Immigration & Recruitment Graeme Ross – Immigration and Compliance Manager graeme.ross@admin.cam.ac.uk; (01223 7)65554

Aims To provide an overview of the Points-Based Immigration System and the requirements of obtaining a visa under this system To help you understand the requirements of the Resident Labour Market Test (RLMT) when advertising To provide guidance on the correct procedures during the recruitment process To provide guidance on the record keeping and reporting duties for sponsored individuals

The Points-Based Immigration System Nationals from outside the European Economic Area (EEA) are subject to immigration control and the Points-Based System (PBS). PBS was implemented in 2008 and it replaced 80 individual schemes, including ‘work permits’. If an individual has a job offer in the UK but has no ties to the UK (e.g. marriage, ancestry), it is usually the only route through which they can obtain the right to work in the UK. The University is licensed to sponsor individuals under: Tier 2 (General) – skilled workers Tier 5 (GAE) – sponsored researchers (supernumerary) To obtain a points-based visa, individuals must accumulate a minimum number of points which are awarded against such factors as qualifications, prospective earnings and English language competence. The employer must also undertake very strict recruitment practices.

Immigration and Recruitment Throughout the key stages of recruitment, and beyond, there are immigration considerations and implications. Defining the vacancy Advertising Selection process Pre-employment checks Checks throughout employment

Tier 2 – skill level requirements For a vacancy to be eligible for sponsorship under Tier 2 (General), the role must meet minimum skill level requirements. NQF level 6 / degree level or above Skill level exceptions: Croatian nationals – can be appointed to a vacancy defined at skill level NQF 4 / Diploma or above. Current Tier 2 visa holders issued a visa before 13 June 2012 - can be appointed to a vacancy defined at skill level NQF 4/Diploma or above (exemption ending in July 2018)

Tier 2 requirements – SOC Codes The Standard Occupational Classification (SOC) codes: https://www.gov.uk/guidance/immigration-rules/immigration-rules- appendix-j-codes-of-practice-for-skilled-work Any vacancy that will be filled by an individual requiring sponsorship through Tier 2 must be defined by a relevant, eligible SOC Code. It is more important to choose the SOC code containing the job description that best matches the role you want to recruit for, even if the job title you use is slightly different to the one given in the Codes of Practice. Guidance from UKVI states that the majority of the role description must fit into the SOC Code. Ultimately, it is your decision which SOC Code you use.

Tier 2 requirements – SOC Codes The following PhD level SOC codes are suitable for Tier 2 and are most commonly used by the University: 2111 Chemical Scientists 2112 Biological Scientists and Biochemists 2113 Physical Scientists 2114 Social and Humanities Scientists 2119 Natural and Social Science Professionals not elsewhere classified 2311 Higher Education Teaching Professionals Roles within the University: Research Assts./Assoc. – can use 2111, 2112, 2113, 2114 or 2119. University Lecturers/Professors – must use 2311. Note: There is no requirement for a job skilled to a particular skill level (i.e. degree level or PhD level) to actually hold that qualification. It simply means that the work the person will do is skilled to that level.

SOC codes – Salary Salary considerations for a Tier 2 visa: The ‘absolute minimum’ rate; and The minimum rate for the applicable SOC Code; and Whether the individual will be classed as a ‘new entrant’ or an ‘experienced’ worker. You must pay the higher of either the absolute minimum (which is £20,800 for ‘new entrants’ or £30,000 for ‘experienced workers’) or the SOC Code minimum: SOC Code ‘New entrant’ rate ‘Experienced’ rate 2111 £21,600 £28,000 2112 2113 2114 2119 2311 £25,700 £32,300

SOC codes – ‘new entrant’ and ‘experienced’

Salary rates – case study exercise For each case: Are they ‘new entrant’ or ‘experienced’? What is the minimum salary you must pay them (assuming working full time)? A 26 year old living in Brazil, made a job offer for a research post (SOC 2119) assigned a CoS for 2 years A 30 year old, in the UK holding a Tier 4 visa, made a job offer for a research post (SOC 2112) assigned a CoS for 3 years A 35 year old, in the UK holding a Tier 2 visa issued on 5 May 2015, made a job offer for a lecturer post (Code 2311), assigned a CoS for 4 years A 24 year old, holding a Tier 4 visa, made a job offer for a research post (SOC 2119) assigned a CoS for 4 years

Tier 2 requirements - Resident Labour Market Test (RLMT) If you wish to recruit outside of the EU, the advert must be compliant with the RLMT unless an exemption applies. This a mandatory requirement if you wish to apply for a Tier 2 visa. Compliance Team has created a ‘Guide to the RLMT’ for those who undertake recruitment. Advertising Advert must contain job title, skills/knowledge/experience/qualifications, main duties, salary package, location, closing date. Advert needs to be placed for 28 days in at least two approved media (one must be Universal Jobmatch if non-PhD level and salary <£73,900). University Job Opportunities and jobs.ac.uk are approved media. Screenshots / screen prints must be taken of adverts. These must contain the name of the website, the URL and the closing date for applications.

RLMT - Common pitfalls For jobs.ac.uk – service standards provide for 48 hours to publish an advert. Always factor this into your advertising i.e. advertise for 30 days. For Universal Jobmatch – always put advert closing date in the main body of the advert, as it will not be shown separately (as it does in Job Opportunities). All required details must be in the body of the advert, not just in the further particulars. Please ensure further particulars are linked in both adverts. Check all adverts the day they go online. Where an advert falls short of 28 days, in order to meet the requirements of the RLMT you can re-advertise for a minimum of 7 calendar days. Both sets of adverts must then have been advertised cumulatively for a minimum of 28 days. Note: If the role is below PhD or degree level and/or the salary is below the minimum requirements, there is no need to advertise for 28 days.

RLMT - Salary and Allowances Salary offered must always be within the salary range that was advertised. Any ‘guaranteed allowances’ that the individual will be paid must be advertised, otherwise the advert will not be compliant with the RLMT. Recruitment Incentive payments are not guaranteed and therefore do not need to be advertised. Market Pay and Advanced Constitution Supplements (ACS) are guaranteed and must be advertised using the wording below: ‘In exceptional circumstances, it may be possible to offer a supplement to the salary range stated for this role of up to X%/X amount for X period. Any such supplement would be awarded on the basis of a demonstrable history of exceptional achievement and is entirely at the discretion of the University.’ For Professorial staff (and certain high profile appointments) we can use the phrase ‘competitive salary’ within the advert.

RLMT exercise

Selection process – general guidance In all situations, even if you have not advertised for 28 days, applicants must not be eliminated at either long-list, short-list or interview stage on the basis that they do not have the right to work in the UK. The only stage of the recruitment process where right to work can be considered is at offer stage. This cannot be done earlier because: This could amount to indirect discrimination on the grounds of national origin Those currently without right to work may be able to obtain it through another immigration route It is not a foregone conclusion that those with the right to work will be successful in all the intermediate stages in the recruitment process

Tier 2 requirements – selection Posts which are below PhD level If a suitably qualified settled worker is available (i.e. if a candidate with the right to work meets all of the essential criteria) you are required to appoint them to the vacancy. Posts which are PhD level You may select the best candidate for the vacancy. In both cases, selection process documents must be submitted with each CoS application for retention by the HR Division, including applications of all those who have been shortlisted (in the medium received), notes of interviews and reasons for the decisions taken.

Tier 2 requirements – Certificate of Sponsorship (CoS) Once a job offer has been made to an individual who will require a Tier 2 (General) visa to gain right to work in the UK, the first step for the department/institution is to request a CoS from the Compliance Team. The maximum length for a Tier 2 CoS is 5 years. There is no minimum length. If you appoint an individual on a CoS that is valid up to 3 years, the visa will cost the individual £587 outside the UK and £677 inside the UK. If you appoint an individual on a CoS that is valid for between 3 years and 5 years, the visa will cost the individual £1,174 outside the UK and £1,354 inside the UK. The NHS surcharge will also be applied at a cost of £200 per year the visa is valid The cost of the CoS will remain the same in either case. Departments/institutions should make a decision on the duration of the required CoS on the basis of the length of the contract and the cost of the visa to the individual.

Tier 2 Timetable Restricted CoS applications must be submitted to the Compliance Team on the last Friday of each month for submission to the UKVI by the 5th of the month for consideration on the 11th of that month. Unrestricted CoS can be submitted at any time and are processed in date received order. Individuals applying inside the UK for a Tier 2 extension, cannot apply for a visa more than 3 months before their current Tier 2 visa expires.

CoS application forms Tier 2 New Appointment Use this CoS application form for all new Tier 2 appointments. This can include new starters from abroad, but also current employees who are switching immigration category or those making a change of employment application. Download from the HR Immigration webpages: http://www.hr.admin.cam.ac.uk/hr-services/immigration/forms-guides- and-checklists Send to the: hrnewappointmentteam@admin.cam.ac.uk

CoS application forms Tier 2 Extensions Use this CoS application form for all extensions to current Tier 2 visas. This form has been streamlined as most of the required information is already held centrally by HR. Less duplication for Departments. Download from the HR Immigration webpages: http://www.hr.admin.cam.ac.uk/hr-services/immigration/forms-guides- and-checklists Send to the: hramendmentteam@admin.cam.ac.uk

Tier 5 GAE overview The Tier 5 (GAE) visa can only be used by the University to bring sponsored researchers or visiting academics into the UK. However, the individual can be our employee and can be paid by the University. However, there are some very significant restrictions: Tier 5 sponsored individuals must be supernumerary. They cannot fill a genuine vacancy. The funding/salary they receive must meet national minimum wage requirements. Cannot be self-funded The visa is valid for a maximum of 24 months and cannot be extended.

Tier 5 CoS process Similar process to Tier 2 CoS applications. CoS application form must be submitted to the Compliance Team no more than 3 months before the individual is due to start work. All Tier 5 appointments/extensions use the same form. Download from the HR Immigration webpages: http://www.hr.admin.cam.ac.uk/hr- services/immigration/forms-guides-and-checklists Send to the: hrnewappointmentteam@admin.cam.ac.uk Leavers - All Tier 5 are on CHRIS for monitoring purposes. You must make them a leaver in a timely fashion.

Tier 4 working restrictions All students holding a Tier 4 visa are subject to restrictions on their ability work, however the University imposes even greater restrictions on its own students. Also, cannot be self employed. New legal restrictions from 16 May 2014: Before employment starts, employers must obtain and retain copies of the student’s academic term and vacation dates. Students who have no sponsor (i.e. are not currently enrolled on a course of study) are not permitted to work at all. Tier 4 ‘working conditions’ process - HR35 must be submitted to HR Compliance prior as soon as offer is made. We advice max. number of hours. Guidance available online: http://www.hr.admin.cam.ac.uk/hr- services/immigration/visas-and-right-work-uk/time-limited-right-work/tier-4- general-working

Right to Work checks The University has a legal responsibility to ensure that all its employees and workers have the right to work in the UK before the employment commences. Candidates invited to interview should be asked to bring evidence of their right to work with them (original documents) for checking/copying. Checking documents: No requirement to take a copy of the front cover of the passport Passports: photo page and visa page – each one must be copied, then written declaration: “I confirm this is a true copy of the original, taken on [date and time]. Must be completed in the ‘presence of the holder’. Both sides of BRP. 30 day entry vignettes – can be accepted if valid. Compliance will chase for BRP. For pre-employment checks, we cannot accept a valid visa inside an expired passport as valid right to work evidence. This does not affect current employees.

Right to Work checks Where right to work is being checked on the first day of employment, there must be documentary evidence that RTW was taken before work was begun – e.g. HR7 or HR23 Welcome Letter. It is vital that the time the check was made is noted on the RTW copies. Appointments are not processed until RTW is received by the RA team. See http://www.hr.admin.cam.ac.uk/recruitment/stage-4b-pre- employment-checks/right-work for further details, including which documents demonstrate RTW.

Visa extensions All UK employers are required to perform a check on current employees who hold a time-limited visa at the point their visa expires. Departments notified by the Compliance Team three months before an individual’s visa will expire. The Compliance Team requires evidence of an in-time application: Postal applications: Copy of Visa application form and proof of postage Online applications: Copy of the online application, signed and dated, and proof of postage In-person (Premium) applications: Copy of the online application, signed and dated, and the e-mail confirming appointment date Once the Compliance Team have received the required evidence, the contract process can begin without the need to wait for the new BRP to be issued.

Right to Work Penalties IAN Act 2006 & Immigration Act 2016 Civil penalty: Negligent right to work practices Criminal penalty: Knowingly or having ‘reasonable cause to believe’ you have employed illegal migrants

Penalties cont. Civil penalty £20,000 per illegal employee Downgrading or loss of Sponsor Licence - 700 Tier 2/5 staff immediately made redundant and visas revoked. Criminal ‘Knowingly employing’ or having ‘reasonable cause to believe’ an employee is working illegally – 5 year sentence and unlimited fine.

Tier 2 & 5 Reporting Duties In addition, to hold a sponsor licence, the University must adhere to the required reporting duties. Most relevant for departments are: If the sponsored individual started employment later than the date specified on the CoS If the sponsored individual leaves employment early (either resignation or dismissal) If there are any contractual changes (change of job title, duties, salary, location) If they move to another immigration category (e.g. Indefinite Leave to Remain) In all of the above cases, departments must notify the Compliance team of these changes immediately. We have very strict timescales for reporting changes to UKVI. This includes Tier 5.

A final thought…. “I fully recognise that the Immigration Rules, which have to deal with a wide variety of circumstances, will never be “easy, plain and short.” But the aim should be that the Rules should be readily understandable. That is not the case at present.” Lord Justice Underhill, Court of Appeal, 12 November 2014

Questions