Immigration & Recruitment

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

2. 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.

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. 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. • RQF level 6 / degree level or above

5. 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.

6. 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.

7. 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:

8. SOC codes – ‘new entrant’ and ‘experienced’

9. 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

10. 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 ‘Find a Job’ 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.

11. 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 Find a Job– 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. • Must ensure that qualification asked for within advert is held by applicant i.e. ‘Must hold a PhD’ – cannot recruit someone through Tier 2 who doesn’t hold a PhD.

12. 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. Consider Tier 1.

13. RLMT exemptions There are a number of exemptions to conducting the RLMT, the most relevant for HEI’s are: • High Earner – If the individual’s salary will be above £159,600. • Extensions– The individual is a current employee continuing to work in the same job (same SOC Code). • Shortage Occupation list – www.gov.uk/government/publications/tier-2-shortage-occupation-list • Includes all Biological scientist/bio-chemist roles (SOC Code 2112) • Archaeologists (SOC Code 2114)

14. RLMT exemptions cont. 4. Post-study work – This covers any individual switching to a Tier 2 (General) visa from one of the following types of leave: • Tier 4 (General) student, but on the following conditions: • The student’s most recent sponsor was a Higher Education Institution; and • The student is within three months of the end date of, or completed, a course leading to a UK recognised bachelor’s or master’s degree ; or • They have finished a minimum of 12 months study in the UK toward a UK PhD • Tier 4 Doctorate Extension scheme or Tier 1 (Graduate Entrepreneur)

15. RLMT exemptions cont. 5. Supernumerary researcher exemptions • Where the applicant has been granted a scientific research Award or Fellowship by a third party organisation, and the Award or Fellowship cannot be transferred to anyone else; or • Where the applicant has been granted a scientific research Award or Fellowship by the Sponsor if the following requirements are met: • (1) the applicant has been selected through a competitive process on the basis of their own research proposal; and • (2) the funding of the research is secured in an agreement between the Sponsor and a third party organisation, which includes objectively justified requirements that effectively prohibit any settled worker from undertaking the role

16. 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

17. 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.

18. 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 £610 outside the UK and £704 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 £1,220 outside the UK and £1,408 inside the UK. • The NHS surcharge will also be applied at a cost of £400 per year the visa is valid • The cost of the CoSwill 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.

19. Tier 2 Timetable • From 6th October 2019, all PhD level roles are classed as ‘Unrestricted’ for CoS purposes. Not subject to national cap. • Please submit CoS applications no earlier than 3 months before start date, and no later than one month before start date. • 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.

20. 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 Upload into web recruitment

21. 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

22. Is there more to life than Tier 2? • Tier 5 (GAE) • Tier 4 working conditions • Right to work checks

23. Tier 5 GAE overview • The Tier 5 (GAE) visa can only be used by any UK HEI to bring “sponsored researchers” into the UK. • From 6th July 2018 the definition of a sponsored researcher within Tier 5 GAE will be those who are undertaking: • A formal project or collaboration, funded by their host, their overseas employer, or a funding body; • A period of work-based training/work experience/internship/ placement; • Skill development/knowledge transfer; • A series of lectures, which doesn’t amount to a formal teaching post; • External examinations Includes academics, researchers, scientists, research engineers or other skilled research technology specialists

24. Tier 5 (GAE) restriction and conditions • The individual must not fill a genuine vacancy in the UK workforce. • Funding can come from any legitimate source, including from the University itself or a third party, but the individual cannot fund themselves and the payments must meet national minimum wage requirements (exception for work experience and interns). • The individual can be paid weekly/monthly/annually or in one lump sum. • The individual can be a contracted employee. • The work must be skilled to at least RQF Level 3. • The visa is valid for 2 years maximum and cannot be extended beyond this date for any reason.

25. 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.

26. 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. • Legal requirements since 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

27. Right to Work checks • Asylum and Immigration Act 1996 introduced the concept of right to work checks. Augmented over the years by the following legislation: • Immigration and Asylum Act 1999 • Immigration, Asylum and Nationality Act 2006 • Immigration (Restrictions on Employment) Order 2007 (amended 2009, 2014 and 2016) • Immigration Act 2016 • Employers are not legally required to undertake the checks, but if they don’t there are a range of penalties if you are found to “employ” an illegal worker.

28. Right to Work Penalties • £20,000 fine for each illegal worker found on premises • Incurring even one Civil penalty will jeopardise the University's Tier 2 and Tier 5 licence. If revoked, all sponsored individuals have their visa curtailed to 60 days. • Redundancies/removal from UK • Reputational damage to the University

29. Knowingly or having ‘reasonable cause to believe’ you have employed illegal migrants • Criminal penalty: Right to Work Penalties • Incurs a sentence of 5 years imprisonment and/or unlimited fine. • No definition, as yet, of ‘reasonable cause to believe’ • Provided you undertake a right to work check in the prescribed manner, known as ‘establishing a statutory excuse’, you can mitigate against incurring the above civil and/or criminal penalties.

30. How to do checks Step 1 – Acceptable documents • Controlled in law • Documents accepted outwith this scope do not provide a statutory excuse e.g. Home Office acknowledgment letters • Divided into two Lists – ‘A’ and ‘B’ (List B subdivided into ‘Group 1’ and ‘Group 2’) • Both Lists on our Job Opportunities webpages: http://www.jobs.cam.ac.uk/right/

31. How to do checks Step 2 - Checking the document Key points to remember are that you must: • Undertake the check in the presence of the holder. • Check that photographs and dates of birth are consistent across documents and with the person’s appearance. If visa/BRP held, ensure that the expiry dates of any limited leave to enter or remain in the UK have not passed. If visa, must be inside valid passport. • If visa/BRP held, check if any work restrictions apply (e.g. Tier 4 visa holders). • Satisfy yourself that the documents are valid and genuine and have not been tampered with. Minimum legal requirement: ‘Reasonable checks’

32. How to take checks Step 3- Copying the document Key points: • Passport – copy the bio-data page. Front cover not required. Copy any UK visa inside the passport which denotes their right to work. For UK and EEA citizens, can be expired. • EU/EEA ID card – best practice to take both sides • BRP – must take both sides Certification: • On the copied page, you must provide your signature and print your name. Best practice to include the statement: “I confirm that this is a true copy of the original, taken on [DATE AND TIME]” • Must be undertaken before work commences.

33. Visa extensions • At the point of visa expiry, employers are required to perform a further right to work check on employees who hold a time-limited visa. • Departments are notified by the Compliance Team three months before a staff member’s visa will expire. • The Compliance Team requires evidence of an in-time application: • Copy of the online application and proof of payment; and • Signed consent to run verification check with the Home Office • Once the Compliance Team have received the above, the contract process can begin without the need to wait for the new visa/BRP to be issued.

34. Sponsor Licence duties • Sponsor License holders must adhere to the required reporting duties for Tier 2/5 visa holders. Most relevant are: • If employment starts later than the date specified on the CoS • If the employee leaves employment early (either resignation or dismissal) • If there are any contractual changes e.g. change of job title, duties, salary inc. maternity/paternity (but not annual increments), change of work location • If the employee takes more than 10 consecutive working days of unauthorised absence • If they move to another immigration category (e.g. Indefinite Leave to Remain) • Sponsored individuals affected by TUPE

35. Sponsor Licence duties etc • Absent from work without pay for more than 4 weeks (except for Maternity, paternity, adoption, long term sick) • In all of the above cases, changes must be reported to UKVI within 10 working days

36. A final thought…. Judges’ remarks on the Immigration System: “A degree of complexity which even the Byzantine emperors would have envied” “The forms are complex and the requirements most rigorous” “The Rules should be readily understandable. That is not the case at present” “The web of Rules and Guidance has become so tangled that even the spider has difficulty controlling it.”

37. Questions