MAC Report Highlights Abuse of the ICT Visa Scheme
In a recent blog, we wrote about the review by the Migration Advisory Committee’s (MAC) of the current Intra-company transfer (ICT) visa scheme in the UK and how it could be improved. One aspect we did not cover which the MAC mentioned was the known abuse of the ICT visa scheme system by multinationals. In this article, we will explain how some companies have been unfairly using the UK’s ICT visa scheme, according to the Migration Advisory Committee (MAC).
A breach of the technical immigration rules
The MAC’s report on the ICT visa scheme delved into what they refer to as ‘technical rules compliance’. It explains that the ICT visa scheme is being abused by some businesses seeking to gain a visa for their employees when they are not eligible. They do, however, reiterate that all visa routes experience a level of abuse by applicants seeking to gain an unfair advantage and that such breaches of the immigration rules are detected and handled by the Home Office’s own compliance and enforcement procedures. As they state, “Both UK Visas and Immigration and Immigration Enforcement carry abuse of ICTs as a live issue on their immigration threat assessments”.
In some cases, the sponsoring business is solely responsible for misuse of the scheme, and in others, there is “collusion by migrants”. The report explains that while it is known that misuse of the scheme is ‘live’, some companies are so experienced at using the visa, it is difficult to detect when it is happening; “It can be difficult to identify when abuses are occurring, as many of those carrying it out are large companies that are experienced at using the route and are able to hide it effectively”. The extent of the misuse of the ICT scheme is not clear, especially due to the severely restricted activities of the Home Office’s compliance teams due to the ongoing COVID-19 pandemic and the fact that people have been working from home, making it more difficult to carry out live visits.
What types of abuse of the ICT visa scheme have the MAC highlighted?
The general theme when it comes to how the ICT visa route is being misused is that the eligibility rules are being stretched too far. Specifically, the MAC says that the following types of ICT visa abuse are known to occur:
- Companies recruit for positions that do not comply with the rules. The MAC explains that this includes jobs that are not RQF6+, or employing workers on routine IT work, and then describing the positions inaccurately in order to obtain ICT visas. This is likely to be a particular issue for those working as contractors;
- Artificially inflating the value of provided accommodation to meet the salary threshold, or claiming more than once for the same accommodation where this is shared by employees; and
- Migrants are retained after their visa expires, often by companies employing their spouse to fill a (possibly non-genuine) vacancy, after which the migrant becomes a dependent spouse and is re-employed in their old position.
Any business bending the ICT visa rules ultimately risks losing their sponsor license, especially if it is found that such misuse is deliberate and systemic rather than simply one-off and inadvertent.
It is also apparent that some misuse may be entirely unintentional and a result of the difficulty of using the scheme; as the MAC explains, “firms may have legitimate difficultly in navigating the SOC codes and jobs titles required to ensure the job meets the skills' threshold. Similarly, although the rules specify that there should be a structured graduate training programme leading to a senior or specialist position for graduate trainees entering on this visa, there is no further guidance on the nature of the training programme required (other than the stipulation that employers should be able to provide further details on request)”.
It is also understood that some misuse is occurring of the ‘allowances’ within the ICT visa system, including the number of hours migrant workers are permitted to work, and the accommodation allowances provided; “It also appeared that in some cases employees were overpaying for accommodation and/or in crowded housing, possibly to facilitate the employer claiming multiple allowances”.
While many businesses are fully compliant with the ICT visa immigration rules, there are some that pushed the boundaries considerably with “what appeared to constitute abuse of the system and/or exploitation of employees at the other end. This included potential instances of underpayment, undercutting, overstating of allowances, and recruiting for a job that was not adequately skilled”.
How are the MAC recommending that ICT visa route abuse can be prevented?
One of the changes recommended by the MAC, which may prevent at least some abuse of the ICT visa scheme, is providing the ability to switch to the Skilled Worker visa. This may deal with situations whereby individuals are retained beyond the expiry of their ICT visa because they would then have a clear immigration pathway to move to.
A second change that may reduce levels of immigration rule abuse under this route is making to navigate the SOC codes and job titles and providing improved guidance on structured graduate training programmes (as the MAC say this is leading to confusion currently).
Perhaps the main advice of the MAC resulting from the report is that greater monitoring and enforcement of the ICT visa route is needed, with a strong focus on the accommodation and salaries being provided. In particular, a full breakdown of allowances should be required to ensure these are properly provided.
As the MAC point out, while greater levels of monitoring and enforcement may be justified, this must be considered in the context of budgetary reality. It is possible that greater scrutiny at the point of application may be required in combination with automation. This is perhaps where the Home Office’s intention to use automated HMRC checks to ensure actual salaries being paid meet the threshold required. In addition, sending reminders to businesses that breaches of the rules will risk license revocation may also yield positive results.