Changes to Immigration Policy - Worker Migrants

Summary

The request sought details on policy development and correspondence regarding changes to Worker Migrant rules allowing third-party employment under SD2021/0002 and SD2021/0155. The response disclosed that third-party employers can be located outside the Isle of Man and that salary must be paid by the main employer, though some information was withheld under exemptions.

Key Facts

• Appendix W was amended by SD2021/0002 to remove the prohibition on Worker Migrants being employed by third parties.
• There is currently no requirement for third-party employers to be located within the Isle of Man.
• The policy intention is that the migrant's salary must be paid by their main employer as recorded on the Certificate of Employment.
• Work undertaken for third parties does not currently need to be within the same SOC code as the original employment.
• Employers or migrants are not required to notify Immigration of sub-contracting arrangements.

Data Disclosed

• SD2021/0002
• SD2021/0155
• 22 February 2021
• 11 February 2021
• Section 13
• Section 9
• Section 5
• Part 2.2.1 (4)(c)
• paragraph 2.3.1
• Part 5

Exemptions Cited

• Some information sent but part exempt

Original Request

The Statement of Changes to Immigration Rules SD2021/0002 made changes to Appendix W removing the prohibition on Worker Migrants being employed by third parties. Appendix W has been further amended by the Statement of Changes to Immigration Rules SD2021/0155. The explanatory memorandum to SD2021/0155 states that the further changes reflect a refinement of policy intent, which is owned by DFE. I am seeking information about the circumstances of the initial development of the policy and its subsequent refinement and its limitation to three specific SOC codes. Please confirm if any meetings were held with or correspondence received from any third parties concerning issues arising from the prohibition on Worker Migrants being employed by third party employers. Please provide a copy of any correspondence to/from or notes made from meetings with any external parties regarding changes to the Immigration rules around the employment of Worker Migrants by third parties. Please provide a copy of correspondence or meeting notes with Department for Enterprise regarding the policy and rule changes. Please provide a copy of any Cabinet Office policy paper and related correspondence/documents relating to the SD2021/0002 and SD2021/0155 Appendix W rule changes. A request for this information has also been made to Department for Enterprise.

Data Tables (9)

Full Response Text

From: To: Subject: RE: (BRI17/6) code of practice and immigration rule change queries Date: 22 February 2021 12:29:00 Attachments: image001.png Dear   Many thanks for your queries, and apologies for the delay in my response. Your queries raise some very good points, and I’ll be taking them up with relevant colleagues very shortly. I hope that the answers below are helpful, and I’m happy to discuss further if you’d like.   Kind regards   Isle of Man Immigration Office|Cabinet Office, Government Office, Douglas, Isle of Man IM1 3PN

From:

Sent: 11 February 2021 16:00 To: Cc: CO, Isle of Man Immigration immigration@gov.im; Subject: (BRI17/6) code of practice and immigration rule change queries   Caution: This email is from an external sender. Please take care before opening any attachments or following any links.  Dear   Could you please send me a copy of the Code of Practice issued under Section 13 of the UK Borders Act 2007. I can’t find it on the Immigration website. This Code of Practice has not been made yet, so you aren’t missing anything on the website! The COP issued under this section relates to the penalties issued under section 9 of that Act, which themselves set the penalties for failing to comply with the Regulations which can be made under section 5 of that Act – none of these have been made.   Additionally, I have some queries about the amendments in SD 2021/0002 regarding Worker Migrants working full or part time for third parties provided that they remain employed for the main employer.   1. Could you confirm whether such third parties must be in the Isle of Man or if they can also be in the UK/Overseas? There is nothing to say that the third party must be in the Isle of Man, so at the moment there is nothing to prevent a third party being located in the UK or Overseas. We will be considering whether we need to introduce any changes to this in order to restrict this possibility.   2. If the migrant remains employed by the employer but the salary is paid by the third party do any issues arise with their employer? I don’t think that any issues would necessarily arise with the employer in relation to the Immigration Rules were the third party to pay the migrant’s salary, however see my comment at 3 below for further thoughts on this.   3. Can the third party pay the salary instead of the original employer? It is noted that for leave to remain the WM must demonstrate that they meet the appropriate salary requirements.  It does not appear to specify by whom that salary must be paid. The intention is that where any work is done for a third party that the migrant remains paid by their main employer (the one stated on the CoE), as we definitely want there to still be a link between the migrant and their main employer. The specified documents which evidence payment of salary e.g. at paragraph 2.3.1, do go on to say that payslips and bank statements must show that the transactions are made by the migrant’s employer – which we take to be the one recorded on their CoE. I do think on reflection that this needs to be made clearer, so I will look at effecting that in the next Statement of Changes or in guidance – thanks for highlighting this.   4. Is there a requirement that the work undertaken for third parties must be within the same SOC code as that of the original employment? There isn’t anything which currently says that work for a third party necessarily has to be in the same SOC code. I wouldn’t say that working for a third party in a different SOC code constitutes a prohibited change under Part 5, as we wouldn’t consider their “employment” to be changing, given that they are still employed by their main employer as stated on their CoE and we would still be expecting them to be doing the work in the SOC code as stated on their CoE when they are working for their main employer. We’ll be taking forward for consideration whether this is something that we want to change.   5. Does either the employer or the migrant have to notify Immigration of the sub-contracting? We only require the details of their employment with the main employer, which is detailed in the CoE.   Part 2.2.1 (4)(c) sets out conditions for WM visas including “no employment except: (i) working for the Employer in the full time employment recorded on the COE”. Can you please confirm that if an employee is permanently sub-contracted to a third party that the migrant would not be in breach of the terms of his/her visa? We would consider that the migrant would not be in breach of this condition as long as their employer remains that as stated on their CoE, and this is the case no matter the time length that the migrant is doing work for a third party.   6. Does the IED issued to the Migrant in respect of the original employer sufficient that the Migrant and the third party would not be in breach of the Control of Employment Act provisions? Looking at the Control of Employment Act, section 7(4) says that the IED exempts the need for a work permit for that specific employment. This is the specific employment that the migrant has been hired to do i.e. the one that the main employer stated on the CoE has hired them to do.   From:

Sent: 04 June 2020 12:42 To: Cc: Subject: DfE - issued CoE Dear We were scheduled to meeting but didn’t and I can only apologise that this must have slipped off my to do list. received a response from which is set out in the email attached. In particular the issue for is the very nature of its business and the services that the Isle of Man appears to require do not meet the Immigration rule 6.2(6) which prevents the contracting out of IT professionals. Now that we have the Immigration and Nationality (Supply of Information) (Specified Persons) Order 2020 that provides for the CO Minister to supply information to the Minister for Enterprise for immigration purposes under the provisions of section 21 of the Immigration and Asylum Act 1999, I am enquiring whether the Department for Enterprise (DfE) wish to implement a policy to allow discretion to to contract staff to the IT industry across the Isle of Man, or for DfE to carry out an impact assessment should rule 6.2 (6) continue to operate which prevents contracting staff. Kind regards From:

Sent: 02 March 2020 08:25 To: Cc: Subject: issued CoE Morning Following on from our meeting on Friday 21 February, and myself met last Wednesday and in the first instance agreed that this office should write to asking if they could set out how they meet the requirements of an IOM employer as set out in Appendix W, Part 6, paragraph 6.2(1)(a) or (b). FYI the CO has approved the making of the Immigration and Nationality (Supply of Information) (Specified Persons) Order 2020 and will be submitted to the March 2020 sitting of Tynwald, subject to the negative procedure. This Order provides for the CO Minister to supply information to the Minister for Enterprise for immigration purposes under the provisions of section 21 of the Immigration and Asylum Act 1999. will chase for a response and in the meantime, I will schedule a meeting following the March Tynwald to catch up. Kind regards From:

Sent: 01 March 2020 10:22 To: Subject: RE: issued CoE From: To: Subject: RE: Paper - Appendix W (Employers) Date: 22 October 2020 16:56:45 Attachments: image001.png Hi Thanks for this – much appreciated. Regards From:

Sent: 22 October 2020 16:09 To:

Subject: RE: Paper - Appendix W (Employers) Hi Rather than track which was becoming messy, I have made changes (hope you don’t mind!). Kind regards From:

Sent: 22 October 2020 10:50 To: Subject: Paper - Appendix W (Employers) Hi As discussed – could you cast your eye over please? It still needs a bit of a tidy up – which I will do, but going into meetings now until 130. Main question is – would it be enough for you (if approved) to consider what changes were needed? Ta St George’s Court • Upper Church Street • Douglas • Isle of Man • IM1 1EX For more information on news and events sign up to our newsletter here cid:image005.png@01D4407F.31472F40 From: To: Cc: Subject: RE: Appendix W SoC code discretion Date: 20 January 2021 08:05:32 Hi Apologies for the delay in coming back on this – all a bit manic at the moment. Thanks for this – all noted and understood. Regards From:

Sent: 12 January 2021 12:51 To:

Cc:

Subject: Appendix W SoC code discretion Hi Hope that you are keeping well during this current lockdown. Letting you know now that we have progressed and had made this morning a Statement of Changes in Immigration Rules which have made the requested amendments (set out below). The changes will be coming into operation on 2 March 2021. I’ve sent off instructions to GTS to upload the Statement to our website, and I’ll be submitting these to the February Tynwald. Just a brief reminder and overview of the changes: On 29 October 2020, you requested amendments to the Worker Migrant Rules to allow for: · Foreign registered companies to be issued with a CoE; · Partnerships to be issued with a CoE; and · Worker Migrants to be permitted to work for third parties. The Statement of Changes also makes the requested change to allow for DfE to issue a letter in the circumstance that they wish to allow for a CoE to be issued, but there is no suitable SoC code in the list of eligible employments. We discussed with our legal advisor who agreed that a provision like this could be included. We did have to state some requirements for information that this letter must contain (similar to how the Rules state what information a Letter of Endorsement for a Business Migrant must contain). Its set out at change W.18 in the attached Statement and the requirements of the letter are fairly straightforward. The letter basically just needs to confirm the details of the job - so job title, job role and minimum salary and whether it is a key employment (so we know whether it requires a Resident Labour Market Test). Hope that the above summary is helpful, but I’m happy to discuss further if you’d like more detail on the changes and how we’ve done them. Kind regards From: To: Cc: Subject: Date: RE: (BRI17/6) code of practice and immigration rule change queries 22 February 2021 15:57:00 Hi has just given me a call earlier off the back of my reply to her (attached). In short, she reiterated her comments and expressed her concern that the third party employment change is not sufficiently robust. Of particular concern were the questions she raised and that we discussed at comments 1 and 4, and as previously mentioned I’ll consider some solutions for these in the next set of Rule changes. She did also express that she would prefer and expect much more engagement with employers before large policy decisions such as the one permitting third party employment are taken, or alternatively she suggested that a policy statement should be released so that the policy change and its intended effect can be understood more widely. It may be worth getting in contact with her, but I thought I had better pass on her feedback in any case. Kind regards From: Sent: 22 February 2021 10:09 To: Cc: Subject: RE: (BRI17/6) code of practice and immigration rule change queries Many thanks , I’ll get something back to now then and I’ll discuss with colleagues as to the amendments discussed at questions 1 and 4 below – I’ll let you know the outcome of this once we’ve had a chance to discuss internally. Kind regards From: Sent: 22 February 2021 06:03 To: Cc: Subject: RE: (BRI17/6) code of practice and immigration rule change queries Hi Updated below, happy to discuss. Regards       From:

Sent: 19 February 2021 14:25 To: Cc: Subject: RE: (BRI17/6) code of practice and immigration rule change queries   From:

Sent: 19 February 2021 13:14 To: Subject: RE: (BRI17/6) code of practice and immigration rule change queries   Hi Many thanks for getting back to me with your responses. I’ve added a few further thoughts to your comments below at questions 1 and 4 (in red again). Would you mind letting me know your thoughts on those and then I think I’ll be in a position to go back to . Kind regards   From:

Sent: 17 February 2021 11:02 To: Cc: Subject: RE: (BRI17/6) code of practice and immigration rule change queries   Hi I have provided some annotations below.  Happy to discuss. Regards   From:

Sent: 15 February 2021 10:07 To: Cc: Subject: RE: (BRI17/6) code of practice and immigration rule change queries   Hi We’ve had the below set of queries from on the recent changes to the Worker Migrant route. They are mainly focused on the change allowing Worker Migrants to be sub-contracted out to third parties. I’ve highlighted some questions where I think we could do with your input before going back to if you don’t mind? Feel free to leave comments on any of the other responses that I’ve left as well. Happy to discuss any of this if you wanted to give me a call. Kind regards they want to extend their leave further, they need to demonstrate that they have been paid by their main employer and have been paying IOM taxes etc. There is also the requirement if they want to apply for indefinite leave to remain (as they can’t continuously just apply for limited leave as a WM) that they need to have spent 5 years continuously resident in the Isle of Man (anytime over 180 in any 12 month period off the Island will break this continuous residence, meaning that their 5 year clock resets), which needs to be evidenced – so again, this would catch anyone who is working not in the Island for extended periods - so we’ve got this front covered as well.   As the WM is still employed by the CoE employer and not the third party, they may be able to work in the UK (or overseas), however this is a call that would be made on the UK’s (or whichever country’s) end whether or not they will permit a WM to work for an employer based there.   The policy paper is silent on any limitations to where the third party is located, but with these bases covered the risk of abuse seems low. In light of this, could advise whether there is any need to adjust the policy intent at this time – i.e. restrict where the third party must be located?   I would agree the risk is clearly low for the reasons you outline.  The paper may be silent on it per se – but it is fairly clear that the problem trying to be solved was in respect of workers to work in the IoM as that is where / why the issue was flagged to DfE.  If the Rule change is broader than that in practice (which it sounds like it is) and can be restricted with an amendment, then I think this should at least be considered.   2. If the migrant remains employed by the employer but the salary is paid by the third party do any issues arise with their employer? I don’t think that any issues would necessarily arise with the employer in relation to the Immigration Rules were the third party to pay the migrant’s salary, however se

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