Changes to immigration law: what it means for employers
Salary levels and a relaxed approach to the resident labour market test were among the more significant changes introduced on 6 April 2013, aimed at simplifying the Immigration Rules.
Changes introduced to simplify immigration rules include an update to Codes of Practice. The Codes of Practice, which list the jobs non-EEA workers can be sponsored, have now been updated to incorporate the Standard Occupational Classification codes recently revised by the Office for National Statistics (ONS). Workers sponsored under the old SOC codes will not be affected, but employers will need to apply the new codes going forward.
The Codes of Practice for each and every role are now contained in one simple document. It replaces the large number of guidance notes which previously arranged roles into alphabetical sections by industry sectors. The process of identifying Tier 2 roles, including skill and salary information for any one role, is therefore now far easier.
The Tier 2 category is for foreign nationals who have been offered a skilled job to fill a gap in the workforce that cannot be filled by a settled worker.
Prior to 6 April 2013, Tier 2 General workers were generally required to be paid an annual salary of £20,000 or the sum contained in the Code of Practice - whichever was the highest. This principle continues to apply but the baseline salary has now increased to £20,300 in line with wage inflation. The salary levels for Tier 2 ICT workers, which are slightly different, have similarly increased.
Further, the Codes of Practice now impose two simple salary thresholds - a "new entrant" salary and an "experienced worker" salary. Both are based on a 39-hour week. A new entrant is defined as:
- Overseas graduates currently under Tier 4 of the PBS switching into Tier 2;
- Graduate recruits where the employer has used a university 'milkround';
- Those sponsored under the Tier 2 ICT Graduate Trainee route; and
- Anyone aged 25 or under on the date of their initial Tier 2 application.
An 'experienced worker' is anybody who does not fall within the above definition. It includes previously classed 'new entrants' who extend their Tier 2 leave beyond three years in addition to work permit holders switching into Tier 2 or settling in the UK. Some roles in health and education are not subject to this change.
Unless an exemption applies, an employer may need to advertise its vacancy in the Job Centre Plus in addition to one other media before offering a position to a non-EEA candidate under Tier 2. Previously, the Codes of Practice prescribed very limited options as to the media in which a role could be advertised. The criteria have now been relaxed giving the employer far more freedom to choose the most suitable media.
The Shortage Occupation List has also been revised. A role that appears on this list is exempt from the RLMT while from 6 April 2013, non-EEA students completing a course leading to a UK PhD will have 12 months after the completion of their course to find work or work experience with a Tier 2 employer.
So what do these changes mean for employers? In practice, the changes mean that before recruiting an overseas candidate or supporting an existing employee's Tier 2 leave to remain in the UK, employers should assess whether the 'new entrant' or 'experienced worker' salary rates apply. This will involve checking the immigration history of the candidate/worker. An employer mistakenly paying the worker an incorrect salary will result in that worker's application for leave to remain being refused.
Glyn Lloyd (pictured) is an employment lawyer who specialises in immigration law at Morgan Cole