In this month’s update: right to work checks and unfair dismissal, salary threshold for Tier 2 Indefinite Leave to Remain and more
Right to work checks and unfair dismissal
The Employment Appeal Tribunal case of Nayak v Royal Mail Group Ltd UKEAT/0011/15 is an interesting example of an employer grappling with the need to balance an individual’s employment rights, with their own obligation not to employ someone who does not have the right to work in the UK.
For our full report on this case please see the full article from our employment team.
Salary Threshold for Tier 2 Indefinite Leave to Remain
In our March update we reported on the minimum salary requirement which applies when a Tier 2 migrant wishes to apply for settlement. The Home Office has now explained what evidence is required to prove this.
When submitting an application for indefinite leave to remain, the migrant must supply a letter from their employer. The employer must confirm the migrant’s salary, state that the migrant is still required for the foreseeable future and provide details of their absences from the UK.
The migrant must also provide their most recent payslip and the corresponding bank statement or their building society passbook. These should be dated within the last month and must be original documents, or accompanied by certification from the employer/bank as appropriate. If the migrant is not being paid their normal salary because they are on maternity, paternity, shared parental or adoption leave, then they must provide payslips and bank statements from the month before their leave commenced and for each month of the leave.
The migrant can only count the salary they have earned from their main sponsored employment and cannot take into account any other sources of income. If they are paid an hourly rate (rather than an annual salary), they may only count earnings of up to 48 hours per week, even if they have been working more than this. They can only take into account guaranteed income, such as salary, allowances and any guaranteed bonus. Discretionary bonuses and commission cannot be included.
There are specific exemptions for migrants in:
- Shortage occupation
- PhD level role
- Tier 2 Ministers of Religion.
Immigration skills charge
From April 2017 employers who sponsor a migrant worker for a Tier 2 visa will be required to pay an ‘immigration skills charge’ of £1,000 per migrant, per year. A reduced rate of £364 will apply to small businesses and charities. There will be exemptions for PhD level roles and for international graduates switching from a student visa to their first work visa, as well as for intra company transfer graduate trainees. There is no exemption for jobs on the shortage occupation list. Our next edition of HR Matters will contain further details.
The Home Office has issued new guidance on ‘section 3C leave’. This has highlighted various quirks which are already causing problems for migrants who previously might have expected section 3C of the Immigration Act 1971 to operate so as to extend their current leave whilst they have a pending application or appeal. Migrants often rely on this to carry on working whilst their visa renewal application is being decided.
The new guidance clarifies that EEA applications do not qualify as applications that extend section 3C leave. This is because they are made under European law, not the Immigration Rules.
This is particularly relevant for family members of EEA nationals. For example, a Tier 2 migrant who is married to an EEA national may decide to apply for an EEA family permit, rather than renew their Tier 2 visa. Whilst the Home Office is required to determine such applications within 6 months, in practice this target is not always met. If the migrant’s Tier 2 visa runs out and their pending EEA application is subsequently refused, the migrant will be deemed (with the benefit of hindsight) to have been overstaying. If the Home Office processing time means they have overstayed by more than 90 days, they will be required to leave the UK and would face a 12 month cooling off period before they could be sponsored for another Tier 2 visa. Therefore individuals in this position need to carefully consider the timing of any EEA application and/or must be extremely confident it will succeed.
The guidance also notes that a person who has made an invalid application does not have 3C leave, even though they did not know and could not have known of its invalidity. Again they may be deemed (with the benefit of hindsight) to have been overstaying.
There is also an anomaly regarding appeals: If an individual applies for a new visa and they receive a refusal after their current leave has expired, they can lodge an appeal and will have 3C leave whilst that appeal is being considered by the courts. However, if they receive the refusal before their current leave expires then 3C leave does not kick in. The individual can appeal against the refusal but would not have 3C leave whilst the appeal is being decided. Perversely, it seems to be more advantageous to only lodge applications just before the original visa expiry date, rather than to make them in good time. Despite lobbying from various parties, the Government has shown no appetite to use the Immigration Bill to change this.
Consultation regarding proposed hike in appeal costs
The Government has announced proposals to significantly increase the costs of challenging an immigration decision in the First Tier Tribunal (Immigration and Asylum Chamber) and the Upper Tribunal (Immigration and Asylum Chamber). The aim is to make these Tribunals the first to be entirely funded by fees.
They are suggesting an application to the First-Tier Tribunal for a decision on the papers should rise from £80 to £490 (600% increase!) and that applications for an oral hearing should cost £800 instead of £140 (571% increase!). They would like to add an entirely new fee of £455 which will be payable by those seeking permission to lodge a further appeal at the next level. Upper Tribunal fees would also increase in a similar way.
There would be limited exemptions, for example if the applicant can show they qualify for legal aid or asylum support, are “destitute”, are appealing against loss of citizenship or are a child being supported by a local authority. However, the consultation paper anticipates that there would be a 20% reduction in appeals as a result of the increase.
If an appeal is successful then the Home Office could be required to reimburse the applicant for the fee, but the problem is that they would still need to have had the cash to pay it in the first place. Such an increase could be particularly tough on people who have lost their jobs, because their employer has concerns about their right to work and on those who are appealing a refusal that was related to their ability to meet a minimum income or maintenance requirement in the first place. The consultation is open until 3 June and further details can be found at: https://consult.justice.gov.uk/digital-communications/first-tier-tribunal-and-upper-tribunal-fees
For more information on any of the matters covered in this update, please contact Janice Leggett in our immigration team.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at April 2017.