March 11, 2009

Foreign Nationals Face Tougher Restrictions Under the U.K. Points Based System

On February 22, 2009, the Jacqui Smith, Home Secretary, issued a press release and public statement, announcing that the Government of the United Kingdom was using the flexibility built into the Points Based System (PBS) to respond to changing economic circumstances to protect British workers during this recession.

Ms. Smith announced three significant changes to the PBS, being implemented on April 1, 2009, to protect the British workforce and to enable the Government to be more selective about the foreign nationals from outside the European Economic Area (EEA) being permitted to enter the United Kingdom for employment. These changes included:

• Highly skilled migrants (Tier 1) must possess a Master’s degree and must have earned a minimum salary of £20,000 over the 12 month period proceeding the application.
• U.K. employer seeking to hire an hire employees in the Tier 2 classification, including Intracompany Transferees, must advertise the position through the JobCentre Plus and confirm that the Resident Labor Market Test has been satisfied.
• Using the shortage occupation list to trigger skills review that focus on improving the skills of U.K. workers to make the United Kingdom less dependent on foreign labor in the future.

Since November 2008, all companies seeking to sponsor foreign nationals for employment in the United Kingdom have been subject to the PBS. The PBS represented the most substantial changes to the U.K. immigration system in 45 years. The PBS system ended the more than 80 different options available for foreign nationals to work and study in the United Kingdom. The PBS system created a five-tiered system whereby foreign nationals must satisfy a requisite number of points in order to enter the United Kingdom. The PBS places greater weight on self-regulation and substantially increases civil and criminal penalties for employers who do not comply with their obligations.