Updates to the Tier 2 and 5 guidance for sponsors

As usual, the Home office updates its rules on regular basis.

This time a guidance its Tier 2 and 5 sponsors .
The new version applies to sponsor licence applications made, and certificates of sponsorship assigned, on or after 18 July 2018.

Some of the key changes are:
Fees and refunds

Application fees for sponsor licence applications and certificates of sponsorship will not be refunded if a sponsor withdraws an application once consideration has begun (paragraph 1.15).
In the previous update to the guidance in January 2018, sponsors were placed under a new reporting duty. They now have to report within ten working days if the size of the sponsor’s business changes from a small to a medium/large company or vice versa. The change was necessitated by the Immigration Skills Charge (ISC) applicable to a sponsored worker assigned a certificate of sponsorship on or after 6 April 2017 in the Tier 2 General or Intra-Company Transfer categories. This updated guidance contains a further reminder to tell the Home Office if the size of the business changes, so that the respective ISC can be correctly levied (1.16).
Again on the Immigration Skills Charge, refunds will be issued for “all whole unused 6 month periods of leave” except where the worker leaves their post during the first year of employment. In that case, no refund is made in respect of that first year (1.23).
The guidance also confirms that that the Immigration Skills Charge does not apply to Tier 2 migrants seeking to extend their leave to remain with the same employer in the same role, who made their initial application to switch from Tier 4 after 6 April 2017 (1.18).

Doctors and nurses

As of 6 July 2018, medical practitioner and nursing occupations (SOC codes 2211 and 2231) have been excluded from the Tier 2 (General) annual quota. To align with this relaxation of the rules, doctors and nurses have been added to the list of people to whom an unrestricted certificate of sponsorship may be assigned (29.4)
The Occupational English Test has been added to the list of acceptable tests for nurses proceeding towards registration with the Nursing and Midwifery Council (15.18).

Resident Labour Market Tests

Referencing Appendix D paragraph 2K, employers must now provide information about settled worker applicants who do not take up the job or whose applications are rejected. For example, the employer must provide interview notes or other documentation which show the reasons why they have not been employed.
A paragraph has been added and surrounding paragraphs renumbered to reflect that the fact that established researchers at a Higher Education Institution or Research Council are exempt from the RLMT process (28.11).

Also of note are detailed guidance on rates of pay for new entrants (26.4 and 26.8), further clarification on making affidavits relevant to the Intra-Company Transfer category (8.2) and detailed notes on how to correctly certify a document (8.3).

Restrictions on Croatian workers to expire in June 2018

The current registration requirements for Croatian workers will expire on 30 June bringing their rights to work in Britain in line with other EU citizens.
Published 19 March 2018

Immigration Minister Caroline Nokes made the announcement in a Written Ministerial Statement to Parliament.

Legally, the UK could only extend the controls for a final 2 years if there was clear evidence that removing the controls would lead to a serious labour market disturbance. The Government has considered the evidence and with unemployment at near record lows, employment of UK nationals at near record highs and the Eurozone and Croatia forecast to grow strongly over the next 2 years, concluded the economic case for an extension could not be made.

When Croatia joined the EU in 2013, the UK and other member states were able to restrict the access that Croatian citizens had to their labour markets for a maximum of 7 years. The UK is one of a few EU countries (Austria, Slovenia and the Netherlands) which applies such measures. The restrictions have meant that, unless an exemption applied, Croatians needed permission from the Home Office to work in the UK.

Immigration Minister Caroline Nokes said:

This decision has not been taken lightly, but after careful consideration, we have concluded that there is not enough evidence to satisfy the legal requirements to extend the controls for the final 2 year period.

Net migration of EU citizens has fallen in the last year by 75,000 and since joining the EU in 2013 only around a few thousand Croatians have moved to the UK. Estimates suggest there are below 10,000 Croatian in the UK and by comparison, in 2009 at the same point of transitional controls for Romanian and Bulgarian workers there were around 57,000 Romanians and 35,000 Bulgarians living in the UK, according to the Office for National Statistics.

The time-limited restrictions to member states’ labour markets were provided for under the Treaty of Accession 2011 between Croatia and the EU and can be applied for five years, plus an additional two years if required to protect the member state’s labour market from serious disturbance.

Under the UK’s application of the restrictions, Croatian partners and spouses of British nationals or other nationals settled in the UK are exempt, as are Croatian citizens who have worked in the UK for 12 months with the appropriate authorisation.

Home Office Softens its Stance on Retained Rights of Residence fro non EEA national

Baigazieva v Secretary of State for the Home Department [2018] EWCA Civ 1088 (20 April 2018)

In this case the Home Office extraordinarily conceded that for a third country national to retain residence rights in the UK under article 13(2)(a) of the Citizens’ Directive (2004/38/EC) as a former spouse of an EEA national, the EEA spouse must have resided in the UK until the date of commencement of divorce proceedings. However, it is not necessary for the EEA spouse to have resided in the UK until the divorce is granted. Since the concession is significant, it is in the public interest for it to be recorded in a judgment of the Court of Appeal so as to promote uniformity in retained rights cases. Baigazieva was from Kyrgyzstan. She appealed UTJ Bruce’s decision of September 2017 where it was determined that she had not retained a right to reside in the UK as the former spouse of an EEA citizen. Singh LJ explained that the appeal concerned the correct interpretation of regulation 10(5) of the Immigration (European Economic Area) Regulations 2006. The earlier regulations were replaced by the Immigration (European Economic Area) Regulations 2016 but that transition did not impact upon the outcome of the present appeal. Baigazieva’s case was based on article 13(2)(a) of the Directive because prior to the commencement of divorce proceedings her marriage had lasted at least three years including one year in the host member state.

The Home Office took the position that UTJ Bruce erred in thinking that to retain a right of residence it must be demonstrated that the former EEA spouse exercised treaty rights as a qualified person until the divorce itself because it sufficed to show that the former EEA spouse exercised treaty rights until divorce proceedings were initiated. The framework for the retention of residence rights has been addressed in numerous judgments. The Court of Appeal’s reference in NA (Pakistan) [2014] EWCA Civ 995 resulted in the ruling in NA (Pakistan) (C-115/15, ECLI:EU:C:2016:487, see here) where the CJEU took the view that the qualified person EU spouse must reside in the host member state “until the date of the commencement of divorce proceedings” for the non-EU spouse to be in a position to claim retention of residence rights under article 13(2)(c) which concerns victims of abuse. It was not held that it is necessary for the EU spouse to reside in the host member state until the divorce is itself granted (a decree absolute in the present jurisdiction). Despite the official concession, the change has not yet been incorporated into the retained rights guidance (version 3.0) which still insists on a decree absolute as an “end of relationship” document.

Lord Justice Singh

The Court of Appeal agreed with the written submissions made by the Home Office and found no reason to make any further reference to the CJEU for a preliminary ruling. The government conceded that no principled basis exists for concluding that the CJEU’s reasoning in NA regarding article 13(2)(c) should not also apply to persons relying on article 13(2)(a) of the Directive. Some tension emerges in different parts of the NA judgment but overall the CJEU distinguished between the point at which the right to reside was retained pursuant to article 13(2), namely the event of divorce, and the criteria that had to be met for the retention of the right, i.e. the criteria set out in article 13(2)(a) to (d). To identify the commencement of divorce proceedings as the point at which to demonstrate qualified person status is consistent with article 13(2)(a), which makes reference to the marriage lasting for at least three years “prior to initiation of the divorce”. The distinction between the time when the right is retained and the criteria to be satisfied for retention provided a complete answer to the decision of the UT in Baigazieva’s case.

Baigazieva stressed that it was sufficient to provide evidence of her spouse’s status as a qualified person when divorce proceedings were commenced. Therefore, it was not necessary to provide further evidence confirming such status until the date of the decree absolute.

UTJ Bruce’s findings rested on a three-pronged analysis whereby she (i) relied on the reference in regulation 10(5)(a) to the status of a family member of a qualified person ceasing “on the termination of the marriage”, (ii) cited Diatta v Land Berlin (C-267/83, ECLI:EU:C:1985:67) to recall “there must logically come a point when rights of residence that were once derived become retained”, and (iii) considered that the initiation of divorce proceedings does not provide “a sufficiently clear basis upon which to confer a permanent right of residence”.

On the second point the UT found it difficult to understand why Baigazieva would need the protection of article 13(2)(a) if she continued to enjoy the benefits of article 7(1) as a family member. On the third point UTJ Bruce fell into the trap of gravitating towards the hypothetical case of a couple who separate but reconcile later. The Home Office submitted, in line with its complete answer approach, that the reference in regulation 10(5)(a) to family member status ceasing “on the termination of the marriage” and the ratio in Diatta are consistent with the CJEU’s judgment in NA. Singh LJ put the point in the following way:

14. … On this analysis, it is not a question of the third country national “needing” to rely on article 13(2) while she can still rely on article 7(1). On this analysis, it is accepted that article 13(2) does not take effect until the point of divorce. However, this does not mean that the third country national has to show that the qualified person status of her former spouse continued up until that point.

Therefore, UTJ Bruce had been wrong to think that the initiation of divorce proceedings was an insufficiently clear juncture at which to allow the retention of residence right to occur. She had incorrectly conflated the right of residence with the criteria for retention. Similarly, there was no great evidential difficulty in determining whether divorce proceedings had been initiated because this is a simple question of fact to be determined on the evidence of an individual case. It was therefore abundantly clear on any view that regulation 10(5) not only faithfully transposed article 13(2)(a), but that it also captured more clearly the distinction to be drawn within the meaning of the ruling in NA.

These conclusions were also harmonious with the result in the Irish case of Singh (C-218/14, ECLI:EU:C:2015:476) on which Baigazieva relied and also the treatment of that authority by the Court of Appeal in Ahmed [2017] EWCA Civ 99. The analysis was also consistent with the decision of the Irish High Court in Khalid Lahyani v Minister of Justice and Equality [2013] IEHC 176.

Comment

Retained rights of residence reflect an intriguing aspect of EU free movement law and people will no doubt suffer even more in the future because of the uncertainties posed by Brexit. Baigazieva did not claim a history of domestic violence. The outcome in this case may be a sizeable concession by the government but there is a lot more to things than meets the eye because the requirement to commence divorce proceedings at all is rather onerous and inevitably impacts harshly on female victims of domestic violence who may be pregnant at the material time and may have other children to care for in any event. The unavailability of legal aid is another inhibiting feature in such cases.

Overall, it is heartening to learn that the Home Office is being sensible and helpful by softening its stance on retained rights of residence. On the other hand, there are strong indications that the law of free movement took a wrong turning in NA when the CJEU ruled that a pregnant Pakistani victim of domestic violence with two young children must commence divorce proceedings in order to be able to have retained a right of residence. Leading experts condemned the errors made by the CJEU in NA and the court’s excessively literal analysis of the aims attributed to EU legislation was dubbed nothing short of “absurd” and “shameful” because it created the colossal anomaly of facilitating the expulsion of victims of domestic violence who, unlike NA, do not have children.

Finally, even in the draft immigration rules known as Appendix EU contained in the EU Settlement Scheme which will become fully operational on 30 March 2019, the concept of the termination of the marriage or civil partnership hinges on “the date on which the order finally terminating the marriage or civil partnership is made by a court”. Therefore, in addition to the omission in the retained rights guidance, it seems that the emollient effects of this useful judgment have not found their way into mainstream decision-making just as yet.
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