In January 2010, the Migration Advisory Committee (MAC) made recommendations to the United Kingdom Border Agency (UKBA), including proposed changes to the criteria for foreign workers in the Tier 2 (Intra-company Transferee) category under the points-based system.
Under current regulations, a foreign national must have been employed at a headquarters, branch, or other affiliate office outside the U.K. for at least six months to qualify as a Tier 2 (Intra-company Transferee) employee. The foreign national employee must be paid a salary comparable to a U.K. worker. Further, foreign nationals who currently hold a U.K. work permit valid for five years (including Intra-company Transferees) are eligible for Indefinite Leave to Remain or permanent residence in the U.K.
In response to a perceived loophole in the wage requirement and concerns regarding depression of wages by technology companies who sponsored foreign nationals under Tier 2 (Intra-company Transferee) at lower salaries than U.K. resident workers, MAC has proposed some changes to Tier 2 (Intra-company Transferee) criteria. Based on these recommendations, it is anticipated that in April 2010, UKBA may eliminate Tier 2 (Intra-company Transferee) eligibility for Indefinite Leave to Remain and it may increase the qualifying employment period abroad from six months to twelve months. A change to the qualifying employment period outside the U.K. would not affect the temporary employment of those currently residing in the U.K. as Tier 2 (Intra-company Transferee) employees. However, the proposed changes to permanent residence eligibility would mean that foreign nationals in the U.K. under Tier 2 could no longer automatically qualify for U.K. permanent residence. This is a significant change impacting foreign nationals seeking a path to permanent residence, and those impacted may wish to consider a different category, such as Tier 2 (General) or Tier 1 (General). Gibney will monitor these proposed changes and provide updates as they become available.
National Identity Cards
The UKBA has significantly expanded the national identity card requirement. There are three types of national identity cards issued by the U.K. The first type is for British citizens who use the national identity card to evidence right to work in the U.K. This type may also be used as a passport within the European Economic Area (EEA) and Switzerland. The second type is an identification card for citizens of the EEA or Switzerland who live in the U.K. and is used to confirm identity and eligibility to work. The third type of national identity card was introduced on a limited basis in November 2008 for foreign students and their dependents and for spouses or partners of permanent residents when applying for an extension of stay. Effective January 2010, this type of card was expanded to include all foreign nationals sponsored under the Tier 2 (Skilled Migrant Workers) category and their dependents when applying for an extension of stay in the U.K.
Under current system, when applying for an extension of stay, foreign nationals must make biometrics appointments to capture fingerprints and photographs. The identity card is granted upon approval of the extension application. The card confirms the foreign national’s nationality, identity, and immigration status, and their right to work or study in the U.K. At present, the national identity card requirement does not affect foreign nationals who settle in the U.K. or who are permanent residents.
The UKBA implemented the identity card requirement for Tier 2 (Skilled Migrant Workers) ahead of schedule. The large number of impacted individuals has caused significant delays in the processing of extension of stay applications, known as Further Leave to Remain in the U.K. There are typically two ways to file an extension of stay application in the U.K.: by mail or by making a premium appointment at the UKBA. There are very few premium appointments currently available, and the UKBA recently reported that the earliest appointment dates are in late March 2010. As a result of the unavailability of premium appointments, some foreign nationals are filing their extension applications by mail. This can restrict travel for six to eight weeks or longer because a passport must be submitted with the application. One option for foreign nationals who need to extend their stay and who also need to travel may include filing for a U.K. entry clearance at a British Consular post in their home country. Additionally, Gibney is monitoring the availability of premium processing appointments for its clients.
Due to anticipated delays in processing, Gibney encourages clients to initiate applications to extend stay in the U.K. well in advance of status expiration dates in order to evaluate the best options for foreign national employees and to ensure ongoing compliance.
If you have any questions regarding this alert, please contact your designated Gibney representative, or email immigrationalerts@gibney.com.
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This immigration article is provided as general information for clients and friends of Gibney, Anthony & Flaherty, LLP. It does not constitute, and should not be construed as, legal advice. The contents of this article may be considered attorney advertising in some states.