Caron Pope of Fragomen looks at recent reforms in UK corporate immigration policy.
"The proof is always in the pudding and the last round of changes to UK immigration rules went a long way towards ushering in a period of stability."
Continuous review of immigration employment policy
Since the May 2010 election, the UK’s corporate immigration system has been reformed at an unprecedented rate.
Two incarnations of a cap on skilled workers have been introduced; cooling-off periods have taken effect at the end of a migrant worker’s stay, limiting or preventing re-entry for work; and permanent residence has been restricted, largely to higher earners.
The Home Office has also proposed a cap on intra-company transfers, reviewed the way a migrant can be paid and published countless versions of guidance and legislation.
For the last few years Fragomen LLP, among others, has argued against this constant change, a message that has been accepted in Whitehall. Our clients told us that they were struggling with the pace of change and that consultation fatigue had set in. Happily, the Home Office recognised that too; officials and ministers now talk about the need for a period of policy stability, allowing the system to bed in.
The proof is always in the pudding and the last round of changes to UK immigration rules went a long way towards ushering in a period of stability. The changes have eased the salary requirements for new starters, made it easier to advertise jobs and increased useful flexibilities for high earners.
These changes, and the majority of other areas of immigration reform we have seen, have related to Tier 2 of the UK’s points-based-system (PBS), the visa category for skilled workers. We believe that now is the time for Home Office policymakers to switch their attention to the comparatively ignored rules for business visitors.
We realise that citing the problems with constant change while arguing for a visa category to be reviewed doesn’t easily stack up. But at Fragomen we believe that the potential benefits of a sensibly relaxed visit policy far outweigh the cost of adding to that consultation fatigue.
The uncertainty in business visitor policy
Business visit visas are generally used for overseas business people travelling to the UK for meetings but a number of other activities are permitted. For example, IT workers entering the UK to install, debug or enhance software can enter as a business visitor. Business visitors can also service or repair machinery, provide or receive training in certain circumstances and provide a limited amount of training.
These activities are set down in the Business Visitors Guidance and for the most part they are reasonably self-explanatory. But there are grey areas. For example, a multinational can send an employee to the UK to work as a consultant, providing advice to operations here so long as they are not doing work for the UK firm. But at what point does consultant support become work? Is it where the worker interacts with a client or customer, however superficially? Or is it when they actually produce a report and recommendations in the UK?
A business visitor can come to the UK to install, debug or enhance computer systems for a software company. We can assume that all of these tasks will include some element of testing, but to what degree? Moreover, at what point would a person be considered a test analyst and need to enter with a Tier 2 visa and Certificate of Sponsorship?
These questions are all answerable. At Fragomen we advise clients on the line between work and a visit on a daily basis using UK Border Agency policy guidance and our own experience. We also have software that companies can rely on to provide guidance on all but the most complex scenarios.
But these grey areas do create problems for businesses where they are new to immigration or do not have access to legal advice. In our experience, firms focused on compliance will tend to take a conservative view issuing a certificate of sponsorship and obtaining a Tier 2 visa where an employee’s activities arguably fall outside of those that are permissible. Less risk-averse companies may choose to go with the visit option, saving time and money.
The cost incurred by companies that go with a Tier 2 visa over a business visit visa when the line is grey has grown since the introduction of cooling-off periods. This rule says that a skilled migrant worker cannot normally apply for a further Tier 2 visa for 12 months from the point at which their previous visa expired or they left the country. The policy can mean that if an employee enters another country for two weeks to provide consultancy advice, they can’t then return to work in the UK for a year.
There are also anomalies within the rules. An employee of a software company can enter as a business visitor to enhance software for a client, but guidance does not permit an IT manager in, for instance, an accountancy firm to do the same. Guidance accounts for one-off corporate training if it is being delivered by an outside provider to UK and overseas staff, allowing entry as a business visitor, but takes no account of training that would only be provided to foreign staff, save for where it relates to a specific product or service.
Allowing greater flexibility
Removing the uncertainty and anomalies from business visit policy would make a huge difference for businesses focused on compliance. To begin with, it would level the playing field as those who are less risk averse would no longer be able to gain an advantage over their competitors.
It would also allow companies to use their staff more efficiently by moving them more quickly. The completion of a Certificate of Sponsorship, the electronic record that supports a Tier 2 visa application, is simple and is not particularly time consuming. But the work that goes before the certificate of sponsorship – for instance, ascertaining salaries, taking account of accommodation allowances, formalising the role and finding a year’s worth of wage slips – takes time.
This work is important. The government wants to ensure that intra-company transferee visas are used as intended and assignees do not displace or undercut UK workers. These risks are much less of an issue if a person is entering for a couple of weeks. The risk of displacement falls away and the cost of putting the assignee on a plane and in a hotel should prevent undercutting.
The message sent to businesses is no less important. It can be difficult to explain that an assignee needs a Tier 2 visa before they can enter for four days to audit their UK office. The preparation can take longer than the assignment. These messages undermine the credibility of the UK’s immigration system, making it feel irrational.
Fragomen has proposed a short-term assignment visa to solve these issues, an idea that we believe is fairly straightforward: let an assignee enter for up to two weeks and undertake any graduate-level work using the job titles that already exist in Tier 2. The government can prevent people from abusing the category by limiting the number of times the visa can be used each year and placing breaks between trips.
In one fell swoop the policy would level the playing field and reduce non-compliance; give businesses a greater degree of certainty without compromising resident workers; and make the immigration system more rational.
It would also send a strong message that would be received at the board level of multinational companies. Senior business leaders simply want to know that, where necessary, they can move their people quickly. It is never easy for a HR adviser to tell a business manager that an essential employee has to wait weeks for a Tier 2 visa application to be prepared, submitted, and processed.
We do not believe that the Home Office should stop there. We have also put the case forward, just as strongly, for the types of permissible activities to be improved for business visits more generally.
There is a good case for internal auditors being allowed to use the category for longer than a fortnight. The rules mentioned above, concerning internal IT employees, would also benefit from further analysis.
The type of training that can be provided also seems unduly restrictive. It makes sense to allow a business visitor to install, enhance, debug or repair software on behalf of their employer. It seems odd, however, that they cannot also train employees of a UK client to use the software. A bit more flexibility here would make a massive difference for IT firms and the companies they are servicing.
To an outsider, these changes would all seem very technical and dry – and they will not grab any headlines. In reality, however, businesses would benefit enormously if even a handful of the ideas we have proposed were put into practice.