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Eversheds Education HR e-briefing: Immigration Update

    • Education - Briefings

    30-06-2013

    Recent developments

    The Home Office (previously known as the UKBA) are continually introducing changes to the immigration rules and guidance. Some of the most interesting and relevant changes are detailed below and will have an effect depending on whether you are, or are looking to become, a Tier 2, 4  or 5 sponsor licence holder.  

    Absence and Indefinite Leave to Remain

     

    For those seeking indefinite leave to remain in the UK, absences from the UK of up to 180 days per year are acceptable. This is retrospective and so previous absences must be under this threshold. The rules may change on this again in the future so this should be monitored. Migrant workers looking to apply for settlement should be cautious about the length and reasons for any absences from the UK.

     

    Discrimination and recruitment

     

    Employers should ensure that they do not inadvertently subject non-EEA nationals to unlawful discrimination in their recruitment processes. In an influential case involving Osborne Clarke, it was held that there had been indirect race discrimination where the employer conducted an initial sift of applications based on immigration status and refused to consider applications from candidates requiring additional approvals to work in the UK. Applications should be considered on merit and only at an appropriate juncture in the recruitment process should immigration status be considered. It should not be assumed that a non-EEA national will not have or be able to obtain the right to work in the UK. We are currently receiving a number of queries on this issue from clients and can provide further clarity if required.  

     

    Tier 4 credibility interviews

     

    The Home Office conduct their own interviews to assess whether students’ genuine intention is to come to study in the UK. These interviews have resulted in a large number of students being refused entry into the UK on grounds of genuinicity i.e. the Home Office have not been satisfied that the students have a genuine interest to study in the UK. Research undertaken suggests that these interviews have created subjective and unpredictable standards that may put students off from applying to study in the UK.  Tier 4 sponsor licence holders should make suitable checks and ensure the students they wish to accept have shown a genuine desire to study at their particular institution. A more detailed briefing will follow shortly on this topic. If any institution has experiences they can share on an anonymous basis, they would be gratefully received.    

     

    Resident Labour Market Test (RLMT)

     

    Jobs advertised under Tier 2 must always be advertised in at least two different types of media. Tier 2 guidance sets out exactly what types of media are acceptable. The Universal Jobmatch requirement will be mandatory in most cases (unless an exemption applies) and jobs should be advertised for a period of 28 days. Job advertisements must include the specified information. You should ensure that you keep all necessary documents to show compliance with the RLMT such as interview notes, short list of candidates and contents of adverts (including screen shots).

     

    Re-tender announced for providers of secure English language tests

     

    The Home Office in June 2013 will launch its re-tendering exercise for approved secure English language test providers. This exercise will have an effect on secure English language tests for Tiers 1, 2 and 4 of the Points Based System as well as spouses and partners of British citizens and persons settled in the UK. Any changes to the current list will not take effect until April 2014. Some of the requirements to be met by those who wish to apply to become a test provider include i) must have the capacity to provide at least 2,400 tests per year; and ii) must have established test centres in at least 40 different countries.     

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