Employers need to pay salaries of at least £35,000 a year to retain them
Migrants working here under the Tier 2 (General) visa category of the points based immigration system can apply to settle in the UK permanently once they have been in continuous residence here for five years. Currently these workers have to show that they are paid at the appropriate rate for their occupation in accordance with the relevant Code of Practice. They also have to meet other criteria, including having the requisite ‘knowledge of life’ in the UK and the required level of English language proficiency if they wish to stay here.
Salary threshold
From 6 April 2016, those migrant workers applying for ‘indefinite leave to remain’ will also need to show they are being paid a minimum gross annual salary of £35,000 a year, or the ‘appropriate rate’ for their occupation, whichever is higher. Gross annual salary for these purposes can be a mixture of basic pay and some allowances, but in many cases these workers are on far less than £35,000 a year.
The change will apply to Tier 2 (General) migrant workers who applied for leave to remain from 6 April 2011 and accordingly meet the five-year residence requirement from 6 April 2016. The minimum remuneration threshold also applies to ‘Sportspersons’ under this visa category but Tier 2 (General) migrant workers in shortage occupations, and in designated ‘PhD level’ jobs, as listed on the UK Visas and Immigration’s website will be exempt.
The Tier 2 (General) visa category is currently capped at six years, so migrant workers that do not qualify for settlement after five years can only stay for one more year. When their visa expires at the end of the sixth year, they will need to leave the UK and will not be able to re-enter under any Tier 2 category for one year (this is often known as the ‘cooling off’ period).
If such migrant workers do manage to return to the UK under the Tier 2 (General) category after a year, the one year gap would break their continuous residence and would reset their ‘five year clock’ for settlement purposes, which means they will have to wait another five years to qualify for settlement.
On the other hand, a migrant worker returning to do a job with a gross basic annual salary of £155,300 or more (the so-called ‘high earner’ threshold, which will increase in future years) is not subject to the ‘cooling off’ year and can return immediately.
Implications
Businesses employing lower paid Tier 2 (General) workers that do not meet the minimum remuneration threshold will no longer be able to employ these workers beyond the expiry of their visas. The new salary threshold is more likely to affect employers negatively that have a higher proportion of lower paid workers, such as those in the health services, rather than companies in the financial and legal sectors where pay tends to be higher.
Although the implementation date is still some way off, organisations employing Tier 2 (General) migrant workers should start to factor in the minimum salary requirement now.
For instance, their assessment should include establishing which of their migrant workers may be affected by the change and considering which of them (if any) they are willing to pay more to help them qualify for UK settlement.
Where the pay of such migrant workers is only marginally below the minimum threshold, it is likely that many of their employers, at least those in the private sector, will be prepared to slightly increase their remuneration packages, especially for their most valued staff, to help them qualify for indefinite leave to remain. For the employer, this also avoids the need – and cost – of finding a replacement.
Sheetal Gaur is an associate in, and Edward Wanambwa a partner and head of, the immigration team at Russell-Cooke
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