The Immigration Health Surcharge is currently £200 per year for most migrants. Those on student visas pay a reduced rate of £150 per year.

 

The Government has announced that they plan to double the Immigration Health Surcharge in December 2018. However, they have not set a specific date in December.

This means that, as of December, those applying for new visas will have to pay £400 per year for the duration of their visa in addition to their visa application fee. Tier 4 students and those entering on the Tier 5 (Youth Mobility Scheme) will have to pay £300 per year. All dependants will also have to pay the same amount as the main applicant.

We advise that applicants should try to submit applications before December 2018 where possible, in order to avoid this significant increase. In particular, you should consider if you or your Tier 2 employee will need to make an extension application in the near future and progress this as soon as you can. The Immigration Rules allow applicants to submit an extension application up to three months before their current leave expires.

In respect of Tier 2 Sponsors you should also make sure that you have sufficient certificates of sponsorship available for all employees who will need them. If you are hoping to sponsor new recruits, you should start running any mandatory advertising now if you have not already done so to allow the 28-day period to run. It will be even more important to ensure that the advertising meets all of the Home Office stipulations as making corrections will cause delay.

If you require further advice or assistance with your application then please get in touch with your usual Paragon Law contact or email enquires@paragonlaw.co.uk or call 0115 9644123.

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 Changes to the Immigration Rules – Update for Employers

The important changes to the Immigration Rules which employers and sponsored workers need to be aware of and which came into effect on 24 November 2016 are as follows:-

 

Tier2 (General)

  • The minimum salary threshold for experienced workers has increased to £25,000. This will increase again in April 2017 to £30,000.
  • The threshold remains £20,800 for new entrants i.e. those under the age of 26 or international students switching from Tier 4 to Tier 2.
  • An exemption from this increase will apply for nurses, medical radiographers, paramedics and secondary school teachers (mathematics, physics, chemistry, computer science and Mandarin). The exemption will end in July 2019.
  • Those employed under a graduate training programme will be able to change occupation within the programme or at the end of the programme, without their sponsor needing to carry out a further Resident Labour Market Test or the need for them to make a new application.
  • Nurses will continue to remain on the Shortage Occupation List but employers will need to carry out a Resident Labour Market Test before proceeding to sponsor a nurse under the Tier 2 (General) visa.

 

Tier2 (Intra-Company Transfer)

  • The Skills Transfer sub-category has now been closed.
  • The minimum salary threshold for the Short Term sub-category has increased from £24,800 to £30,000.
  • The minimum salary threshold for the Graduate Trainees sub-category has been reduced from £24,800 to £23,000 and the number of trainees each employer may sponsor has increased from 5 to 20.

 

The changes that are likely to take place in April 2017

  • The exemption currently from having to pay the Immigration Health Surcharge to Tier 2 (ICT) Migrants and their dependents is likely to be removed.
  • The new Immigration Skills Charge will be introduced and will be set at £1,000 per year for a sponsored worker of a large businesses and £364 per year for SMEs and charities. Exemptions will be applied to PhD occupations, ICT Graduate Trainees sub-category and international students switching from Tier 4 to Tier 2 (General).

 

Other Autumn 2016 changes to be aware of

  • The Home Office have previously accepted applications submitted within 28 days of a persons immigration status expiring regardless of the reason for the overstay. This has now been reduced to 14 days and an out of time application will only be granted if there is a good reason beyond the applicants control for the overstay.
  • The Rules have been amended to enable a Tier 5 A-Rated sponsor to certify maintenance in respect of a Tier 5 migrant and their dependents.

 

Immigration Act 2016

Two important provisions were introduced on 12 July 2016:

1.A new offence of illegal working

  • The offence is committed when a migrant works in the UK when he knows or has ‘reasonable cause to believe’ that he is disqualified from working.
  • The offence carries a maximum term of imprisonment of up to 51 weeks or a fine, or both.
  • A confiscation order may also be made under the Proceeds of Crime Act 2002 to cease the earnings of the convicted illegal worker

 

2. An amended illegal employment offence for employers

  • The offence has been widened to not only include employers who ‘knowingly’ employ illegal workers but also employers who have ‘reasonable cause to believe’ that the employee is disqualified from employment by reason of their immigration status.
  • The maximum term of imprisonment has increased from 2 to 5 years.
  • Immigration officers have also been given the power to arrest without warrant any person who they have reasonable grounds of suspecting has committed or is attempting to commit the offence of employing a person illegally.
  • It should also be noted that on 1 December 2016 immigration officers will be given additional powers under The Act to close business premises for up to 48 hours if employers who have committed immigration offences and they will be able to apply to the court for a compliance order to impose special measures, including ongoing closure, on the employer to prevent illegal working.

3. Why you should be concerned?

  • The bar has been reduced from ‘knowingly’ employing someone who does not have the permission to do so if as an employer you could be found to have had ‘reasonable cause to believe’ that the employee did not have or had ceased to have the right to work in the UK.
  • It should also be noted that if an employee of the business who has responsibility on behalf the business of any aspect of the employment of an individual has reasonable cause or believe that the employee does not have the right to work then the business will be treated as having ‘reasonable cause to believe ’that fact.
  • The 2016 Act does not give a definition of ‘reasonable cause to believe’ and it will therefore appear that the law will be developed on a case by case basis. The threshold will certainly be higher than mere negligence as this is the function of the civil penalty regime though, the bar has been set lower than ‘knowingly’ employing someone who does not have the correct immigration status.
  • Those employers who hold a Tier 2 license who fall foul of this legislation are likely to have their license revoked and the immigration permission of all migrant employees sponsored under the license curtailed. The business is likely to be prevented from applying for another Tier 2 license for a period of up to 12 months.

4. What you should be doing?

  • It is recommended that you review your right to work checks to ensure that your system and procedures are robust in order for you to maintain the statutory excuse for all employees.
  • You should also review your procedures in relation to change of circumstances and new information received after the employment has commenced.
  • HR and line managers should be given training on the new changes and what circumstances may trigger having ‘reasonable cause to believe’ and the action to be taken.

 

Training

Paragon Law will be running a training course on the new and proposed changes to the Immigration Rules, preparing for UKVI visits (including the areas of focus by visiting officers), the changes under the Immigration Act 2016 and protecting your EU employees following the Brexit referendum. This one day course will take place in January 2017 and places will be limited. Therefore to register your interest or if you require specific training for your HR advisors please email me at thalejv@paragonlaw.co.uk.

 

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The Immigration Health Surcharge

Since 6 April 2015, most migrants seeking to enter or extend their stay in the UK must pay the Immigration Health Surcharge. The charge, which is one of a number of reforms contained in the Immigration Act 2014, is intended to be a financial contribution by migrants to the cost of their healthcare whilst in the UK. It has been set at £200 per year for those coming to work or join family members and £150 per year for students.

The surcharge must be paid by most people applying for limited leave and includes main applicants and dependents alike.  Visitors and those applying for indefinite leave are not required to pay nor are EEA nationals and their family members who are exercising rights of residence in the UK.

Having paid the surcharge, those migrants living in the UK will have the same access to the NHS as permanent residents.

Why has it come about?

According to the Home Office consultation paper which ushered in the reforms, the rules regulating migrant access to the NHS were too generous, particularly when compared with wider international practice, and have acted as a draw card to health tourists.

Countries such as Australia and the USA do require student and working migrants to purchase health insurance for the duration of their stay.  The government argues that the UK will not lose its competitive edge in this regard as private health insurance is much more costly than the surcharge and would also not cover pre-existing and chronic conditions.

The charge is also intended to remove some of the uncertainty over access to treatment which has been a difficult issue faced by health professionals who must decide who pays for treatment at the point of use.

Critics of the scheme claim that the government lacks figures about the actual costs that migration adds to the NHS and that working migrants who pay tax and national insurance contributions will effectively be paying twice for their access to healthcare. There is also some question as to whether health tourism will be curbed by the measures which do not apply to visitor visas.

How does it work?

The Immigration (Health Charge) Order 2015 specifies who pays the surcharge, when it is to paid, the consequences of non-payment and includes the various exemptions.

The charge must be paid at the time of applying for leave and the amount payable is based on the maximum period of time for which permission could be granted under the relevant application route. For family members applying under Appendix FM the period will commonly be 2 ½ years. A student undertaking a one year course may have to pay for 1 ½ years which reflects the maximum length of leave (17 months) that may be granted in that instance.

Users of the Visa4UK website will now find that the process of calculating and paying for the surcharge has been integrated into the main online application process. For paper-based applications, however, the surcharge must be paid separately using the Immigration Health Surcharge online portal. This will generate an IHS number which must be written on the front page of the application form. Applicants who do not pay the charge before submitting their application will receive a request for payment rather than having applications returned as invalid.

The surcharge is refunded when an application for leave is refused and in circumstances where there is an overlap of payment in consecutive periods of leave. The surcharge is not, however, refunded if leave is curtailed or if it is simply not taken up having been granted.

Exemptions and Examples

Most notable among the various exemptions contained in Schedule 2 of the 2015 Order are: Tier 2 (Intra-Company Transfer) applicants, those seeking asylum or humanitarian protection and nationals of Australia and New Zealand.

All entry clearance applications for periods of 6 months or less are exempt from the charge as are visitors applying under Appendix V of the Immigration Rules.

Some of those exempt from the charge will have full access to health care such as refugees and those from Australia and New Zealand (which have reciprocal agreements with the UK). Visitors, however, will be required to pay if they receive treatment from the NHS.  It is advisable that visitors arrange private insurance for the duration of their trip.

The Intra-Company Transfer exemption makes this Tier 2 vehicle an even more attractive option for employers. A family of 4 coming to the UK under Tier 2(ICT) for 4 years will save a total of £3,200 compared to a non-ICT sponsored employee and family coming for the same period.

The surcharge adds a further financial burden to family members seeking to enter or remain in the UK. For example, a parent with two dependent children who applies for leave to remain for a period 2 ½ years will now need to pay a total of £3,447 in application and surcharge fees. For many this will be prohibitive. Where issues of human rights arise, there is scope to challenge a surcharge fee if it would prevent the effective consideration of those issues.

Conclusion

The additional cost burden that the Immigration Health Surcharge creates is significant and will no doubt have an impact on the full spectrum of immigration applications in the UK. It is yet to be seen whether the charge will resolve the difficult question of who should have access to the NHS and how that should be managed.

For further information contact Nigel Smith, nigels@paragonlaw.co.uk.