CHANGES TO THE POINTS BASED SYSTEM

10th August 2009

The UK Border Agency has announced a number of changes to the points based system and revised its guidance for employers and education providers who sponsor migrant workers and students.

Key changes include the following:-

Tier 2 (General) - removal of the requirement that a migrants salary must be paid in the UK. This means that both Tier 2 (General) and Tier 2 (ICT) sponsored migrants may be paid overseas.

Tier 2 (General) Resident Labour Market Test (RLMT) - an exemption from advertising in Job Centre Plus has been introduced where:-

1. The job is in the role of Director, Chief Executive or Legal Partner, where the salary package for the job is £130,000.00 or above or where there will be stock exchange disclosure requirements;

2. The migrant has been recruited as part of a milkround and the sponsor signs a Certificate of Sponsorship to the migrant on or before 31 August 2009;

3. The migrant will be employed at a higher education institution as a research fellow.

Tier 2 (General) - a temporary exemption has been introduced from the time limit on assigning a Certificate of Sponsorship to a migrant who is being recruited via a milkround. Sponsors can exceptionally assign a Certificate of Sponsorship where the milkround took place more than twelve months ago but only where the migrant is starting work on or before 31st August 2009.

Tier 2 (General) - where the migrant is switching from:-

  • Tier 1 (Post Study Work); or
  • the International Graduates Scheme; or
  • the Fresh Talent Working in Scotland Scheme; or
  • the Science and Engineering Graduate Scheme

there is the removal of the requirement that the migrant provide a letter from their Tier 2 sponsor giving verification of employment within the sponsor organisation for the last six months immediately prior to their application for leave.

Tier 2 (ICT) - an additional requirement has been introduced that a migrant employed under Tier 2 (ICT) must not be directly replacing a settled worker. This does not mean that a resident labour market test has been introduced for Tier 2 (ICT).

Tier 2 (ICT) - the qualifying period where the migrant must have worked for the sponsor organisation before being allowed to enter the United Kingdom under Tier 2 (ICT) will be extended where the migrant has had a period of maternity, paternity or adoption leave. In such cases the applicant must have worked with the organisation for at least six of the last eighteen months.

Tier 2 (ICT) - changes have been made to the rules on allowances paid to migrants as part of their salary package. By way of recognition that short term accommodation costs can be higher, UKBA allows 40% of the migrants gross salary to be paid in accommodation allowances but only where the migrant is applying from outside of the United Kingdom and their Certificate of Sponsorship is for twelve months or less.

Tier 2 (General and ICT) - the new guidance confirms that the letter issued to the migrant to confirm that the sponsor is certifying their maintenance must include the migrants Certificate of Sponsorship reference number.

Tiers 2 and 5 (all categories) - further clarification has been provided on when full change of employment action must be taken and the processes it must follow. Where a migrants core duties and/or responsibilities change, or where their position in the hierarchy of the sponsoring organisation changes, for example due to a promotion, this is treated as a change of employment. Changes of employment require a fresh resident labour market test and a new COS.

Tier 2 (General and ICT) UKBA confirms that a temporary reduction in a migrants salary and/or working hours in order to avoid redundancies due to the current economic climate will not require full change of employment action. But this will only apply where:-

  • the migrant has a current grant of leave under Tier 2; and
  • the migrant is continuing to work in the same job with reduced working hours; and
  • the migrants reduced working hours are part of a company wide policy to avoid redundancies; and
  • migrant workers are not treated less favourably than resident workers; and
  • the migrants pay or working hours do not reduce by more than 30%; and
  • any reduction in wages in proportionate to the reduction in hours; and
  • the arrangements will be in place for no more than one year

    Tiers 2 and 5 - Further guidance has been provided on contract work. Where the sponsored migrant is carrying out work for a third party on behalf of the sponsor, the migrant must be contracted by the sponsor to provide a time bound service or deliver a time bound project on behalf of the sponsor. They may not be contracted as agency workers or undertake a routine role for the third party, which is not related to the delivery of a time bound service by the sponsor.

    Tiers 2 and 5 - Changes to the Immigration Rules have been made regarding when an application for leave can be made by a migrant. An application for initial leave cannot be made more than three months in advance of the start date quoted on the Certificate of Sponsorship.

    Tiers 2 and 5 - Further clarification has been provided on reporting changes to a migrant's salary. A change of salary from the level stated on the migrants Certificate of Sponsorship should be reported, other than when it relates to annual increments, bonuses or natural career progression within the same job provided this progression is at the same level and is not a promotion.

    Please contact your Magrath representative for further advice and guidance in respect of changes to the points based system.