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July 09, 2008
Overview:
Throughout 2008-2009, the United Kingdom will put into force
a new Points Based System and corporate registration process
for migrants that wish to work or study in the UK.
The Points Based System will divide all applicants into
one of five tiers, which are listed from one to five: highly
skilled migrants, investors and post-study work, intra-company
transfers and skilled workers, an allotted number of low skilled
workers to fill labor shortages, students, and youth mobility
and temporary workers. Tier 1 migrants do not need a sponsor,
but migrants in the Tier 2 – Tier 5 categories require a Certificate
of Sponsorship from a licensed sponsor. Each tier will be
introduced in phases, and we highlight certain features below.
Sponsor Registration:
In order to sponsor skilled workers and intra-company transferees,
businesses will need to register for a Sponsorship License
with the UK Border Agency (“UKBA”). Tiers 2 (Skilled Migrant)
and 5 (Temporary Workers and Youth Mobility) of the Points
Based System are likely to be implemented in November 2008.
Any companies that do not yet have a Sponsorship License or
companies with applications still pending when the new scheme
is enacted will not be able to sponsor employees for employment
authorization.
The application for a Sponsorship License can be made online at
http://www.ukba.homeoffice.gov.uk/employers/points/.
Employers have 10 days after submitting the application to
lodge the required supporting evidence. The license will not
be approved until the UKBA has conducted an audit of the employer’s
systems to ensure that they meet the criteria for sponsorship.
Employers are encouraged to start well in advance to allow
time for a pre-application audit to organize for the official
visit.
Only after the license has been approved can an employer
begin to grant Certificates of Sponsorship1
to employees. The employer will be responsible for collecting
work authorization documentation from the employee to keep
on file. The employer must maintain a complete record for
all foreign workers employed by them throughout the length
of their assignment.
Once a company is registered on the Register of Sponsors
its license will be valid for four years. At the time of registering
the sponsor must state how many Certificates of Sponsorship
are needed and may be called upon to justify their need through
the past numbers of work permits obtained. If, for example,
the employer requests 100 Certificates of Sponsorship but
later only uses 50 in a given year, the UKBA can then reduce
the number of Certificates that employer is allowed to issue.
Once an employee receives a Certificate of Sponsorship s/he
will undergo the usual entry clearance process in order to
enter the UK. The employee is required to report to work within
10 days of receiving their entry clearance visa.
Current and soon-to-be implemented Points Based System
categories:
Tier 1: (Replaces the Highly Skilled Migrant Programme “HSMP”)
Implementation began in February 2008 for applicants in
the UK and India and was completed as of June 30, 2008. Migrants
under Tier 1 do not need a sponsor. The HSMP criteria remain
largely the same. One of the largest impacts of the implementation
is to Working Holidaymakers2 who are no longer allowed to
change status in the UK to Tier 1, but must instead return
to their home country to process their entry clearance. Employers
should expect employees who have been Working Holidaymakers
to be out of the country for at least three weeks for this
entry clearance process. Notably, at the time of applying
for the entry clearance visa the applicant must show a minimum
bank account balance for the three months immediately preceding
the application in the sum of at least £2,800 (approximately
$5,500) with £1,600 required for each additional dependent.
Tier 2: (Skilled Workers)
Implementation is expected in November 2008. Employees are
to be assessed points based on qualifications, salary, English
language and whether the Resident Labor Market Test has been
met (or deemed met in the case of intra company transfers/shortage
occupations). The employee must earn a total of 70 points
to qualify. Of these 70 points, 50 points total will be assessed
for a combination of the employee’s qualifications, skilled
worker or intracompany transfer status and salary. The remaining
20 points will be assessed as 10 points for English language
ability and another 10 points for “maintenance.” The maintenance
test requires applicants to demonstrate that they have a minimum
of £800 (approximately $1,600) in funds. While applying for
the entry clearance visa, the employee will need to show that
the minimum £800 has been maintained in their bank account
for the three month period preceding the visa application.
The employee will also need to show a minimum of £500 for
each dependent that will accompany them to the UK.
Three categories of employees fall under Tier 2:
- Employees in shortage occupations as identified by the
Migration Advisory Committee;
- Employees whose jobs have passed the Resident Labour Market
Test (i.e. the employer has advertised the position and
was unable to fill it from within the EU); and
- Intra Company Transfers – employees that have been working
for an overseas affiliated company for at least 6 months.
Skilled workers will be required to speak English to the A1 scale of the Council of Europe, or demonstrate competency in English through alternate means such as having taken a degree program taught in English.
Employers will issue a Certificate of Sponsorship to eligible employees. The employee will then apply for an entry clearance visa. Work authorization under Tier 2 will be granted for up to three years with extensions available.
Compliance:
Employers are required to keep records proving each employee’s eligibility to work in the UK. This verification must be made before the employee begins to work. For each employee whose permission to stay in the UK is limited in time, his or her credentials must be verified each year.
The company must appoint an authorized user and a key contact responsible for the company’s immigration processes. Sponsors will be required to report and they will be rated according to their track record. Abuse of the system can lead to removal of a Sponsorship License. Negligent violations of the rules can lead to fines of up to £10,000 for the company or responsible company contact. Knowing violations of the system can result in up to two years in prison for the responsible employees and any managers who had knowledge.
Fees:
As part of these changes, the UK will implement an across-the-board increase in fees. The most significant fee increases apply to Tier 1 migrants.
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1While we
are still waiting for guidance from the Home Office, it appears
that the Certificate will not be a paper document but rather
a unique reference number issued to the employee which enables
them to apply for their entry clearance visa.
2The “Working Holidaymaker” scheme allows nationals of participating Commonwealth countries, British overseas citizens, British overseas territories citizens, or British nationals (overseas) from ages 17 to 30 to come to the United Kingdom for a stay of up to two years. The individual may work for a total of 12 months during their stay.
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