The Loop

August 2019

Spencer West LLP is delighted to introduce The Loop, our digest reporting on all things sponsorship. With UK immigration requirements continuing to change at breakneck speed against a backdrop of political uncertainty, we aim to keep sponsors up to date. We hope this will help businesses access the talent they need and comply with Home Office requirements.

To kick off, this issue covers changes to recordkeeping requirements, including how to handle E-passport gate users. We explore the new criteria for switching from a student visa to a sponsored worker visa. Then come back to the future with us for a review of the government’s published intentions for the future of immigration in the UK.

Changes to recordkeeping requirements

The Home Office revised its guidance on sponsor recordkeeping duties, as set out in Appendix D to the Tier 2 and 5 Guidance for Sponsors. The Home Office published the changes on 6 August 2019, and the new requirements must be adhered to from that date. We discuss the main changes below.

Evidence of entry to the UK when using E-passport gates

The Home Office recently expanded the list of nationals who can use E-passport gates. British and EU nationals have been able to use the E-passport gates since 2008. On 20 May 2019, the Home Office added nationals of 7 countries to the group who can use the gates: Australia, Canada, Japan, New Zealand, Singapore, South Korea and the United States. This was no doubt a welcome change for all those who delightedly joined the shorter queues at UK airports.

It quickly became apparent that the policy poses difficulties for sponsors: their non-EU skilled workers only have permission to work in the UK if they enter the UK during the validity of their work visas, but if they use the E-passport gates, they will not receive a stamp in their passport to evidence their date of their entry to the UK.

The new recordkeeping guidance instructs sponsors to request other evidence of the date of entry in these circumstances, e.g. travel tickets or a boarding pass. The sponsor is instructed to make a record of the date that the migrant entered the UK. The recordkeeping guidance tells sponsors that they do not need to retain the documentation, just a record of the date. However, migrants who might eventually be eligible for settlement should keep the documentation of their entry; this will help them to demonstrate that they meet the residence requirements for settlement in the UK. Sponsors might also be justified in keeping the evidence of initial entry to help secure the settlement rights of their workers.

Note that if a migrant enters the UK before the start date of their work visa, their work visa will not be ‘activated’. They would have to leave the UK and re-enter within the period of validity of their visa in order to activate their work visa and the related permission to work in the UK.

Other recordkeeping changes

The Home Office has conceded that evidence of advertising a role on the Find a Job service website only needs to include a reference number if one exists!

Other changes relate to non-EU creatives and sportspeople staying in the UK for short periods; please get in touch with your contact on the immigration team at Spencer West for further information on the changes relevant to creatives and sportspeople.

Changes to criteria for switching from student to work visas

The Immigration Rules and some Home Office guidance documents changed in early August 2019 to reflect new and different criteria for students switching from the Tier 4 student visa route to the Tier 2 sponsored skilled worker route. It has always been highly advantageous to be able to make the switch between these two visas. At the moment, benefits of switching include that the sponsor need not undertake the Resident Labour Market Test, the Immigration Skills Charge does not apply, an unrestricted Certificate of Sponsorship can be used and the migrant does not have to return to their country of origin to submit their visa application.

The August 2019 changes relate to a student’s Tier 4 sponsor, i.e. the educational institution sponsoring them for their student visa. Student visa-holders will only be able to switch if their Tier 4 sponsor has a good track record of compliance over the past 4 years. The Tier 4 Register of Sponsors has been revised to indicate which UK institutions have the requisite track record to support their students in switching. The compliance requirement seems to relate only to Tier 4 sponsor duties. For example, a university that was fined in 2018 for illegal working infractions is still listed as having a good track record for purposes of their sponsored students switching to the work visa route. Previously, the educational institution had to be a UK recognised body in receipt of public funding.

The August changes follow hot on the heels of another change recently made to the switching criteria: From 30 March 2019, students have been allowed to apply for a Tier 2 work visa up to 3 months before the expected completion date of their course. The date when all exams will have been taken and all papers submitted is the completion date. Documentation of the completion date is required to support the Tier 2 application.

There is a little-known concession to students switching to work visas: Whilst most other non-EU national workers must wait until the approval of their Tier 2 applications before taking up their new role, Tier 4 students can start working once they have submitted their applications. If you are a sponsor who did happen to know about this concession, be warned that it only applies if the documented course completion date has passed.

Equality Act offenders need not apply

On 19 July 2019, the Home Office published a new version of the Tier 2 and 5 Guidance for sponsors, to include a warning to sponsors and businesses applying for licences: The Home Office will refuse sponsor licence applicants and could take action against existing sponsors where they do not honour the rights of those protected under the Equality Act 2010. Protected characteristics under the Act include gender, gender identity, sexual orientation, marital status, race, and religious belief or the lack of belief.

The threatened compliance action applies equally to those businesses fostering hatred or glorifying terrorism. It is unclear how this new policy will be implemented. What behaviour will be considered to fall foul of the policy, e.g. would the Home Office consider circumstances other than losing an employment tribunal claim? How will the Home Office monitor behaviour? Will new reporting requirements be introduced? What exactly are the actions that the Home Office might take to penalise sponsors? We expect the Home Office to expound on this policy in further iterations of guidance. We will of course keep you in The Loop!

Le Brexit and beyond

It is easy to slump into Brexit fatigue with the dizzying range of possible outcomes over the next few years and months. Getting back to the basics of the best information available in respect of a new immigration system under which EU and non-EU migrants would fall after Brexit and any transition period that might apply, we summarise here the salient proposals for sponsors in the UK government’s Immigration White Paper, published in December 2018.

Sponsorship of skilled workers

Sponsorship of new hires would be available for medium as well as high-skilled roles. Medium skilled roles are those at A-level or equivalent, e.g. retail managers, financial and accounting technicians and marketing associates. Employees being transferred to the UK by multinational employers would still have to be highly skilled, i.e. filling graduate-level jobs.

The government will engage with businesses before announcing the minimum salary level. In September 2018, the Migration Advisory Committee (MAC) recommended that the salary be maintained at £30,000 for most applicants, and for new graduates to continue to be subject to a lower salary threshold (currently £20,800). The Immigration White Paper indicates that the salary thresholds may be lower for shortage occupations. The government may also recognise equity compensation offered by digital technology start-ups. In June 2019, the government commissioned the MAC to look at salary thresholds again. The government has specifically asked whether regional salary thresholds should be set. The MAC’s report is due in January 2020.

The Immigration White Paper includes many proposals for streamlining the sponsorship system:

• Abolishing the annual limit of 20,700 on sponsorship of new hires earning less than £159,600
• Abolishing the Resident Labour Market Test, though a light-touch form of it might be implemented for new graduate, entry-level roles
• Minimising sponsors’ reporting burden through sharing of employment, benefits and immigration records between the Home Office, HM Revenue and Customs and the Department for Work and Pensions, e.g. to verify salary level compliance
• ‘Low-risk’ nationals would be able to apply for work visas from within the UK. They can arrive as visitors and switch to work visas. Currently, migrants in the UK under visitor and many other routes cannot switch to work visas.

The government does not state in the Immigration White Paper which countries it considers low-risk. However, we can perhaps take the countries with E-passport gate access as a guide to the Home Office’s views on risk levels.

Proposals to accommodate small businesses include sector-based organisations acting as umbrella sponsors for their sectors. The Immigration White Paper also floats the idea of tiered engagement with the sponsorship system, with lower tiers operating on a ‘transactional’ basis to accommodate businesses that only need to sponsor a few migrants.

New temporary work route for workers of all skill levels

In addition to changes to the sponsorship system, the Immigration White Paper proposes a transitional route for short-term workers of all skill levels, from low-risk countries. They would be afforded a 12-month maximum stay and would have to spend at least 12 months outside the UK between periods of stay in the UK under this route. No sponsorship would be required for these workers and they would be able to move between employers.

Workers under this proposed temporary route would not be allowed to bring family members with them, access public funds, switch to other routes or settle in the UK. The visa fee for this route will increase incrementally each year and the route could be closed if warranted by economic reasons. The Government could also tighten the eligibility criteria.

Watch this space

Watch out for Spencer West LLP’s more comprehensive Brexit guide for businesses to be published over the next few weeks, with tips on how to mitigate risks for your business in our changing political landscape. Our specialists will address international dispute resolution, tax, IP, employment and right to work considerations to support your business planning.

Be the change

Spencer West are participating in feeding back to the Home Office about the future immigration system. If you have anything to say about the future sponsorship system or would like more information on any of the topics covered in this issue of The Loop, please do not hesitate to get in touch with Samar Shams on +44 (0) 7591 385033 or at samar@spencer-west.com.