Immigration up to date (August 2019)

In this briefing our Immigration team provides an update on the Prime Minister's announcement about a shake-up of the Immigration Rules and sets out the main changes to the Tier 2 policy guidance and the Appendix D guidance for sponsors. 

EU Settlement Scheme

The Home Office has confirmed that free movement will end on 31 October 2019 when the UK leaves the EU, regardless of whether we leave with or without a deal. In a "no-deal" scenario, EU citizens who wish stay in the UK should ensure that they and their families are living in the UK by 31 October 2019. They will then have until at least 31 December 2020 to make their application under the EU Settlement Scheme, for settled status or pre-settled status (as applicable). 

If the UK leaves the EU without a deal on 31 October, EU citizens will still be entitled to visit the UK for holidays and short trips, but the current arrangements for EU migrants who want to come to the UK for longer periods to work or study are not clear. We expect the Government to produce more information about their plans in the coming months and will provide updates when further information become available. 

Minimum salary threshold for visa applicants

The Centre for Social Justice (CSJ) (co-founded by Iain Duncan Smith) has called for the Home Secretary to increase the minimum salary threshold for all migrant workers (including EU migrants) to at least £36,700 post-Brexit. The CSJ suggest that increasing the threshold will mean that it will correspond to the status of "skilled" work but also recommended that this threshold should not apply to those who carry out a strategically important role e.g. NHS workers. 

The Home Secretary has instructed the Migrant Advisory Committee to consider the salary threshold levels for the future Immigration System, with the report expected to be published in January 2020. We will keep you up to date of any further developments on this topic in the meantime. 

Scientists

The Prime Minister recently announced plans to work together with scientists to develop a new fast-track visa route for elite specialists in science, engineering and technology. The options that may be discussed with leading institutions and universities are:

• removing the cap on numbers in the Tier 1 Exceptional Talent category 
• increasing the number of UK research institutions and universities able to endorse candidates
• creating criteria that confer automatic endorsement subject to immigration checks
• giving dependents full access to the labour market
• removing the need to hold an offer of employment before arriving
• accelerating the path to settlement

Whilst this is an effort to encourage scientists and other elite researchers to continue to come and work in the UK post-Brexit, the plans have been criticised by some who have noted that the low numbers of scientists coming to the UK under a Tier 1 Exceptional Talent visa means that the cap has never been reached and that the Tier 2 shortage occupation list already allows scientists to fast-track through the UK's Immigration system. It appears this may be the first step in the Prime Minister's plan to "shake up" the UK's immigration system and employers should ensure that they stay up-to-date with any changes to the Immigration Rules as they occur. 

Updates to Appendix D: record keeping guidance for sponsors

The Home Office has produced an updated guidance note for sponsors regarding their duties in relation to record keeping. The key changes are:

• Employers should ensure that they check for evidence of the date that the migrant entered the UK to ensure the validity of their Tier 2, Tier 4 or Tier 5 visa. Employers should ensure that the migrant's 'valid from' date on their visa is not in the future – if it is, the migrant will not have permission to work and should be advised to leave the Common Travel Area and re-enter the UK within the validity of their visa. 
• If a migrant does not have an entry stamp because they are a national of a country which is eligible to use the automated ePassport Gates, employers should ask for evidence of the date that the migrant entered the UK e.g. in the form of travel tickets or boarding passes. This evidence should be checked but does not have to be retained. We would suggest, however, that a copy of the data is retained and that the date of the check and who undertook it is recorded.
• If the migrant is entering the country without a visa under the Tier 5 creative and sporting visa concession, they must see an immigration officer on arrival and receive an entry stamp to show that they have been given leave to enter with permission to work. If the migrant used the eGates, they will not have permission to work and should leave the Common Travel Area and seek re-entry to the UK via an immigration officer on arrival, to obtain permission to work in the UK.
• If a migrant entered the UK with a short-term biometric visa, they must collect their biometric residence permit upon arrival. Employers must make a copy of the migrant's biometric residence permit once the migrant has collected it. 
• When taking screenshots as evidence of an advertisement for the resident labour market test, employers now need to ensure it contains all of the following:
  • logo of the relevant government website hosting the job advertisement
  • URL
  • contents of the advert
  • date the vacancy was first advertised
  • closing date for applications
  • for jobs advertised on Find a Job, the vacancy reference number (if one exists)
  • for jobs advertised on Universal Jobmatch (the Jobcentre Plus service in place for jobs advertised before 14 May 2018) , the Job ID number
  • for jobs advertised on Jobcentre Online (for Northern Ireland vacancies), the Job Reference number.

Employers should ensure that they familiarise themselves with the changes to the guidance to ensure that the correct right to work checks are being completed and that the requisite documents are being copied and retained by the sponsoring employer.

Updates to the Tier 2 policy guidance

The main update in this guidance is a reminder that certificates of sponsorship (CoS) which are granted for less than 3 months are not subject to the Tier 2 cooling-off period. This means that migrants can enter the country for multiple short stays within any 12 month period, provided that each CoS is granted for 3 months or less. All other aspects of Tier 2 apply, however, and this is unlikely to be a pragmatic approach for someone working in the UK frequently.