Employing non EEA migrants
What requirements do non-EEA nationals working for EU employers in the UK need to meet?
The ECJ case of Van der Elst established that, provided certain criteria are met, non-EEA nationals working for an EU employer in the EU should be allowed to provide services in another Member State without the need to obtain a work permit.
This means that an established non-EEA employee of an EU company in the EU can come to the UK to provide a service on behalf of the company without a work permit. Entry clearance is mandatory for both visa and non-visa nationals. Entry clearance is issued gratis.
The requirements to be met by the employee are that they:
are lawfully resident in the EU Member State in which the employer is established;
are lawfully and habitually employed by an employer who is temporarily providing a service in the UK;
do not intend to take any other employment;
intend to leave the UK at the end of the period during which his employer is providing the service.
However, it is different question how UK employers can employ a migrant worker from outside of the EEA and in particular:
Demonstrate that they have a ‘genuine vacancy’; and
Satisfy the resident labour market test (‘RLMT’).
Employing non EEA workers
The uK employers must ensure that the individuals they employ have the right to work in the UK.
Some employers apply for a sponsor licence which allows them to sponsor migrant workers to work in the UK in certain roles.
Not all employers will be suitable to hold a sponsor licence and UK Visas and Immigration (UKVI) set out a number of criteria for eligibility. Further details on the sponsor licence process and eligibility can be found on the UKVI website.
The UK operates a points-based immigration system, within which, there are numerous categories (Tiers). This article focuses on Tier 2 (General) which allows employers to sponsor migrant workers to work in the UK within roles which meet certain, prescribed criteria.
There are a number of requirements that employers must meet in order to sponsor a non-EEA migrant worker under Tier 2 (General) of the UK’s points based system. Notably, they must demonstrate that a genuine vacancy exists which cannot be filled by a suitably qualified or skilled settled worker, this includes paying the correct salary rate and advertising the role (where required).
Genuine Vacancy
The Immigration Rules include a list of occupations which are suitable to sponsor a migrant to work in (subject to specific criteria being satisfied). Each occupation is given a standard occupational classification (‘SOC Code’) and includes a list of the types of duties and responsibilities deemed to be appropriate to the particular role as well as suggested job titles. Employers must identify the appropriate SOC Code that corresponds to the vacancy, to sponsor migrant workers under the Tier 2 route.
In order to meet UKVI’s definition of a genuine vacancy, the role which the employer wishes to recruit into must:
Meet all of the requirements of the tier and category in which the role falls:
This includes the minimum salary level set by UKVI for the relevant tier. For Tier 2 (General) this currently means an annual salary of £30,000 per year or the ‘appropriate rate’ attached by UKVI to the particular SOC Code. It also means that the job description for the role must overlap to a meaningful extent with the example job tasks listed within the relevant SOC Code.
Require the job holder to perform the specific duties and responsibilities for the job:
This means that sponsors cannot simply produce an exaggerated job description which mirrors the example duties of the relevant SOC Code. They must require the individual to carry out the duties in practice.
Not include dissimilar and/or lower skilled duties:
All duties listed in the job description must be commensurate with the role. For example, if an employer has a vacancy for a Marketing Director and the job description for the role accords with the appropriate SOC Code but also includes duties such as photocopying and basis administrative tasks, the ‘genuine vacancy’ requirement is unlikely to be satisfied.
Employers must not require essential criterion for the role which are not really needed in practice, in order to exclude other potential applications. An employer who requires the successful candidate to be a French speaker will fall foul of the ‘genuine vacancy’ test if UKVI concludes that this requirement has been included simply to give an advantage to the employer’s preferred candidate, who happens to be able to speak French.
Further, employers must not create roles which are not needed in practice for the purpose of sponsoring an individual to work in the UK.
The Home Office do carry out checks of sponsored workers and would be interested to see that the individual is actually carrying out the role the employer has sponsored them to do.
If UKVI has suspicions about the genuineness of a vacancy, it may require further detailed information. Case workers will pay special attention to applications made in sectors deemed to be ‘high risk’ such as hospitality and care.
Resident Labour Market Test
Unless one of the relevant exceptions applies, employers who wish to sponsor migrant workers under the Tier 2 (General) route must satisfy the resident labour market test (‘RLMT’).
The RLMT is designed to demonstrate that the role cannot be filled by a member of the settled workforce (i.e. an EEA or Swiss citizen or an individual with permission to work in the UK without a requirement for sponsorship).
The RLMT requires employers to advertise the role in two or more acceptable locations from a specific list for a period of 28 days (either consecutively or in two stints).
The vast majority of vacancies must be advertised through the Jobcentre Plus Universal Job Match service as well as one other place. Options include: the website of a professional recruitment organisation; a national newspaper published at least once a week and marketed throughout the UK (or throughout the devolved nation in which the job is located); and the employer’s own website (if they have more than 250 permanent employees or are a multinational organisation).
The advertisement for the role must be in English (or in Welsh, if the job is based in Wales) and must include the following information:
Job title;
The main duties and responsibilities of the job;
The location of the job;
An indication of the salary package or salary range or terms on offer;
The skills, qualifications and experience needed;
The closing date for applications (unless it is part of a rolling recruitment programme when the advert should show the period of the recruitment programme).
If the employer receives an application from a member of the ‘settled workforce’ who meets all of the skills and experience requirements of the role, the employer must select that applicant over a migrant worker who requires sponsorship, even if the latter is more qualified and experienced and more desirable for the role.
For this reason it is essential for employers to create accurate and detailed job adverts to avoid vast numbers of applications from settled workers which it may later struggle to prove are not suitable for the role.
Employers must also keep thorough records to evidence compliance with the RLMT, including:
Suitable copies of the advertisement placed. Different requirements apply depending on where the role has been advertised.
Detailed job description outlining the duties and responsibilities of the post, including the skills, qualifications and experience required.
All applications short listed for final interview, in the medium they were received (i.e. if a CV was received, this should be retained; it will not be sufficient to import details into another format, such as a spreadsheet, unless the original CV is also retained).
The names and total number of applicants short listed for final interview.
Notes from any final interviews conducted.
For each ‘settled worker’ who was rejected, notes which show the reasons why they have not been offered the role.
Documents may be retained in paper or in an electronic format and must be made available to UKVI upon request.
Exemptions to the RLMT
In some circumstances, there will be an exemption from the requirement to carry out the RLMT. These include:
Where the migrant is already working for the sponsor and is applying to extend their leave to continue in the same role;
Where the job appears on the Shortage Occupation List. This is a regularly updated list of jobs in relation to which the Home Office recognises there is a domestic skills shortage;
Where the total annual salary package for the role is £159,600 or more.
Consequences of non-compliance
It is important for sponsors to protect themselves by complying with the requirements for sponsoring migrant workers.
An employer who does not comply with the ‘genuine vacancy’ and RLMT requirements risks causing delay to the sponsorship process or may lose the opportunity to sponsor their ideal candidate altogether, which can have knock-on effects for the business.
If UKVI concludes an employer has committed a serious breach and/or deliberate breach of the rules then it is likely to refuse a sponsor licence application, consider downgrading or revoking an existing sponsor licence.
The revocation of a sponsor licence means the employer cannot sponsor new migrant employees and the leave of any migrant worker currently sponsored by them will be curtailed (to 60 days, or, in the case of any migrant who has been complicit in the breach, with immediate effect). Employers who have had sponsor licences revoked or refused must now wait for six months before making a fresh application, which even then will be rigorously scrutinised on the basis of the historic breaches.
The new settled status scheme for EU citizens and their family members-info letter from Home office
Dear Mr. Brandon Bell,
Today, the Government has set out further details of how the new settled status scheme for EU citizens and their family members will operate as the UK leaves the EU.
In a technical document sent to the European Commission as part of the negotiations, the Government reiterates how the new system will be streamlined, low-cost and user-friendly, with EU citizens consulted on its design.
EU citizens applying to stay in the UK after Brexit will have plenty of time, up to two years after the UK has left the EU, to obtain settled status.
Those applying to stay in the UK after we leave the EU will not have their applications refused on minor technicalities and caseworkers considering applications will exercise discretion where appropriate.
The new system will minimise the documentary evidence required and EU citizens will not be required to provide fingerprints as part of the application process.
Decisions will be based solely on the criteria set out in the Withdrawal Agreement, with no discretion for other reasons for refusal. EU citizens will also be given a statutory right of appeal, in line with their current rights through the Free Movement Directive, if their application is unsuccessful.
The Prime Minister has been clear that safeguarding the rights of EU citizens living in the UK and UK nationals in Europe is the first priority for negotiations and she said last month that an agreement is within touching distance.
Negotiation between the UK and EU is continuing and the next talks will take place this week on 9 and 10 November. We will continue to keep you updated on further progress.
Yours sincerely,
Home Office
Immigration appeal waiting times rise 13%, now take a year on average
No doubt that professional service at Immmigration Tribunals are getting worse ad worse every yea.
Apart from poor and and unprofessional Customer service and employees who work for little salaries give less service then ever, overloaded judges and nervous clerks are additional problem. But more worrying is that the average immigration appeal takes almost 12 months to be resolved, up 13% on the same period last year.
Appeal waiting times continue to rise.
This is despite the fact that less than half as many people now have the chance to challenge Home Office decisions. The number of appeals handled by the immigration tribunal has fallen from around 20,000 to 8,000 – a startling 60% fall – since the Immigration Act 2014 was passed.
Immigration and asylum appeals at the First-tier Tribunal took 51 weeks to be resolved in April-June 2017 – the latest period for which data is available – according to the Ministry of Justice. That represents an increase of seven weeks on the same period last year.
Looking across the whole financial year, first-tier appeals took three months longer in 2016/17 than they did in 2015/16.
There is a silver lining in the figures for asylum appeals specifically. Cases took 29 weeks to be cleared in April-June 2017, compared to 38 weeks in April-June 2016.
We can no longer usefully compare some other categories of appeal. For example, on the face of the statistics “family visit visa” appeals appear to take 194 weeks! But this category, along with “managed migration” and “entry clearance”, is being phased out. There were only four family visa appeals decided in the last quarter, and zero new receipts, so the average is at this point meaningless.
All appeals are now being consolidated under “human rights”, “EEA free movement” or “other”, along with the existing “asylum” heading. These are the only relevant headings to consult in the data.
This change means that only the overall average and the consistent “asylum” category of appeals can be compared over time. Practitioners and clients will find plenty to be concerned about even without a point of reference. EEA free movement appeals take 45 weeks, for example.
All 52 weeks
Asylum/protection 29 weeks
Human rights 60 weeks
EEA free movement 45 weeks
Other (including deportation and deprivation of citizenship) 36 weeks
This would be one thing if appeals were a frivolous shot in the dark. But they in are, in fact, an integral part of the immigration system’s decision making. Almost half (47%) of appeals decided by a First-tier Tribunal judge were allowed in the most recent quarter.
It remains to be seen whether this roughly 50/50 split will be sustained through the rest of the year. If so, it would represent a return to the situation that prevailed a few years ago.
Appeal rights eroded
The First-tier Tribunal received 7,800 cases between April and June 2017. In the same quarter three years ago, it was 19,700. That represents a decline of 60%.
To put that in context: the fall is in the same ballpark as the drop-off in employment tribunal cases following the introduction of fees there.
Employment tribunal fees, which severely restricted access to justice in that field before the Supreme Court struck them down last summer, reduced caseload by 68%.
Receipts have now fallen for the last ten quarters in succession.
Upper Tribunal receipts have also fallen over the period, although the trend is not steady.
What has changed since 2014/15? The Immigration Act 2014, and its 2016 successor, have been brought into force. These have reduced appeal rights and heralded a policy of “deport first, appeal later” (although this summer’s Supreme Court judgment in Kiarie and Byndloss places severe restrictions on the lawful use of that approach, at least in the short term).
As the number of appeals plummets, there has been a consequent fall in the number of cases outstanding (now a mere 43,400). While restricting avenues of appeal is one way to give the appearance of a more efficient judicial system, resourcing that system adequately could achieve much the same thing, with the added bonus of respect for the rule of law.
