Hi

I hope you have recovered from the chaos left by the Beast from the East. It has certainly been trying for me, particularly with deadlines looming and postal services disrupted.
 
As we move forward into spring, this month, I thought I would draw your attention to sections in the Regulations and Immigration guidance that are not so well reported on.
 
All the best Narinder
Home Office guidance for employers - Valid leave to enter or remain and Indefinite Leave to remain in your current valid passport
 
In 2017 the Home Office issued guidance to employers pertaining to the acceptable forms of identification, the Home Office would expect, employers to retain on their employees personnel files to satisfy the requirements that their employees have a lawful right to work in the UK.
 
This has exposed a serious problem for individuals who may well have limited leave to enter, limited leave to remain in the UK or indefinite leave to remain in the UK but have failed to keep their identification documentation up to date.
 
Employers are unable to accept expired passports that may well have a valid status stamp in it as evidence that individuals have a right to work. The Home Office guidance highlights that all leave should be in a valid up to date passport or by providing a valid biometric card. Individuals who have used their expired passports or identification cards to secure work in the past should either apply for a transfer of certificate, where they have limited leave to enter or remain or a no time limit where they have indefinite leave to remain. They will be issued with a biometric card and coupled with a valid passport this will be sufficient evidence for the purposes of meeting the Home Office requirements to demonstrate individuals have a right to work.
 
Employers can, where employees fail to provide valid leave with a valid passport, refuse to employ individuals and where they are in work suspend or terminate their contracts to avoid being penalized and heavily fined by the Home Office. Therefore anyone who finds themselves in this position should immediately rectify the problem to avoid any inconvenience.
Visa Cap for skilled non- EU workers hit for third month running
 
UK businesses seeking to hire skilled non - EU workers are losing out as it emerges that the monthly quota has been hit for the third month in a row. The Home Office sent out emails to businesses that were awaiting the outcome of the February restricted certificate of sponsorship round. A restricted certificate of sponsorship is needed to support a highly skilled non – EU worker coming to the UK to work.
 
This is only the fourth time since the quota was introduced in April 2011 that the cap has been hit. This means that many highly skilled workers are unable to take up their post until the number of applications lodged start to fall.
 
Restricted certificates of sponsorship are certificates the employer cannot directly issue to their worker unlike an unrestricted certificate of sponsorship.
A restricted certificate must be issued to anyone who is unable to make an immigration application under Tier 2 from inside the UK, unless they will be paid at least the higher rate of salary, which is currently £159,600. Dependents of Tier 4 students must also have a restricted certificate.
 
The employer would need to apply for a restricted certificate from the Home Office and the Home Office must approve the application. Each month a session is held to determine where the threshold for points will be set based on the number of applications received. It is unclear what the threshold will be until a few days before the session.
 
The Home Office criteria for scoring and prioritizing applications is contained in the sponsor guidance but jobs on the shortage occupation list receive most points following by PhD level roles and graduate roles recruited through the
milk round. Then it is a case of how much money the businesses are willing to pay employees. Companies that pay the highest salaries are rewarded with a certificate and those that pay lower wages will need some luck.
 
It appears for March’s round that the salary threshold for rejection could be around £50,000. Initially it was felt that the maximum quota being reached was a blip but now appears the government will have to step in as it seems this will be a long term issue. There are calls for a change in the points, the criteria or to create exemptions. There are already calls to exempt NHS workers.
 
The sponsor guidance is clear that restricted certificates are for very talented non – EU migrants who will undertake a highly skilled job that “suitable” resident workers have not applied for, for a higher salary. The minimum that can be paid at present is £30,000.
 
With Brexit looming, businesses need all the support they can receive to compete in the global market.
 
Immigration Skills charge
 
More and more employers are considering recruiting from outside the European Economic Area (EEA) and Switzerland. In addition to the costs of becoming a licence holder, employers now will also have to consider the Immigration Skills charge. Under the Immigration Skills Charge Regulations 2017, employers may be required to pay the Immigration Skills Charge each time they sponsor a worker from outside the European Economic Area (EEA) and Switzerland.
 
The skills charge applies to a Tier 2 worker assigned a certificate of sponsorship on or after the 6 April 2017 in the ‘General’ or ‘Intra-Company Transfer’ routes.  The amount of the skills charge payable depends on the size of the organisation and the length of employment stated on the worker’s certificate of sponsorship. The skills charge is £1,000 per person, per year. If the company has charitable status or they are subject to the small companies regime then they are eligible to pay the ‘small’ charge of £364 per person per year. The charge is payable at the same time that the employer pays to assign a certificate of sponsorship to sponsor someone to do a skilled job in the UK and the Immigration Skills Charge must not be passed on to the worker.  The Immigration Skills charge does not apply to employment for less than six months. Employers do not have to pay the skills charge for the worker’s family members who are not themselves migrant workers in the Tier 2 (General) or (Intra-Company Transfer) routes.
 
When considering recruitment from outside the European Economic Area (EEA) and Switzerland, employers will now need to factor in this additional charge that cannot be passed onto the employee.
Statement of changes - 180 days residence requirement for ILR as a PBS dependent
 
The requirement to have had absences from the UK of no more than 180 days per year is being extended to partners of the points based system migrant. To ensure that this requirement does not have a retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11th January 2018 will count towards the 180 days. Where the partner does not meet the above rules they can apply for an extension of leave. However it would appear that practically this is all ready having an adverse effect on dependents, as they are unable to qualify for indefinite leave to remain.
 
This will inevitably cause additional hardship to the points based dependents and perhaps it will be worth them checking to see whether they fall foul of this new requirement so that they are not caught off guard when it is time for them to apply for indefinite leave to remain.
Does the Ireland Act 1949 protect Irish nationals living in the UK?
 
In June 2017 a policy paper was issued in which the UK government advised Irish citizens that they do not need to take any steps to protect their entitlements and that a person living in Northern Ireland can choose to continue to hold an Irish passport only. This was reiterated in August 2017 when the paper referenced s2 of the Ireland Act 1949, which states that Ireland is not a foreign country.
 
However does the Ireland Act 1949 provide the protection stated?
 
To understand that Ireland is not a foreign country, the term appears under s2 of the British Nationality Act 1948 and refers to any country other than the UK, a remaining UK territory, commonwealth country or Republic of Ireland. However the Immigration Act 1971 makes no use of the concept of foreign country. It is those who in s2 of the act are expressed to have a right of abode who are subject to immigration control.
 
Under s1(3) of the Immigration Act 1971 Irish nationals who arrived into the UK on a local journey from within the common travel area are not subject to Immigration control and do not require permission to enter. However arrival into the UK from other than the common travel area is subject to Immigration control, unless you are entitled to enter by virtue of the EU rights currently in force.
 
The problems thus far have had little impact on Irish nationals, as both the UK and Ireland have been part of Europe, so whether an Irish national travels directly on a local journey from within the Common Travel Area or from outside the Common Travel Area has had not bearing on an Irish national settling in the UK. However going forward this inaccuracy will have an adverse effect on Irish nationals, despite the special relationship the UK government have expressed will be maintained after Brexit.
Case law
 
CDS (PBS "available" Article 8) Brazil [2010] UKUT 305 (IAC) (25 August 2010)
 
Funds are “available” to a claimant at the material time if they belong to a third party but that party is shown to be willing to deploy them to support the claimant for the purpose contemplated.
Article 8 does not give an Immigration Judge a free-standing liberty to depart from the Immigration Rules, and it is unlikely that a person will be able to show an article 8 right by coming to the UK for temporary purposes. But a person who is admitted to follow a course that has not yet ended may build up a private life that deserves respect, and the public interest in removal before the end of the course may be reduced where there are ample financial resources available.
 
I cannot see this opening the floodgates to allow individuals to remain indefinite, where they can prove they have established private life but at least until the end of their course where sufficient funds are available.
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