Immigration Law Update – August 2018
23 August 2018
In this month’s Immigration update we look at the new EU Settlement Scheme, the recently published CBI report, an update on Tier 2 RCoS, Tier 2 and 5 Priority Change of Circumstances Service, Tier 5 Youth Mobility Workers restrictions, and an update on migration statistics.
EU Settlement Scheme
A new Appendix EU has been added to the Immigration Rules, to deal with the roll out of the Government’s new EU Settlement Scheme. This reflects the draft rules discussed in our last update.
NHS employees, university staff and students in the North West of England will be taking part in a private pilot of the new application process. Approximately 4,000 EU citizens will be invited to make real applications for settled status through the new digital process as part of a managed live trial. The pilot is due to begin on 28 August 2018 and will allow those working on the scheme to test the system using real applicants ahead of the launch of the scheme’s phased rollout later this year. Those who go through the process will be granted indefinite leave to remain, assuming they are eligible.
Meanwhile the Home Office has launched a toolkit to help employers, industry groups and community groups in the UK to communicate the EU Settlement Scheme to their staff. The toolkit can be accessed here.
Should EU nationals wait for the new scheme?
The Government has been keen to encourage EU nationals to wait for the new settled status scheme to be rolled out to them, and the employer toolkit repeatedly emphasises ‘don’t rush, you have until 30 June 2021 to apply.’
However, anyone with evidence that they have already been exercising EU Treaty rights in the UK for over five years and who wishes to naturalise as a British citizen, would be well advised to consider acting now. This is because the new Settlement Scheme does not allow for the backdating of indefinite leave to remain. Those who obtain this status under the new scheme, will then need to wait for at least 12 months before they can apply for naturalisation (unless married to a British national). However, it is possible to apply for a permanent residence card now and have this backdated, allowing a naturalisation application to be made before we leave the EU.
Please contact a member of our Immigration Team for advice on your individual circumstances, to identify the best solution for you and your family.
Seminars for EU nationals
Birketts is continuing to support employers with seminars for their EU national staff. These cover the new Settlement Scheme, the current permanent residence system and the pros and cons of applying for naturalisation as a British citizen. We are able to provide generic guidance on what the best options are for different groups of people, and provide an outline of the processes and what you need to apply. There is also plenty of time at the end for questions. For further details please speak to a member of our Immigration Team.
CBI report: Open and controlled – a new approach to immigration after Brexit
The Confederation of British Industry (CBI), the UK’s leading employers’ organisation which represents companies from all sectors of UK business, recently published a report outlining why immigration matters to 18 different sectors of the economy.
The report’s main findings are that:
- immigration is valuable to all sectors of the UK economy and delivers significant economic benefit
- most business sectors require a combination of skill levels and are inter-linked through supply chains, so a whole economy approach is required
- mobility is as important as migration, particularly for the UK economy where services play such a vital role
- the current non-EU immigration system is inaccessible for most firms and is not the solution for EU nationals
- businesses recognise that free movement is coming to an end and want to restore public trust in immigration.
The CBI has made 17 policy recommendations for a reformed immigration system. These include:
- introduce compulsory registration for EU nationals as soon as they arrive in the UK
- restrict EU citizens’ ability to stay to three months unless they can prove that they are working, studying or are self-sufficient.
We are, of course, still waiting for the Government’s promised White Paper on immigration.
Tier 2 RCoS – light at the end of the tunnel?
Tier 2 sponsors are now well aware of the limit on the number of Restricted Certificates of Sponsorship (RCoS) available each month.
The cap was exceeded again in July but there was a glimmer of hope. Following the Home Secretary’s decision to remove doctors and nurses from the quota for Tier 2 General RCoS, the minimum salary required to succeed in the July allocation round was £41,000 which is the lowest it has been since November 2017.
Early indications are that the minimum salary in August was at around the same level.
Tier 2 and 5 Priority Change of Circumstances Service
- Tier 2 and 5 sponsors who wish to expedite a request for the following can request a priority service at the cost of £200:
- in year certificate of sponsorship (CoS) allocation
- follow on CoS allocation
- add new level 1 user
- replace an authorising officer (AO)
- add a representative.
The telephone number for the priority service has recently changed to 0114 207 1315. The line is open from 8:30am to 4:30pm, Monday to Thursday, but only 50 requests are accepted each day, so the earlier you call the better. Decisions normally take up to five working days, which is much quicker than standard processing.
Tier 5 Youth Mobility Workers – restrictions
Many employers are happy to recruit Commonwealth nationals under the age of 30, who can work with a Tier 5 Youth Mobility visa. However, it is important to bear in mind the restrictions that apply to this type of leave. In particular, Tier 5 Youth Mobility Workers are not allowed to work as a professional sports person.
The definition of a ‘professional sports person’ is surprisingly wide, as it is, someone, whether paid or unpaid, who:
- is providing services as a sports person, playing or coaching in any capacity, at a professional or semi-professional level of sport, or
- being a person who currently derives, who has in the past derived or who the Secretary of State has reason to believe is seeking in the future to derive, a living from playing or coaching, is providing services as a sports person or coach at any level of sport, unless they are doing so as an ‘amateur’ in a charity game
- in the definitions of ‘amateur’ and ‘professional sports person’, ‘derive a living’, ‘paid’ or similar references include payments made in kind.
This means that Tier 5 Youth Mobility Workers should not be playing for semi-professional teams (even if unpaid), or working as coaching assistants in schools. The Home Office has been cracking down on this recently, amidst concerns that young Brits are missing out on development opportunities due to competition from migrant workers.
The restriction on working as a professional sports person applies to many, but not all, types of visa. If you do want to recruit a migrant for this type of role, please contact a member of our Immigration Team to discuss what options might be available.
The quarterly report released by the Office for National Statistics (ONS) on 23 August 2018 shows that net migration is now at 270,000. The figures have stabilised since the peaks seen in 2015 and 2016.
There has been a reduction in the number of EU citizens coming to the UK, with overall levels now comparable to those seen in 2012. In particular there were fewer western European nationals coming to work here. However, there were still around 90,000 more EU citizens arriving in the UK than leaving.
The quality of the data relied upon for the report continues to be questioned, with the ONS itself acknowledging that there have previously been anomalies in the estimates received from the International Passenger Survey regarding students. The problems with measuring net migration may provide further ammunition for those arguing that the government should drop its target of reducing net migration ‘from tens of thousands to hundreds of thousands’.
For further information on any of the matters covered in this update, please contact a member of our Immigration Team.
This article is from the August 2018 issue of Employment Law Update, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at August 2018.
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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 August 2018.