small businessAs of 18th July, sponsors must report to UKVI if the size of their business changes from small to medium/large or vice versa. This does not apply to charities.

Why do I have to report this?

The Immigration Skills Charge was introduced in April 2017.Sponsors pay a set amount for each year that they sponsor a Tier 2 (General) or Tier 2 (ICT- long term) migrant.

Small companies pay a reduced rate, currently £356 per year of sponsorship. Medium and large companies pay a higher rate of £1000 per year.

UKVI record the size of the business when they first grant a licence, because small businesses also pay a lower application fee. However, some sponsors will move from being ‘small’ businesses to being ‘medium’ or ‘large’ businesses during the life of their licence (or vice versa). UKVI therefore need to know this in order to charge the correct rate of Immigration Skills Charge.

How do I know if I am a ‘small’ business?

A small company must meet at least two of the following conditions:

  • annual turnover must be not more than £10.2 million
  • the balance sheet total must be not more than £5.1 million
  • the average number of employees must be not more than 50

The definition of a ‘small company’ for this purposes is the same as the definition of a ‘small company’ for the filing of small company accounts. Therefore, as a rule of thumb, when your business starts having to file accounts according to the rules for medium or large companies, then you must make the report. UKVI does not draw any distinction between a medium and large business, so this change does not have to be reported.

When must the report be made?

The report must be mad within 10 days of it taking place. Therefore, the Authorising Officer should be mindful of this duty when the annual accounts are being collated, so that the report can be made in a timely manner.

Therefore, you should also consider whether you are still a small business when you assign a certificate of sponsorship and pay the Immigration Skills Charge.

However, if you do realise that you forgot to report in time m you should make the report as soon as you realise that it is due. You may then have to pay the extra Immigration Skills Charge for certificates assigned after the change.

How do I make the report?

The report must be made through the Sponsorship Management System by a level one user. If you require help with this, please contact your usual Paragon Law contact or Lydia Watkinson at Lydiaw@paragonlaw.co.uk

banking ID

The requirement for banks and building societies to check on the immigration status of their existing current account holders came into force on 30 October 2017. Measures have already been in place for banks and building societies to carry out immigration status checks on those applying for a new current account since 2014.

 

 

 

Banks and building societies are now prohibited from continuing to operate an existing account for an individual who is disqualified by reason of their immigration status from accessing bank services. An individual is ‘disqualified’ if they are a foreign national who requires permission to be in the United Kingdom but does not have it. The following examples have been provided by the Home Office:

  • never had leave to enter or remain because of illegal entry
  • had leave but stayed after it expired or was revoked
  • European Economic Area (EEA) national subject to deportation action who has exhausted all rights of appeal

To ascertain whether individuals are disqualified, banks and building societies are required to check their customer data against details of known illegal migrants supplied by the Home Office, via a specified anti-fraud organisation (Cifas). If an account holder’s name, address and date of birth match the Home Office data on known illegal migrants, the bank or building society must notify the Home Office. The Home Office will then conduct a secondary immigration status check to confirm the match. If the Home Office confirms the individual is disqualified from operating an account, it may instruct the bank or building society to close the account, or it may apply to court for a freezing order.

Where an individual believes that there has been a mistake in the closure of their account, they are required to contact the Home Office and provide evidence of their lawful status. If a mistake has been identified, the Home Office will change the details so that the account can be re-opened.

There is currently no information on how long the Home Office will take to carry out their review, this is worrying as an individual whose current account has been closed by mistake could be waiting for weeks before anything is done about it.

This is the latest measure by the Home Office to create a ‘hostile environment’ for illegal migrants. If you are currently residing in the United Kingdom without immigration status and require advice and assistance with regularising your status, please contact Aldijana Hoad of Paragon Law on 0115 964 4123 or aldijanah@paragonlaw.co.uk. Similarly, if you believe that your current account has been closed by mistake and you require assistance with corresponding with the Home Office, please contact us and we will be happy to assist you.

What are the new Rules on the minimum income requirement to sponsor your spouse or partner to join you in the UK? 

Aldijana Hoad of Paragon Law explains:

 

 

The Home Office has published new guidance on the minimum income requirement following the Supreme Court judgement in the case of MM (Lebanon) & Others v SSHD [2017] UKSC 10.

The case of MM (Lebanon) considered the lawfulness of the minimum income requirement, brought into force on 9 July 2012, which requires a minimum income of £18,600 (or higher where dependent children are involved) for British citizens and settled persons to sponsor their non-EU national spouse. The Supreme Court found that the minimum income requirement was lawful, but that the Home Office’s rules needed to be amended to take proper account of best interests of children involved in such applications and other possible sources of income and support. The Home Office consequently amended the Immigration Rules (“the Rules”) in July 2017 and guidance has now been issued on how the Rules will be implemented. The new Rules apply to all decisions taken after 10 August 2017 regardless of the date of application.

The guidance reflects a two stage approach that will be taken by the Home Office.

Stage 1

First, the Home Office will consider whether the minimum income requirement of £18,600 is met through the following specified sources:

  • Income from salaried or non-salaried employment of the partner.
  • Non-employment income e.g. income from property rental or dividends from shares.
  • Cash savings of the applicant and/or partner above £16,000.
  • State, occupational or private pension of the applicant and/or partner.
  • Income from self-employment, and income as a director or employee of a specified limited company in the UK, of the partner (and/or the applicant if they are in the UK with permission to work).
  • Where applicant’s partner is in receipt of benefits such as Disability Living Allowance, Carer’s Allowance, Industrial Injuries Disablement Benefit, etc. the applicant is exempt from meeting the minimum income requirement but instead has to provide evidence of ‘adequate maintenance’.

If the minimum income requirement is met through the sources listed above, the applicant will be granted leave under the 5-year route to settlement. If it is not met, the Home Office will consider whether the requirement can be met through alternative sources of income but only in cases, where there is evidence of exceptional circumstances, which could result in unjustifiably harsh consequences for the applicant, their partner or a relevant child, if the application is refused. In such cases, the following alternative sources of income will be taken into account:

  • third party support.
  • prospective earnings from employment or self-employment of applicant and partner.
  • any other credible and reliable source of income available.

The new guidance contains detailed criteria on which the Home Office will rely to assess the genuineness, credibility and reliability of the above sources. Each case will be considered on its own merits, in the light of all the information and evidence provided by the applicant. If the minimum income requirement is met through alternative sources of income, the applicant will be granted leave under the 10-year route to settlement.

The Home Office defines “unjustifiably harsh consequences” as the ones which involve a hard outcome(s) for the applicant or their family which is not justified by the public interest, including maintaining effective immigration controls, preventing burdens on the tax payer, promoting integration, etc. It involves consideration of whether refusal would be proportionate, taking into account, all facts of the case and, as a primary consideration, the best interests of any relevant child.

In June 2017, the Home Office had around 5,000 applications on hold pending an amendment to the Rules. The Home Office will now be considering these applications and where there are exceptional circumstances and refusal could result in unjustifiably harsh consequences, the applicants will be contacted in writing and given 21 days to provide evidence of alternative sources of income. This evidence will be considered in addition to the evidence provided already.

Stage 2

Secondly, where an applicant does not meet the minimum income requirement and/or other requirements under the Rules, the Home Office will consider whether there are exceptional circumstances which would result in unjustifiably harsh consequences for the applicant, their partner or a relevant child if the application is refused. Where there are such circumstances, the applicant will be granted leave under the 10-year route to settlement.

If you require advice on whether you meet the minimum income requirement or have received a letter from the Home Office asking you to provide evidence of alternative sources of income within 21 days, please contact our offices on 0115 9644 123 or enquiries@paragonlaw.co.uk and we will be happy to assist you.

Thal_1_2_1

 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.