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| Fri, 22/8/2008 | ||
What to expect
Breytenbachs has received a number of queries from clients who are extremely concerned about the news that the UK Government is in the process of overhauling the entire UK Immigration system, in what they promise to be the greatest changes in the UK immigration law for over 40 years. In order to provide a glimpse of what can be expected from the new immigration system, Breytenbachs has compiled a short guideline on what is currently known about the Points Based Immigration System.
Background
The UK Government is in the process of replacing the current immigration system with a points based system, in order to make the immigration system simpler and more transparent. Whether it will indeed be simpler and more transparent remains to be seen.
The new points-based system will consist of five Tiers, which roughly correlate with current visas such as the HSMP, business and investor visas, work permits, specific low-skilled worker schemes, student visas, two-year working holidays etc. It will thus still be possible for people who want to work or study in the UK to do so, as long as they can meet the required points in the category they wish to apply for.
When will it be implemented?
Talks and consultations on the new points based immigration system have been going on for over two years. There are no definite timelines and dates for the implementation of all the different tiers at this stage.
The UK Home Office has rolled out Tier 1 of the new Points Based Immigration System worldwide on 30 June 2008. Tier 1 includes the category for highly skilled workers, entrepreneurs, investors as well as the category for post-study work.
The timetable for introduction of the Tier 2 Skilled Worker category will now apparently come into effect in November 2008.
Tier 5 for Temporary Workers and the Youth Mobility Scheme will according to the UK Home Office's Statements of Intent be implemented in the Autumn of 2008.
The principle of Sponsorship
The new points based immigration system is based on the principle that all migrants to the UK will require a sponsor, except those applying under Tier 1 (the highly skilled, business and investor categories).
Applicants for all the tiers, except for Tier 1, would therefore require a sponsor before he/she is even eligible to apply in a category.
Sponsorship Licenses
Under the Points Based System, employers, colleges and others who benefit from migration and wish to act as sponsors of skilled, temporary and student migrants would need a licence to do so. The organisation, wishing to act as sponsor will need to apply for such a licence from the Border and Immigration Agency.
The cost of a licence is anticipated to be in the vicinity of £300 and £1,000, depending on the size of the organisation.
Employers who hold licenses will be able to issue certificates of sponsorship for prospective employees. However, in so doing, they will have to accept obligations and certify that all the requirements of the new Tier 2 system have been met, and risk losing their license in the event of mistakes.
Upon the issue of a sponsorship certificate, the prospective employee will then have to apply for entry clearance in their home country to the British Consulate or High Commission. However, a sponsorship certificate does not guarantee that a visa will be issued.
The Border & Immigration Agency has commenced accepting applications for employers Licences to issue Sponsorship Certificates under the new Tier 2 Skilled Worker category coming in autumn 2008. All employers applying for Licences will receive a visit from Border and Immigration Agency (BIA) Officers for a review of their HR systems, and receive a score as a result of this visit, prior to a decision being made on the Licensing application. Employers’ HR systems will therefore need to be robust enough to meet the requirements of the new Licensing system. Currently, licensing applications are taking approximately 6 to 8 weeks to be completed, and the BIA is urging applications to be lodged as soon as possible so that there is no log jam just prior to the introduction of Tier 2.
All employers who wish to employ foreign non-EEA nationals in the future, other than individuals who will hold Tier 1 permits, or already hold permanent residence or status such as spouse/partner, will need to obtain a Licence from the Border & Immigration Agency to employ such foreign nationals in the future.
The application process for a Licence is complicated, and involves ultimately an on-line application followed up by presentation of the appropriate documentation. Breytenbachs will advise and assist clients in relation to their applications for Licences, and represent employers in their dealings with the Border & Immigration Agency in relation to the issue of Sponsorship Certificates. Employer clients, wishing to apply for sponsorship licences, should get in touch with Breytenbachs without delay, as the application might be quite complicated.
At present it seems that existing work permit holders will continue to be employed under the terms of the current work permit arrangements. However, the information being published by the Home Office contains ambiguities and contradictions and we will not know for certain about this issue until the full transitional provisions for existing work permit holders are published.
Breytenbachs advises UK employers who wishes to employ future work permit holders to get in touch with Breytenbachs in order to get the application process starting.
Tier 1
Main points from Tier 1 include;
What to expect from Tier 2
The current work permit scheme is being replaced by Tier 2 of the new points based immigration system. According to the Government’s Statement of Intent on the issue, Tier 2 will begin to be implemented in the autumn of 2008.
Under the new Skilled Migrant Tier, an employer would first need a licence from the UK Border Agency in order to employ citizens from outside the European Economic Area. Licensed sponsors will indicate the migrants they wish the UK Government to admit by issuing them with a Certificate of Sponsorship. However, this Certificate of Sponsorship does not guarantee that entry clearance will be issued to the applicant. As a condition of keeping their sponsorship licence, employers will need to alert the UK Home Office if migrants do not comply with their immigration conditions, such as not turning up for their job or disappearing. Failure to comply with this requirement could result in the sponsor losing its licence.
An applicant wanting to come to work in the UK under this tier will need to show that he/she has at least 70 points to qualify under the criteria for this scheme – see table below. The points will include points related to the Certificate of Sponsorship, which will be issued to them by the prospective UK employer to fill a qualifying job. Two control tests are included as well, namely;
A maintenance requirement, which is £800 for initial out-of-country applications, including 2/3 of this amount for each dependent they intend to bring with them. (pass mark is 10 points)
English language ability.
(pass mark is 10 points)
|
Section |
Certificate of Sponsorship |
|
Qualifications |
|
Prospective Earnings |
|
|
A |
Job offer in shortage occupation |
50 |
No qualifications |
0 |
£17,000 - 19,999 |
5 |
|
|
|
|
|
|
|
|
|
|
Offer of job that passes |
30 |
NVQ3 |
5 |
£20,000 - 21,999 |
10 |
|
|
Resident Labour Market Test |
|
|
|
|
|
|
|
|
|
Bachelors/Masters |
10 |
£22,000 - 23,999 |
15 |
|
|
Intra Company Transfer |
30 |
|
|
|
|
|
|
|
|
PhD |
15 |
£24,000 + |
20 |
|
|
|
|
|
|
|
|
|
B |
Maintenance Requirement |
|
|
|
|
10 |
|
|
|
|
|
|
|
|
|
C |
Competence in English |
|
|
|
|
10 |
It is currently possible to apply for a licence at the Border and Immigration Agency as a UK employer, it might be in employers' best interest to start the process as soon as possible. Please contact our offices for more information.
What to expect from Tier 4 - Students
The UK Government has released a Statement of Intent on Tier 4 of the new points based system in July 2008 – the new immigration route for persons wishing to study in the UK. It is anticipated that this Tier 4 will replace the current student visa route in the first part of 2009. Note, however that at present it is only a Statement of Intent and the UK Government could change any part of it.
The new system is underpinned by the principle of sponsorship. This means that every student will need an education provider willing to sponsor him/her. In order for the education provider to act as sponsor, it will have to have a licence from the UK Border Agency. The education provider will also have to adhere to very strict rules and regulations and need to report students who do not adhere to their visa rules; such as not enrolling in time, not attending courses etc.
In order for a student to be able to apply for a ‘General Student’ visa, applicants will have to score 40 points against two sets of objective criteria;
Students granted a general student visa under Tier 4 will still be able to work part time during term time and full time during vacation time. They will also be able to bring dependants with them, provided they fulfil the requirements in this regard.
What to expect from Tier 5 - Youth Mobility
According to a Statement of Intent for Tier 5 that was released by the UK Government, the new Youth Mobility Scheme will replace the current Working Holiday Visa, when it is implemented in the autumn of 2008.
The Youth Mobility Scheme will operate on the principle of balances. Nationals from participating countries will be allowed to come and experience the UK for two years, provided young UK nationals may enjoy similar opportunities in participating countries. Each year, the UK Home Office will publish a list of countries that qualify for the Scheme, together with the number of places on the Scheme that are allocated to each country.
To qualify for the new Youth Mobility Scheme a person has to 50 points to qualify for this scheme;
30 points can be earned for a Certificate of Sponsorship. In order to obtain this, applicants will need to be a national from a participating country and need to be sponsored by their national government. This will be demonstrated by having a valid national passport and if their country does not fulfil certain criteria of the scheme, it should issue the applicant with a valid certificate of sponsorship.
10 points can be earned if the applicant is between the age of 18 and 30 years of age inclusive at the date that their entry clearances become valid.
10 points can be earned if migrants can prove that they can support themselves from the point at which they enter the UK until they begin earning. A figure of £1,600 is mentioned.
Successful applicants will be allowed to live and work in the UK for up to 24 months, and are free to do whatever work they like, except for setting up a business and professional sport or work as a doctor in training.
It remains to be seen as to whether sufficient arrangements are being put in place between the UK and South Africa for the Youth Mobility scheme to apply to South African citizens. However at present it appears unlikely that South Africa will be part of the new scheme at the onset.
Breytenbachs thus advises South African clients that would like to apply for the working holiday visa to contact our offices without delay.
Statement of Intent for Tier 5 - Temporary Workers
The UK Home Office has published its Statement of Intent on how the new points based system will work for temporary workers, which will begin to be implemented in the British autumn of 2008.
The new Tier 5 will remove a number of existing immigration routes with its introduction including; Some work permits in the creative and sporting sector, exchange teachers and language assistants, Training and Work Experience Scheme (TWES), Visiting religious workers, Voluntary workers, Overseas Government employees etc.
The basic requirements for temporary workers include;
Migrants will need a sponsor, licensed by the UK Border Agency, who will confirm that the migrant will comply with the terms of stay and will leave once their leave has expired.
Migrants will be required to earn points by holding a valid certificate of sponsorship and demonstrate that they have sufficient funds to maintain themselves when they come to the UK.
The new Tier 5: Temporary workers will comprise of the following sub-categories; Creative and Sporting, Charity Workers, Religious, Government Authorised Exchange and International Agreement.
Please contact our offices for more information.
What about Ancestry Visas?
The UK Ancestry provisions, if they continue, will fall outside the points-based system. As far as we are aware, no final decision has been taken as to whether the provisions will remain in the future. Persons that are currently on the ancestral basis should not be affected by the changes, as it is almost certain any changes will only apply to new applicants.
The way forward
Breytenbachs advise clients who want to apply for a permit or visa under the current immigration rules to do so, sooner rather than later, as it might be more difficult to qualify under the future criteria.
Employer clients, wishing to apply for sponsorship licences, should also get in touch with Breytenbachs without delay, as the new sponsorship system will involve considerable additional obligations for employers, on which careful advice will be required.
The UK Government is clear that current proposals regarding the new Points Based Immigration System can change at any time prior to or after the implementation of the different Tiers. Breytenbachs will inform its clients via its monthly newsletter on any developments.
If you need any further information, do not hesitate to contact Breytenbachs. Please also feel free to subscribe to our free monthly newsletter in which we advise clients on how changes to immigration rules and could affect their situation.
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