25 September 2020

Skilled workers who are sponsored under the Tier 2 (General) category are able to apply for indefinite leave to remain (‘ILR’, also known as ‘settlement’) in the UK after five years. This is of course subject to the applicant meeting a number of mandatory requirements.

One such mandatory evidential requirement is for the applicant’s employer to provide written confirmation that the applicant will be required in their role for the ‘foreseeable future’. This requirement, found in paragraph 245HF(c)(ii) of the Immigration Rules, is justified by the Home Office as a reassurance that the applicant will not have their employment terminated immediately after they acquire ILR and thereby risk becoming a burden on public finances. There are two main issues with this claim which casts doubt on the necessity of this requirement.

Unsuitability in normal times

One of the main benefits of ILR for applicants is that, once attained, they do not need to work in any particular role for any particular employer or indeed work at all. The ‘foreseeable future’ requirement conflicts with this policy by seemingly trying to tie applicants into their sponsored role.

The justifications above also fail to make sense. The written confirmation required from an employer is far from a legally binding or contractual agreement. This means that there is nothing preventing employers from letting sponsored workers go once they obtain ILR – if this is the case, why create an unnecessary procedural hurdle for the applicant and the employer?

In terms of the risk of becoming a burden on public finances, it is worth noting that there are minimum salary requirements for Tier 2 (General) workers who also typically earn a much higher wage than the UK median wage and by definition work in high-skilled occupations. It is therefore unrealistic that an ILR applicant would immediately leave their job or be terminated by their employer post-approval unless they had another similarly paid job lined up. Therefore, in most cases, public finances should be left unaffected.

Unsuitability in the time of COVID-19

As in all other areas of life, the COVID-19 outbreak has made it impossible for many companies to predict and prepare for the future. Many employers do not even know if they will have a running business by the end of the year, let alone whether they will be able to retain their employees for the foreseeable future. Understandably, one consequence of this is an increased reluctance from employers to provide any promises, such as the future employment of staff. It is therefore extremely unlikely in the current climate that an employer would be inclined to provide the written confirmation required for Tier 2 (General) ILR applications, which creates a big problem for applicants who are left without an alternative solution.

The requirement may also cause issues for companies which have been commercially successful in the short-term. The Home Office unhelpfully provides no definition or guidance of what ‘foreseeable future’ means – it could be days, months or years. This definition could be a crucial factor for an employer when deciding whether to provide the written confirmation. They may be willing to retain the employee in the short-term, but it is extremely difficult for even the most successful companies to anticipate the long-term economic effects of the pandemic. As a result, without clarity on the definition, it can be anticipated that many employers will take the option which best mitigates risk and refuse to provide the confirmation. This is extremely unfair on applicants – with a definition, employers would be far better placed to make an informed decision on this matter.

What is also worth noting is that Tier 2 (General) migrants are only permitted to stay in the UK for a maximum of six years. This means that if they do not obtain ILR before the six year mark, they will be required to leave the UK and will then be subject to a 12 month exclusion period unless they are earning a very high level of salary. Obtaining the written confirmation from their employer to enable them to apply for ILR is therefore essential for their ability to stay in the UK.

Solutions?

Given the recent news that the UK has entered the deepest recession since records began, it surely makes sense to amend the rules in a way which will encourage continued employment of staff.

The solution which would best achieve this would be the permanent removal of the ‘foreseeable future’ requirement all together, or at least the suspension of this requirement until the UK economy begins to recover.

An alternative option could be for the Home Office to provide some guidance on the definition of ‘foreseeable future’ to provide clarity to applicants, employers and practitioners alike. Ideally, this guidance would explain that ‘foreseeable future’ refers to months rather than years.

Laura Devine Immigration has raised our concerns to the Home Office in relation to this requirement and will continue to push for a solution to be found.

Get in touch

For further information on Tier 2 (General) ILR applications or other changes to UK immigration law, visit our website, or contact your assigned LDI lawyer or enquiries@lauradevine.com.