1. Immigration & Recruitment
Graeme Ross – Immigration and Compliance Manager
( )65554

2. 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 explain why pre-employment checks are required and how to undertake them correctly
To provide guidance on the strict record keeping and reporting duties for sponsored individuals
An introduction to other relevant visa routes

3. 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

4. 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.

5. Tier 2 requirements – SOC Codes
If you are looking to recruit outside the EU, and you intend to sponsor an individual under Tier 2, the job must meet the minimum skill level requirement for a Tier 2 visa. The minimum skill level is degree level or above.
The Standard Occupational Classification (SOC) is a method the Government uses for classifying jobs according to their titles and activities. 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
For help choosing non-PhD level SOC Codes, please contact the Compliance Team

6. Tier 2 requirements – SOC Codes
It is 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 different to the one given in the Codes of Practice.
Note: There is no requirement for those working in a PhD level SOC code to actually hold a PhD. It simply means that the work the person will do is skilled to that level.
Research Assistants – can use 2119.
Research Associates – most commonly use 2119.
University Lecturers – must use 2311.
Jobs in PhD level SOC Codes have more ‘benefits’ for departments and for the individual holding the Tier 2 visa.

7. SOC codes – Salary
To be eligible for a Tier 2 visa, the salary can never be below £20,800 for ‘new entrants’ or £25,000 if they are an ‘experienced’ worker.
A second minimum salary level will apply depending upon which SOC Code is used and, within that, whether the individual is classed as a ‘new entrant’ or ‘experienced’ worker.
SOC Code
‘New entrant’ rate
‘Experienced’ rate
2111
£21,000
£27,200
2112
2113
2114
2119
2311
£25,000
£31,400

8. SOC codes – Salary (cont.)
New entrant
Any individual aged 25 and under; or
Any individual, regardless of age, switching from Tier 4 to Tier 2 assigned a CoS of 3 years or less.
Experienced
Any individual aged 26 or over; or
Any individual applying for a Tier 2 visa which will be valid for more than 3 years and 1 month, even if switching from Tier 4.

9. 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 <£72,500).
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.

10. 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 £20,800, there is no need to advertise for 28 days.

11. 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.

12. RLMT exercise

13. 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

14. 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.

15. 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 £564 outside the UK and £651 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 £1,128 outside the UK and £1,302 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.

16. 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.

17. 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: and-checklists Send to the:

18. 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: and-checklists Send to the:

19. NHS Surcharge
Took effect from 6 April 2015 for all new visa applications. Not applied retrospectively.
From this date, applications for a visa made by staff and their dependants will cost an additional £200 per person per year that their visa is valid, on top of the visa application fee. The full cost must be paid by the individual at the point of application.
The only exceptions to paying the surcharge will be where:
An individual is applying for a visitor visa; or
A non-visitor visa valid for 6 months or less
Applies to all new visa applications, whether in-country or outside. Does not apply to Indefinite Leave to Remain applications.
Departments/institutions may choose to reimburse individuals for the surcharge on a case-by-case basis as appropriate in the circumstances (as is the case with visa costs). This would be a taxable benefit and would need to be managed through the P11D process.
Further guidance, including links to detailed UKVI guidance, can be found on the HR Immigration webpages.

20. NHS Surcharge cont.
Departments/institutions may choose to reimburse individuals for the surcharge on a case-by-case basis as appropriate in the circumstances (as is the case with visa costs). This would be a taxable benefit and would need to be managed through the P11D process.
Further guidance can be found on the UKVI webpages:

21. 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.

22. 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: services/immigration/forms-guides-and-checklists
Send to the:
Leavers - All Tier 5 are on CHRIS for monitoring purposes. You must make them a leaver in a timely fashion.

23. 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 and supporting documents must be submitted along with the right to work check and new appointment paperwork.
Guidance available online: services/immigration/visas-and-right-work-uk/time-limited-right-work/tier-4- general-working

24. 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.

25. 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 employment-checks/right-work for further details, including which documents demonstrate RTW.

26. Visa extensions
In place of annual right to work checks, all UK employers are now required to perform a check on current employees who hold a time-limited visa at the point their visa expires. The check is completed through the Home Office ‘Employer Checking Service’ (ECS) by the Compliance Team.
Departments will be notified by the Compliance Team three months before an individual’s visa will expire. The Department must meet with the individual as soon as possible to discuss their intentions i.e. are they extending their visa, are leaving the University? etc.
The Home Office can take many weeks or months to process visa applications. Under Section 118 of the Nationality, Immigration and Asylum Act 2002, provided an individual has made their new visa application before their current visa expires (an ‘in-time application’), the terms of their current visa are automatically extended, even if the visa expires.
To meet the requirements of this legislation, the Compliance Team requires evidence of an in-time application and a ‘positive’ ECS check.

27. Acceptable evidence of 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 confirming appointment date
In the circumstances where a copy of the application/cover sheet is not available, the Compliance Team can accept a Home Office acknowledgment letter as evidence of an in-time application, provided the letter is dated before the current visa expires.
Once the Compliance Team have received the required evidence and completed a successful ECS check, the contract process can begin without the need to wait for the Biometric Residence Permit (BRP) to be issued.

28. RTW check exercise

29. Tier 2 & 5 Record Keeping duties
To hold a sponsor licence, the University must adhere to the required record keeping duties. Most relevant for departments are:
Contact details for all sponsored individuals
Signed copy of the contract of employment
Absence records (non-PhD level only). University of Cambridge holds and exemption for PhD level roles.
In all three cases, you will receive periodic requests for this information from the Compliance Team.
All other record keeping functions are performed by the Compliance Team.

30. 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.

31. 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

32. Questions