France Telecom: lessons for UK employers following 'institutional harassment' ruling
Out-Law Analysis | 21 Jun 2018 | 12:52 pm | 6 min. read
The headline announcement that doctors and nurses from outside the European Economic Area (EEA) will be removed from the Tier 2 (General) visa cap will ultimately help all employers, as it will mean that the overall demand for restricted certificates of sponsorship (CoS) will reduce. Demand for visas for skilled workers under Tier 2 (General) has now exceeded the Home Office's monthly allocation every month since December 2017, and figures show the number of refused restricted COS applications is increasing.
Below is a summary of some of the main changes and tidying up provisions. More information is contained in the government's explanatory memorandum.
The Home Office has announced changes to exempt doctors and nurses from the monthly Tier 2 (General) restricted COS limit, which it has suggested will free up "about 40% of all Tier 2 places". It is not clear how this figure, which may be slightly high, has been calculated, but the change will mean that the demand for restricted CoS will reduce.
The change may apply from the July monthly limit meeting, as although applications need to be made by 5 July the actual decision process will take place on 11 July. The monthly limit may still be exceeded in the next couple of months, given the current backlog in applications.
Those recruiting for NHS roles will still be required to perform a resident labour market test to prove that they were unable to find a suitable UK worker. However, visas will now be allocated from the employer's unrestricted COS allocation.
This may create unforeseen issues for NHS sponsors which do not have a large enough COS allocation. Employers may therefore need to apply to the Home Office for an increase in their unrestricted COS allocation, which will take time, or be required to use the Premium Service option at an additional cost. This will be especially frustrating for those sponsoring personnel in shortage occupation roles, which would previously have been assured an allocation of a restricted COS and now may need to wait until the sponsor has sufficient unrestricted COS.
The government has indicated that the changes "will be kept under review". It is hard to understand exactly what is meant by this, but it could be that if there is suddenly a big increase in roles being sponsored under the relevant codes that the relaxation could be removed. However, the government has also indicated that it will commission the Migration Advisory Committee to review the composition of the shortage occupation list following the removal of doctors and nurses from the annual Tier 2 (General) limit.
The government has finally indicated that the 10% limit on shares which a Tier 2 migrant can hold in their sponsor includes shares held indirectly, as well as directly. This provision dates back to the old 'work permit' scheme, and it is surprising that it has taken so long to be addressed.
References to the old Universal Jobmatch service have been replaced with references to its successor Find a Job scheme.
Tier 2 applicants applying for settlement after 6 July 2018 who have been absent from work on maternity, paternity, shared parental or adoption leave will now need to submit documentary evidence of the birth or adoption.
The scope of roles that can be enforced under the arts field by the relevant designated competent body (in this case, the British Fashion Council operating within the endorsement remit of Arts Council England) is to be widened to include those in the fashion industry who are operating leading designer fashion businesses.
This targeting of specific roles and sectors is becoming an increasing feature of the skilled work-related routes. Another example is the proposed changes to the existing Tier 1 graduate entrepreneur scheme announced by the government on 13 June designed to attract those who wish to start a business in the UK, particularly high-tech start-up businesses.
The evidence requirements for applicants in this category have been tightened. Currently, applicants must submit a portfolio report as evidence that investments have been maintained at the required £2 million level, signed off by a financial institution regulated by the Financial Conduct Authority (FCA). The financial institution must now also confirm that the funds have only been invested in qualifying investments, and that no loan has been secured against the funds.
The government has made a number of changes which will generally help Tier 4 students, and are broadly good news for Tier 4 sponsoring institutions.
The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to nine months.
The Home Office will now accept printouts from awarding bodies' online checking services as evidence of previous qualifications, although it has retained the power to request to see the original certificate of qualification or transcript if required.
Documentary requirements have been reduced for students from Bahrain, Cambodia, China and the Macau SAR, the Dominican Republic, Indonesia, Kuwait, the Maldives, Mexico, Serbia and Thailand.
ATAS certificates will now be required from students who undertake a relevant period of study or research of any length as part of an overseas postgraduate qualification. Previously, this was not required if the period was for less than six months.
Calculation of absences
The government has backtracked on its original decision to make retrospective a change to the calculation of the no more than 180 day absence requirement for most applicants applying for leave to remain in a work-related category.
Before 11 January 2018, this was calculated on a discrete 12 month basis by dividing the relevant five-year period up to the date of a settlement application into five separate 12 month periods. The applicant was only required to meet the 180 day limit in each of those 12 month periods. The requirement was widened on 11 January 2018 so that the 180 day limit could not be exceeded in any 12 month period during that time. This caught absences by highly skilled individuals with leave granted prior to the date of the change, and was likely to be leading to a legal challenge.
The change means that the rolling 180 day requirement will not apply to absences which occurred during periods of leave granted before 11 January 2018.
Although this is good news for the affected individuals, it does mean that different 180 day tests will apply depending on the date of the application for indefinite leave to remain.
The Home Office has accepted that provisions relating to continuity of leave are more generous for those making in-country applications, compared to those making applications from abroad. Changes are therefore being made to bring entry clearance provisions into line with the in-country provisions. As a consequence, an applicant who has had a failed application within the UK may be able to make an application out of country within 14 days of the previous refusal without affecting continuity of leave, on the assumption the new application is approved.
The rules now make a distinction between returning residents who have been absent from the UK for under two years and those who have been absent for longer than two years, to assist members of the 'Windrush Generation' who left the UK before the April change in the law guaranteeing them UK citizenship. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. This is a weaker test than that which applied in the past, where in practice only exceptional circumstances might enable a successful application.
A new five-year route to settlement has been introduced for Turkish businesspeople who are in the UK under the EU-Turkey European Communities Association Agreement (ECAA). This change is intended to account for a recent Upper Tribunal decision, which applied a Court of Justice of the European Union determination that indefinite leave to remain for businesspersons was not covered by the ECAA 'standstill clause'. In practice, the Home Office had permitted such applications in the past.
Hannah Eades is an immigration law expert at Pinsent Masons, the law firm behind Out-Law.com.
France Telecom: lessons for UK employers following 'institutional harassment' ruling