Latest UK Immigration Law Developments

by Morgan Lewis
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Employers in the UK should be aware of key legal developments, including a proposed increase to application fees and upcoming changes to the codes of practice.

Over the last few months there have been a number of developments impacting UK immigration law. This alert provides a roundup of the key issues employers need to be aware of.

Application Fees

UK visa application fees will increase from 6 April 2014. It has been proposed by the government that the majority of fees will increase by 4%. The most notable increase, however, will be for in-country dependant applications. Points-Based System dependants currently receive a 25% discount on application fees when they submit an application at the same time as the main applicant. The Home Office intends to remove this discount, meaning that application fees for families will significantly increase. This additional cost will particularly affect employers that sponsor migrants with dependants.

Visa Extensions

The Home Office has proposed an amendment to the Immigration Rules that will enable individuals to apply for entry clearance or leave to remain as a Tier 2 (General) or Tier 2 (Intra-Company Transfer [ICT]—Long Term Staff) migrant for a maximum of five years (the current maximum is three years). The Home Office may charge 20% more in application fees than the fee for making a three-year Tier 2 application. Further details are expected shortly.

Changes to Codes of Practice

On 6 April 2014, the Home Office intends to increase the salary rates set out in some of the current codes of practice, and it will publish further details shortly.

If employers were granted or are granted a Restricted Certificate of Sponsorship (RCoS) during the January, February, or March 2014 allocation periods, they should consider assigning it by 5 April 2014. If it is not assigned by this date, they will need to ensure that the salary is in line with the new revised salaries set out in the applicable code of practice.

Employers should also check whether there are migrants they need to sponsor who may not meet the new salary criteria from 6 April and consider whether they can assign certificates of sponsorship before 6 April.

If employers do not assign a certificate of sponsorship by this date, they will need to ensure that salaries are in line with the new revised salaries as of 6 April 2014 as set out in the codes of practice.

RCoS Timings for April, May, and June 2014

The application process for an RCoS works on a monthly cycle. Generally, on the 11th day of each month, the Home Office will decide how many applications it will approve; this is known as the “allocation date”. The table below shows how the allocation date will be adjusted for April 2014 and May 2014 to take into account the changes to the codes of practice.

Published Application Dates

Revised Application Dates

Original Monthly Allocation Date

Revised Monthly Allocation Date

6 March–5 April

6–16 April

11 April

18 April

6 April–5 May

17 April–5 May

12 May

No change

6 May–5 June

6 May–5 June

11 June

No change

Increased Financial Penalties

The Home Office has announced that, from 6 April 2014, the maximum civil penalty for employing unauthorised migrant workers will double from £10,000 to £20,000. The maximum penalty will apply to employers that repeatedly breach the prevention of illegal working rules. The Home Office has also published new guidance, which is available here.

Certain English Language Tests No Longer Accepted

The Home Office has announced that it will no longer accept English language tests administered by the Education Testing Service (ETS) to meet the English language requirement for UK visa applications.

Until further notice, the Home Office will no longer accept the following tests because of investigations into the tests’ security:

  • Test of English for International Communication
  • Test of English as a Foreign Language

Individuals who have pending applications that rely on one of these tests should take another English language test as soon as possible with another approved provider. A full list of Home Office–approved English language tests can be found here.

Tuberculosis Testing

The Home Office has increased the number of countries from which tuberculosis (TB) testing is a requirement for UK visa applications. An individual who wishes to apply for a visa to come to the UK for more than six months must now provide a valid TB test certificate from a Home Office–approved TB testing clinic with his or her application. A full list of countries subject to this requirement may be found here.

Applicants should arrange an appointment to take the TB test well in advance of submitting their visa application because of significant waiting times at some clinics.

Annual Allocation Requests

The Home Office is now contacting Tier 2 sponsors to remind them that they are required to request new annual allocations of unrestricted Tier 2 (General) and Tier 2 (ICT) certificates of sponsorship for the allocation year beginning 6 April 2014 and ending 5 April 2015.

The annual certificate allocations relate to the following:

  • Migrants who are already in the UK under Tier 2 (General) sponsorship and who may need to extend their Tier 2 (General) permission between 6 April 2014 and 5 April 2015
  • New hires from outside the European Economic Area (EEA) who are already in the UK and who may be recruited by Tier 2 (General) sponsors between 6 April 2014 and 5 April 2015 (e.g., those migrants already in Tier 1 post-study work of Tier 4 student categories)
  • New hires who are currently overseas and who will come to the UK to take a role with a salary of more than £152,100 between 6 April 2014 and 5 April 2015 (including extension applications for existing secondees)
  • The number of Tier 2 (ICT) secondees a sponsor is likely to require between 6 April 2014 and 5 April 2015

Tier 2 sponsors should consider their requirements for the next allocation year (beginning 6 April 2014 and ending 5 April 2015) now and submit requests for their new allocation of certificates as soon as possible to ensure that they are processed before 6 April 2014.

Charging for National Health Service

Following public consultation in 2013, the health surcharge for temporary migrants will be introduced by April 2015, subject to parliamentary approval. An annual levy of £150 for students and £220 for other non-EEA migrants will apply to all migrants entering the UK on Tier 4 student or Tier 2 work visas. Migrants must pay an initial charge at the time of application; however, the Home Office has not yet announced how the subsequent annual payments will be made. The annual surcharge will provide migrants with full access to the National Health Service (NHS).

Starting April 2015, visitors must also have medical insurance to cover the cost of emergency treatment; NHS emergency treatment is currently provided for free to all visitors.

New Overseas Waiver

The Home Office has introduced an electronic visa waiver for passport holders from Oman, Qatar, and the United Arab Emirates. The electronic visa waiver is available to those visiting the UK for tourism, business, or study purposes for less than six months. It is free and may be obtained by completing an online application form at least 48 hours before travel to the UK.

Individuals who intend to stay in the UK for more than six months or who wish to work in the UK must obtain the correct visa before travelling.

The Home Office intends to extend this scheme to passport holders from Kuwait later in 2014.

Bulgarian and Romanian Nationals

The working restrictions on Bulgarian and Romanian nationals have been lifted, and Bulgarians and Romanians now have unrestricted permission to enter and work in the UK.

Transitional immigration rules still remain for Croatian nationals, who will need permission to work in the UK.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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