The Points-Based System for Immigration
A new Points-Based System (PBS) for immigration was introduced in 2008 and 2009 and directly affects the Scottish Episcopal Church at provincial, diocesan and congregational level.
It applies to overseas clergy who take up posts (even on a short-term basis) in the Scottish Episcopal Church and to other overseas workers who might be employed by dioceses or congregations, where such clergy are non-European Economic Area Nationals.
Under the new points-based system, organisations who wish to receive such clergy or workers need to be licensed by the UK Home Office as sponsors. Sponsored organisations then need to issue Certificates of Sponsorship to those whom they wish to bring into the UK.
2. What is the Points-Based System?
These new arrangements mark a change to the UK’s Immigration System. They replace the former system of work permits for non-EEA nationals and allow migrants to work in the UK in jobs where they are needed. The system operates under five tiers: the two tiers that are relevant to Churches are Tier 2 (skilled workers, which include ministers of religion) and Tier 5 (youth mobility and temporary workers which include short term religious workers).
Employers or those inviting temporary workers are required to register as sponsors with the UK Home Office. Once licensed, they are able to issue Certificates of Sponsorship (certificates are “virtual” and simply comprise a number generated by the Home Office Sponsorship Management System) to those to whom they have offered jobs/places. The role of sponsorship is to provide evidence that a migrant has a genuine job in the UK and has a pledge from the sponsor to take responsibility for the migrant, to help ensure that the system is not abused.The sponsor is responsible to the Home Office for those whom they sponsor, including keeping records and reporting on certain circumstances. Fees are payable to register as a sponsor and for each Certificate of Sponsorship issued.
A migrant applies from their own country to come to work in the UK providing information that shows that they have the required number of points for the tier in question. For “ministers of religion” and “religious workers”, points are awarded for a Certificate of Sponsorship, for meeting the English Language requirement, and for
meeting initial support cost levels or showing that support will be provided by the sponsor.
It is essential that all immigration procedures are properly observed. New penalties exist for anyone caught employing illegal migrants. The most severe penalties, including unlimited fines and prison sentences, are for employers that knowingly break the rules. However, even those who unknowingly employ illegal migrants through less than diligent recruitment and employment practices, can face penalties of up £10,000 for each illegal worker. A separate Scottish Episcopal Church Guidance Note has been prepared setting out the checks which must be carried out before an individual is employed. (The note is available on the SEC website.)
3. Application of the System to the Scottish Episcopal Church
It is open to dioceses or congregations to seek their own registration as a sponsor with the Home Office. However, in the light of the small numbers of overseas non-EEA migrants taking positions in the Scottish Episcopal Church, it has been decided that it is more cost effective for sponsorship registration to be obtained by the General Synod for the Province as a whole and the General Synod is now licensed as a sponsor. However, since the position of sponsor carries a number of specific responsibilities, if congregations or dioceses wish Certificates of Sponsorship to be issued to prospective migrants, certain reporting and other procedures will require to be observed (see section 8 below). In addition, whilst the General Synod will bear the cost of the annual sponsorship fee payable to the Home Office, the cost of the issue of a Certificate of Sponsorship to a prospective candidate will need to be borne by the congregation or diocese in question. At the current time, the fee for a Certificate of Sponsorship for a minister of religion being brought in under Tier 2 is £199 and for a short term religious worker under Tier 5 is £21.
4. Tier 2: Skilled Workers Including “Ministers of Religion”
Tier 2 applies not only to any clergy who are non-EEA Nationals but also to musicians such as organists and lay clerks, to some members of religious orders and to other skilled “religious” workers.
The offer of an appointment can only be made, and a Certificate of Sponsorship issued, if the Resident Labour Market Test has been met. This requires the job to have been advertised for a minimum period to the “resident labour market”. Specific guidance regarding this as it applies to clergy is available from the Home Office website.
A Certificate of Sponsorship can be issued for up to three years. If a migrant wishes to stay for longer, he/she can apply to extend their permission to stay but will require a new Certificate of Sponsorship.
To take up a job under Tier 2, a migrant must apply to enter the UK from the country in which he/she is normally resident. This means that a person to whom an organisation has made a job offer following a job interview here must return home in order to apply to come back to the UK to take up the job.
Tier 2 “Ministers of Religion” migrants will be allowed to work outside their normal working hours in the same sector and at the same level without requiring a second Certificate of Sponsorship (so a musician could work elsewhere as a musician). However, if a migrant works in another sector (for example, as an accountant) then their second employer must also be a registered sponsor and the migrant must be issued with another Certificate of Sponsorship and meet the points-based criteria (including the resident Labour Market Test) for that other employment. If a migrant is already working legally in the UK, he/she need not return to their own country to apply to enter the UK to work in the second employment; he/she can apply within the UK.
Entry under Tier 2, which includes permission to undertake preaching and pastoral work, includes an English Language requirement.
5. Tier 5: Youth Mobility and Temporary Workers including Religious Workers
Tier 5 applies where short term youth workers or other religious workers are to be recruited.
Leave under Tier 5 is granted for up to two years. Since the Certificate of Sponsorship cannot be extended beyond the maximum period of two years, any worker who wishes to stay in the UK after the two-year period will require to return home and make a fresh application for a new two year period.
Tier 5 religious workers are allowed to work for up to 20 hours a week outside their normal working hours in the same sector and at the same level without requiring a second Certificate of Sponsorship. If a migrant works in another sector, then their second employer must also be a registered sponsor and the migrant must be issued with another Certificate of Sponsorship and meet the points-based criteria for that other employment.
6. Visitor Visas
With effect from November 2008 religious workers who are based outside the EEA can visit the UK for up to six months under the “business visitor” category, provided they do not take up an office, post or appointment and any work is consistent with a temporary absence from their employment abroad. This is not a route to settlement and migrants are not allowed to switch from this route to another route.
7. Further Advice
As individual circumstances are so varied, it is recommended that in the first instance advice is sought direct from the UK Home Office.
8. Undertakings by the “Local Employer” (Diocese or Congregation)
Before any Certificate of Sponsorship in relation to a candidate can be issued by the General Synod, the General Synod Office will seek an undertaking from the relevant congregation or diocese so as to ensure that obligations given by the General Synod to the UK Home Office are appropriately mirrored by those parts of the Church which are in a closer relationship to the migrant and which are therefore in a better position to monitor compliance with immigration rules. A style of such undertaking is available from the General Synod Office. A registered sponsor has legal obligations under the legislation. Failure on the part of the sponsor to comply with the legislation may result in criminal prosecution and/or withdrawal of the Sponsorship Licence. If the Sponsorship Licence were to be withdrawn from the General Synod, this would affect the position of all migrants who had been brought to the UK by the Scottish Episcopal Church and could result in their deportation. It is envisaged that the “local employer” would be the diocese, in relation to clergy and also in relation to any lay religious worker employed by the diocese. Where the lay religious worker is employed by the congregation, the “local employer” would be the congregation.
This Guidance Note is based on a Guidance Note produced in September 2008 by the Archbishops’ Council of the Church of England and the material is used with their kind permission.
Updated May 2012, October 2012 and March 2018
The General Synod of the Scottish Episcopal Church does not accept responsibility for any loss or liability which may arise from reliance on information or expressions of opinion contained in this document.
General Synod of the Scottish Episcopal Church
Scottish Charity No SC015962