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Cooking up a storm: Tier 2 chefs

 
 
 
  
 
 
       
 
 
 
 
 

UK immigration rules make a distinction between chefs working in takeaway establishments and those working in restaurants.

If the job requires five or more years of relevant experience in a role of at least equivalent status to the one in which the visa applicant is proposing to start, and the job is neither a fast food outlet, standard fare outlet or takeaway outlet, then the position will fall under the chef roles on the Tier 2 Shortage Occupation List.

This has recently been the subject of High Court cases in which chefs argued that it’s arbitrary and unreasonable to exclude from the Shortage Occupation List those working at restaurants that provide high-quality cuisine just because the establishment also, incidentally, happens to offer takeaway service. The chefs argued that all skilled chef roles should be on the Shortage Occupation List, and that the focus should be on the nature of the establishment rather than the fact that it incidentally provides takeaway food.

The Secretary of State argued otherwise and the court agreed, finding that the exclusion of jobs in takeaway, fast food and standard fare outlets from the Shortage Occupation List was justified. The court based its decision on evidence provided by the government that takeaway establishments were generally not associated with the kind of cuisine requiring highly skilled chefs.

In view of the rise in the number of gig economy delivery drivers delivering takeaway orders from fine-dining establishments, this is surely an issue that will rumble on.

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Cooking up a storm: Tier 2 chefs

Tier 2 immigration skills charge – another fee to pay

As part of the government plans to reduce Britain’s reliance on migrant workers, from  April 6, 2017 employers may have to pay an immigration skills charge of £1,000 per employee.

The skills charge will apply to a sponsor of a Tier 2 worker assigned a certificate of sponsorship in the “General” or “Intra-Company Transfer” route and who applies from:

  • outside the UK for a visa
  • inside the UK to switch to this visa from another
  • inside the UK to extend their existing visa

The skills charge does not apply if you are sponsoring:

  • a non-EEA national who was sponsored in Tier 2 before April 6, 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
  • a Tier 2 (Intra-Company Transfer) graduate trainee
  • a worker to do a specified PhD level occupation
  • a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
  • Tier 2 family members (“dependants”)

As the charge applies to the sponsor and not the individual, if a sponsor has paid it in respect of an individual who then seeks to change sponsor, the new sponsor will also be required to pay the levy.

A lower rate of £364 per certificate of sponsorship applies for smaller sponsors and charities. You will usually be considered a small business if:

  • your annual turnover is £10.2 million or less
  • you have 50 employees or fewer

The charge is in addition to all other application fees. Its purpose is to cut down on the number of businesses taking on migrant workers and to incentivize employers to train British staff to fill those jobs.

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Tier 2 immigration skills charge – another fee to pay

Criminal record check for Tier 2 UK migrants

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From April 6, 2017, individuals applying to come to the UK to undertake certain jobs will be subject, along with any adult dependants (over the age of 18 years old) applying with the main applicant, to the requirement under the Immigration Rules to produce a criminal record certificate. The certificate must be produced from any country in which the applicant has been resident for 12 months or more, consecutively or cumulatively, in the previous 10 years.

Effective January 1, 2017, sponsors must inform prospective employees at the point they assign their Certificate of Sponsorship (CoS) that they may become subject to this requirement by the time they make their application. This will enable them to begin seeking certificates where needed at the earliest opportunity, and to lodge a complete application for entry clearance sooner.

Affected job titles are:

  • Dental practitioners
  • Education advisers and school inspectors
  • Further education teaching professionals
  • Health professionals not elsewhere classified
  • Health services and public health managers and directors
  • Medical practitioners
  • Medical radiographers
  • Midwives
  • Nurses
  • Occupational therapists
  • Ophthalmic opticians
  • Pharmacists
  • Physiotherapists
  • Podiatrists
  • Primary and nursery education teaching professionals
  • Probation officers
  • Psychologists
  • Secondary education teaching professionals
  • Senior professionals of educational establishments
  • Social services managers and directors
  • Social workers
  • Speech and language therapists
  • Teaching and other educational professionals not elsewhere classified including Special needs education teaching professionals
  • Therapy professionals not elsewhere classified
  • Welfare professionals not elsewhere classified

The requirement to produce a criminal record certificate already applies to those applying under Tier 1 (entrepreneur) or Tier 1 (investor) and any adult dependant relative of the main applicant in either of these categories.

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Criminal record check for Tier 2 UK migrants

UK announces changes to Immigration Rules

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On November 3, 2016, the UK Home Office announced several changes to its visa policies. The new Immigration Rules, which go into effect on November 24, will primarily affect Tier 2 migrants and nationals of countries outside the European Economic Area (EEA).

Tier 2

The following changes will affect all certificates of sponsorship assigned by Tier 2 sponsors on or after November 24, 2016:

Increasing the Tier 2 (General) salary threshold for experienced workers to £25,000, with some exemptions

  • Increasing the Tier 2 (Intra-Company Transfer) salary threshold for short-term staff to £30,000
  • Reducing the Tier 2 (Intra-Company Transfer) graduate trainee salary threshold to £23,000, and increasing the number of places to 20 per company per year
  • Closing the Tier 2 (Intra-Company Transfer) skills transfer sub-category

The government has not yet announced a date from which intra-company transfer migrants will be liable for the immigration health surcharge.

Non-EEA partners

The government has introduced a new English-language requirement for non-EEA partners and parents. This affects those applying to extend their stay after 2.5 years in the UK on a five-year route to settlement under Appendix FM (Family Member) of the Immigration Rules (introduced in July 2012).

The new requirement will apply to partners and parents whose current leave under the family Immigration Rules is due to expire on or after May 1, 2017.

The English-language requirement applies to most immigration applications. This includes those seeking to enter the UK for employment under the points-based system, and students seeking to enter the UK under Tier 4 of the points-based system.

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UK announces changes to Immigration Rules

UK Visas and Immigration provides premium sponsor licence

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For an additional fee of £200, sponsors will be able to subscribe to a new optional premium service.

This will enable sponsors licensed under Tier 2 and Tier 5 to receive expedited review of their sponsor management system (SMS) applications.

This will help sponsors who are frustrated by the long delays in government responses to certain types of SMS requests, including requests for:

  • Annual allocation of Certificates of Sponsorship
  • One-off request for a Certificate of Sponsorship
  • The appointment of a new authorising officer
  • The appointment of a new Level 1 user

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UK Visas and Immigration provides premium sponsor licence

Crunching the numbers for Tier 2 workers

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The recent case of Maria Tukhas and secretary of state for the Home Office has given sponsoring employers in the UK further guidance about how to calculate an employee’s annual salary in granting points under Tier 2. Click here for the decision.

As clarified in this case, a migrant worker applying for leave to remain must score points in order for a Certificate of Sponsorship to be assigned to them. Points are awarded for a prospective salary.

In this case, the Home Office awarded Ms. Tukhas 30 out of the required 50 points. She was awarded zero points in respect of the “appropriate salary” category. The Home Office argued that the minimum acceptable rate of pay for a 39-hour working week for Ms. Tukhas’ prospective employment was £22,600 a year, yet her Certificate of Sponsorship stated that her salary would be £22,600 a year for a 40-hour week. This equated to £22,035 a year for a 39-hour week, so she did not meet the necessary threshold.

Paragraph 79 of Appendix A of the Immigration Rules states that: “The points to be awarded for appropriate salary will be based on the applicant’s gross annual salary to be paid by the sponsor.”

Ms. Tukhas appealed against the Home Office’s decision. It was held that, other than cases in which an applicant has contracted weekly hours or is paid an hourly rate, the correct salary under the Immigration Rules is an applicant’s gross salary paid by the sponsoring employer (subject to the conditions set out in paragraph 79(i) to (iii), which were not relevant in this case).

There was nothing to suggest that Ms. Tukhas was contracted to work weekly hours or paid an hourly rate. As such, the correct salary was £22,600. No further pro-rating was necessary; Ms. Tukhas, therefore, did meet the necessary salary requirement.

Surely any simplification of this process, such as this case offers, will always be welcome news to employers with employees operating under a Tier 2 visa―as well as to the migrants themselves.

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Crunching the numbers for Tier 2 workers

Changes to the Tier 2 and Tier 5 immigration regime

On March 24, 2016, the UK government responded to the Migration Advisory Committee’s (MAC) review of Tier 2 policy and has announced numerous changes to Tier 2 policy going forward.

For Tier 2 (General) migrants:

  • Minimum salary threshold: increases to £25,000 in autumn 2016 and to £30,000 for experienced workers, while maintaining the current threshold of £20,800 for new entrants.
  • Waiver of Resident Labour Market Test (RLMT): in cases where the migrant will be relocating with a high-value business to the UK or, potentially, supporting an inward investment into the UK.

For Tier 2 (Intra Company Transfer [ICT]) migrants:

  • Single route for ICT migrants: all ICT migrants must qualify under a single route with a minimum salary threshold of £41,500. The Home Office will have closed the Skills Transfer and Short Term visa categories to new applications. Graduate trainees will have their own route with a lower salary threshold of £23,000 with an increased limit of 20 places per company per year.
  • New Immigration Health Surcharge: from autumn 2016, the charge will be extended to all transferees.
  • High earners’ threshold: reduced from £155,300 to £120,000 for migrants looking to stay in the UK for a period between five and nine years.
  • From April 2017, migrants paid more than £73,900 will not be required to have one year’s experience.

For both Tier 2 (General) and Tier 2 (ICT) routes:

  • New Immigration Skills Charge: employers must pay a levy designed to encourage them to invest in training UK employees. The levy is set at £1,000 per year per Tier 2 migrant from April 2017. A reduced rate of £364 per person per year will apply to small and charitable sponsors.

Several other recommendations made by the MAC on January 19, 2016, will not be implemented by the UK government. Accordingly, the government has confirmed the following:

  • ICT overseas service: migrants will not be required to have worked for their overseas company for 24 months, which would have been an increase from the current requirement of 12 months.
  • Tier 2 (General) in-country switching applications from Tier 4 will not be subject to the RLMT.

Finally, it should be noted that the Home Office has introduced the following changes which affect Tier 2 and Tier 5 sponsors:

  • Record-keeping duties: for new migrant employees, sponsors must keep copies of references, Disclosure and Barring Service (DBS) checks, job descriptions and qualifications.
  • RLMT: when a sponsor advertises a vacancy on Universal Jobmatch, it must take a screenshot on the date the vacancy is first advertised.
  • Genuineness test: if the Home Office refuses an entry clearance or leave to remain application because it does not consider the job role to be genuine, it may suspend the Sponsor License to carry out further investigation.

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Changes to the Tier 2 and Tier 5 immigration regime

Changes to UK immigration rules in April 2015: The highlights

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1. National Health Service surcharge

This will apply to most visa applications with effect from April 6, 2015 where the applicant is applying to stay in the UK for six months or more. The cost is £200 per applicant (£150 for Tier 4 students) per year of the visa and is payable at the time of making the initial application. For example, a five-year Tier 2 visa would have a National Health Surcharge of £1,000. If there are family members also coming in on the same visa it will be an additional £1,000 per family member. It is important to note that this surcharge will apply even if private medical care or insurance is in place.

The surcharge does not apply to anyone applying for a visitor visa. However, non-EEA visitors will continue to be fully liable for the costs of any NHS treatment at the point they receive it.

2. Increase in fees for immigration applications

A number of applications are subject to a fee increase from April 6, 2015. UKVI has published a list of Home Office Immigration & Nationality Charges 2015/16, which can be found here.

3. Changes to the clearance application process for overseas applicants applying for a visa for six months or more from outside the UK

Successful applicants will be issued a temporary 30-day visa running from their notified date of travel. On arrival in the UK they will have 10 days to collect, from a specified Post Office location, a Biometric Identity Document (BID) which contains their visa. It will be important for migrants to ensure they collect their BID within 10 days of arrival to avoid incurring a penalty charge of £125.

This change is being phased in over several months from March 2015.

4. Tier 2

a)  Updated minimum salary rates for Tier 2 applications from April 6, 2015:

Per-annum salary thresholds have been increased from between £300 and £1,800.

Criteria Current threshold New threshold
Jobs which qualify for Tier 2 (General). £20,500 £20,800
Jobs which are exempt from advertising in Jobcentre Plus (or JobCentre Online if the job is based in Northern Ireland). £71,600 £72,500
Jobs which are exempt from the annual limit, the 12-month cooling-off period and the   Resident Labour Market Test. £153,500 £155,300
Jobs which qualify for the Short-Term Staff, Skills Transfer or Graduate Trainee   categories (maximum stay either six months or one year). £24,500 £24,800

b)  With effect from April 6, 2015, removal of the 12-month cooling off period for Tier 2 visas issued for up to three months:

This is good news in that it will (i) enable interns to be sponsored and brought back to the UK for a permanent job within a one-year period; and (ii) benefit global businesses that need to send employees to the UK for short time periods.

5. Visitor visa routes reduced from 15 to four

UKVI has redesigned the visitor routes so that there are four: visitor (standard); visitor for marriage or civil partnerships; visitor for permitted paid engagements; and transit visitor.  The change applies to all applications made on or after April 24, 2015.

The visitor (standard) route consolidates the following existing routes: general, business, child, sport, entertainer, visitors for private medical treatment, visitors under the Approved Destination Status (ADS) Agreement with China, prospective entrepreneur, and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board (PLAB) test and the Objective Structured Clinical Examination (OSCE).

6. Removal of some test providers for language tests

There are now only two providers on the list. They replace the current providers from April 6, 2015.  The two new test providers are:

  • Trinity College London (for customers applying in the UK only).
  • IELTS SELT Consortia (for visa customers applying outside or inside the UK).

Tests taken on or before April 5, 2015 with old providers will remain valid until November 5, 2015. Tests taken with old providers from April 6 will not be acceptable with a visa application.

7. Amending the Shortage Occupation List

Changes are being made to the Shortage Occupation List, following a partial review by the independent Migration Advisory Committee. Jobs on the list are exempt from the Resident Labour Market Test and are given higher priority within the Tier 2 (General) annual limit. The new list is valid from April 6, 2015. The list amends the applicable graduate occupations in the health sector, makes changes to roles in the energy industry and reclassifies some existing entries.

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Changes to UK immigration rules in April 2015: The highlights