, a new certificate needs to be issued and fresh leave will need to be obtained before the new job is commenced. However, increases in salary stated in a certificate will not necessitate a “change of employment action” if they are due to annual increments, bonuses or natural progression within the same job, provided that progression is not a promotion.

A temporary reduction in a migrant’s salary/working hours to avoid redundancies no longer requires a change of employment action if certain conditions are met.

It has also been clarified that certificates cannot be ‘re-used’. If the application for leave to enter fails, any new application will require a new certificate. And migrants cannot apply for initial leave more than three months in advance of the start date in the certificate.

Key points

Key points and recommendations for employers include the following:

  • Conduct ICT ‘audits’ on a case-by-case basis and at an early stage, to see if the more stringent ICT rules can be met.
  • If the new rules make it harder, or impossible, to bring overseas colleagues into the UK on an ICT, consider whether another immigration category is available – eg, the ‘highly skilled worker’ section of Tier 1.
  • Before changing employment terms of migrants, consider whether this will necessitate a change of employment action.

Edward Wanambwa, partner, CM Murray

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