Changes to Tier 2 policy and how to

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
Ian Robinson, Government Advisory Manager
[email protected]
Lee Bartlett, EMEA Compliance Manager
[email protected]
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.
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
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
Changes for Intra
Company Transferees
New rules for
Payslips no longer
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
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
Tier 2 (General)
Jobs which qualify for Tier 2 (General)
Tier 2 (General)
Jobs which are exempt from advertising in
Jobcentre Plus (or JobCentre Online if the job
is based in Northern Ireland)
Tier 2 (General)
Jobs which are exempt from the annual limit
and the Resident Labour Market Test
Tier 2 (Intra-Company
Jobs which qualify for the Short Term Staff,
Skills Transfer or Graduate Trainee categories
(maximum stay either six months or one year)
Tier 2 (Intra-Company
Jobs which qualify for the Long Term Staff
category (maximum stay five years)
Tier 2 (Intra-Company
Workers who can extend their
stay in the UK for up to nine years
Tier 2 (General) and Tier 2
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
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.
New entrant
The new
The old
Minimum salaries for every specific Tier 2 job have also been
revised and a ‘new entrant’ category has been introduced to
the rules
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
• An employer must pay at least the going rate for the job or the minimum rate
for the sub category, whichever is higher.
• 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
• 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
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
The change
• 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
2012 2013
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.
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
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
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
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
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
The job
The advert
Suitable resident
Pays over £152,100
No advertisement
needed for the RLMT
Is a shortage
No advertisement
needed for the RLMT
Pays over £71,000
Must advertise in two
locations (JobCentre
Plus not mandatory)
Yes unless
switch from
Tier 4
Is a new graduate
Must meet milkround
requirements unless
they held a Tier 4 visa
and migrant completed
a degree at a UK
A Tier 2 job but does
not fall in these
Must advertise in
JobCentre Plus and
one other media for 28
These categories are not exhaustive
and do not include e.g. Named
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
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
• All new criteria apply
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
• 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
• Employers should still
keep copies of pay slips
on file.
A new sub-category has been introduced for exceptional MBA
graduates and PhD students have been given extra support
MBA graduates
• A pot of 1,000 Graduate Entrepreneur visas is now available for exceptional MBA
• 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
Increased focus on compliance globally and emphasis on holding employers
accountable. This change is taking three primary forms:
New Legislation
More restrictive interpretation of existing laws.
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
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
Format of Home Office audit
Interview with key personnel
Oversees worker file audit
Interview of sponsored and non-sponsored non-EEA workers
Focus on UK Immigration
Five Areas:
Monitoring Immigration Status and Preventing Illegal Working
Maintaining Migrant Contact Details
Record Keeping
Migrant Tracking and Monitoring
Recruitment Practices and Professional Accreditations
1. Monitoring Immigration Status and Preventing Illegal
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
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.
3. Record Keeping
Employer retains comprehensive employment records for each migrant, in line
with HR good practice
Records should include:
Employment contracts
Employer references
RLMT details
Resident Labour Market Test, employers should retain:
Copies of advertising
List of applicants
Selection criteria
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
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
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
Licence Renewals
SMS Updates