United Kingdom: Immigration Bill Updates Published
This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Laura Danielson is an active member.
New Immigration Bill Provides Further Measures on Illegal Migration
On September 17, 2015, the United Kingdom (UK) government published its latest immigration bill, which contains several provisions to tackle illegal migration.
The three main themes include:
- new measures cracking down on the exploitation of low-skilled workers, increasing the punishments for employing migrants who are in the UK illegally, and strengthening sanctions for working without authorization;
- building on the Immigration Act 2014 to ensure that only people living lawfully in the UK can have access to UK bank accounts, driving licenses, and rental accommodation; and
- increasing powers to make it easier to remove people without authorization to be in the UK
Employing unauthorized migrants. The maximum criminal sanction for employing migrants who are in the UK without authorization has increased from two to five years. Such migrants are now subject to a maximum sentence of up to 51 weeks, a fine, or both.
Bank accounts. New measures relating to bank accounts require banks to carry out immigration checks in relation to current accounts. This follows provisions introduced in the Immigration Act 2014 that prohibit banks from opening accounts for unauthorized migrants. The frequency of the checks will be prescribed in regulations. Banks will be required to notify the Secretary of State if checks confirm that the account holder no longer has permission to remain in the UK. Enforcement action will include freezing accounts and/or ultimately closing them.
These provisions will potentially have devastating consequences for those who are not able to produce satisfactory evidence of their right to remain in the UK. Data held by the Home Office and other bodies are not always up to date.
Residential tenancies. Following provisions in the Immigration Act 2014 requiring landlords and/or their agents to check the immigration status of tenants, this bill now introduces criminal sanctions of imprisonment of up to five years, a fine, or both, for non-compliance.
Driving in the UK. A new criminal sanction has been introduced for driving while an unauthorized migrant, which carries a sentence of up to 51 weeks of imprisonment, a fine, or both. In practice, this new offense is expected to be used mainly by the police who, in the course of their work, may encounter such migrants driving on UK roads. Vehicles driven by such migrants may be impounded pending a decision by the court on forfeiture. The police already hold similar powers with respect to vehicles that are uninsured or driven by unlicensed drivers. The police have also been given new powers to seize driving licenses when investigating illegal migration.
Immigration skills charge. The bill provides for regulations to allow the Secretary of State to impose a charge on sponsors of Tier 2 migrants. This immigration skills charge is one of the areas being considered in the Migration Advisory Committee’s (MAC) consultation on the review of Tier 2. (See below for more about the consultation.) The MAC will advise the government on whether this charge should be introduced and, if so, the amount of the charge. Until the MAC has concluded the consultation and advised the government fully, we will not know the extent of any skills charge, but it seems clear that this will be introduced in some form.
Home Office Changes Restricted Certificate of Sponsorship Application Process
The Home Office announced on September 4, 2015, that it will change the operation of the Tier 2 (General) limit to maximize the number of places that can be allocated each month, within the overall annual limit of 20,700.
If the limit is oversubscribed, as it has been in each of the past three months, applications for Restricted Certificates of Sponsorship (RCoS) are prioritized according to a points table. The available RCoS are allocated based on the highest number of points scored. Points are awarded based on whether the job is in a shortage occupation or a PhD-level occupation, and the salary offered.
Some of the points bands in the table are too wide. For example, jobs paying £32,000 to £45,999.99 all score 15 points for salary. Several immigration firms raised this issue with the Home Office at a meeting held in June, following the alarmingly high refusal rate of RCoS from the June allocation. They suggested narrowing the salary bands to increase the chance of an applicant who earns a lower salary to obtain an RCoS. They also raised the issue with the MAC, which is working with the Home Office to achieve this change. The Home Office will increase the number of salary bands in the points table. The revised (provisional) table is shown below:
Revised (Provisional) Points Table
This change would have meant, for example, that in June the Home Office would have been able to allocate RCoS to all non-shortage occupations with a salary of £34,000 or more, rather than £46,000 using the existing table. The prioritization given to shortage occupations and PhD-level occupations will remain unchanged.
The new table is provisional until the necessary changes to the immigration rules have been set before Parliament, but the Home Office said it intends to apply the new bands to the RCoS allocation meeting on October 12, 2015, applications for which opened on September 6. The September 11 allocation meeting used the existing points table.
The Home Office also said it intends to make one further change relating to the limit. Under the existing rules, RCoS must be assigned by sponsors within three months or they will expire. The change will enable the Home Office to return any such unused places to the limit, increasing the number of RCoS available. The Home Office did this informally for the August allocation by writing to sponsors to request the return of unused certificates, which amounted to an additional 648 certificates. This enabled those applicants earning a salary of £24,000 or above to qualify for an RCoS from the August allocation. The reallocation process will now be formalized and any RCoS unallocated after three months will be automatically returned to the pot.
This is welcome news and will significantly benefit those sponsors recruiting recent graduates from overseas.
Tier 2 Cap/Salary Preliminary Report
On August 13, 2015, the MAC published its report following a consultation on Tier 2 minimum salary thresholds. The report was a result of the United Kingdom’s government commissioning the MAC to consult on increasing the minimum thresholds. The commission was split into two parts: the early advice on Tier 2 salary thresholds published now, and a wider review that will be delivered to the government at the end of the year. The MAC is not making any formal recommendations now, pending analysis of the results from the wider Tier 2 Review consultation, but has concluded that there is a good case for increasing the overall minimum threshold for Tier 2 (General).
The main points from the report are:
- The government should be cautious in making any significant changes to salary thresholds at this stage;
- Salary thresholds should be considered in conjunction with the wider Tier 2 Review findings and in particular the impact of introducing a skills levy on employers;
- The MAC’s preference is for occupation-specific salary thresholds rather than overall minimum salary thresholds for each of the Tier 2 categories;
- At this stage, there is a case for increasing the overall minimum threshold for Tier 2 (General)—currently set at £20,800—because this figure was calculated in 2009 when the skill level requirement for migrant workers was much lower than it is now;
- The minimum salary threshold for the intra-company transfer long-term category of £41,500 still appears appropriate;
- There is little evidence to suggest that there is widespread undercutting of UK resident workers by Tier 2 migrants occurring under the current salary thresholds, but this is subject to further analysis;
- The MAC will continue to assess evidence on variations in regional pay but takes the view that there are no major regional variations requiring urgent attention;
- Further work is needed to consider the impact of the Tier 2 (General) monthly limit being reached in June and July, particularly for those lower-paying occupations not on the Shortage Occupation List that are at greater risk of being refused; and
- The UK government should consider looking at health care roles/graduate recruitment schemes separately from the Tier 2 limit to address the issue of refusals for these categories in the short-term.
A summary news release from the MAC is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/453368/MAC_press_release.pdf. The full report is at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/452805/Review_of_Tier_2_-_Analysis_of_salary_thresholds.pdf. A related survey is at https://www.surveymonkey.com/r/MACTier2Consultation_KingsleyNapleyCallForEvidence.