Out-Law News | 06 Mar 2013 | 10:37 am | 3 min. read
It has published a statement of intent setting out the detail of the changes, which will be made to the Codes of Practice for workers entering the UK under Tier 2 of the points-based system (PBS). Among them will be new salary requirements, which will differ depending on whether the worker is classed as a "new entrant" or an "experienced worker", and changes to the way the resident labour market test (RLMT) is conducted. There will also be changes to the list of skilled occupations, which are intended to more accurately reflect modern occupations.
Immigration law expert David Brannan of Pinsent Masons said that although the changes were mostly technical, they would be "generally welcomed by employers" as simplifying the system. However, he warned that the impact of the changes would not be fully known until the wording of the Immigration Rules itself was updated.
The PBS was introduced in 2008 to replace the existing work permit system. Migrants from outside the EEA must be able to demonstrate that they possess certain attributes before they can get permission to enter or remain in the UK. Points are awarded for various attributes under each category or 'tier' which can include age, prospective earnings, qualifications and English language ability.
In the majority of cases, an employer must complete an RLMT to prove that there is no suitable settled worker to do the job before sponsoring a migrant worker. The employer need not do so if the vacancy is for an occupation on the UK Border Agency's list of shortage occupations. The RLMT requires the employer to advertise the vacancy to settled workers for a minimum of 28 calendar days.
Currently, the UK Border Agency (UKBA) lists specific publications and websites on which vacancies must be advertised to meet the RLMT. From April, this list will be replaced with a set of simple criteria for identifying suitable media for the vacancy in question. The Migration Advisory Committee (MAC) recommended this change in its review of the Codes of Practice, published in October 2012. Employers must continue to advertise jobs via two different media, one of which must be Jobcentre Plus in most cases.
In a written ministerial statement, immigration minister Mark Harper said that the changes would "give employers more freedom to advertise in the media they think are most likely to be successful for their sector".
"This will mean settled workers looking for jobs in that sector will be better targeted and will have more opportunities to apply for skilled jobs," he said. "We will still require most jobs to be advertised via a Jobcentre Plus online service (or JobCentre Online, for jobs based in Northern Ireland), but we will keep this requirement under review."
Immigration law expert David Brannan said that although the changes would make the requirements of the RLMT more flexible, they "failed to address" the problems employers face around keeping records of having completed the RLMT.
"These requirements are set out in the guidance for sponsors, which is not currently contained in the Immigration Rules and can be subject to change without warning or notification," he said. "This can be compounded by compliance officers from the UK Border Agency being inconsistent in the documents they request from registered sponsors when making compliance visits."
Changes to qualifications and salary requirements in the Codes of Practice are being made in line with the MAC's recommendations, the Home Office said. A migrant worker's qualifications are currently assessed on the basis of the categorisation of occupations under the Standard Occupational Classification (SOC) Codes 2000 from the Office of National Statistics. These are to be replaced with categorisations based on the SOC Codes 2010. Minimum qualification requirements for new migrants will remain at National Vocational Qualification Framework (NVQF) level 6, equivalent to Bachelors degree level.
Minimum appropriate salary requirements for each occupation will be updated in line with the MAC's recommendations, so that the minimum is generally set at the 25th percentile of wages in that occupation. In addition, overall salary thresholds will be increased in line with inflation. New salary requirements will be introduced for "new entrants", including graduates and those aged under 25 at the date of their initial application, and will be set at the 10th percentile of wages in that occupation. A worker can only be classed as a "new entrant" for three years, after which the "experienced" rates will apply.