Legal Briefing

Back to the future: the only constant in life is UK immigration law

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Human resources | 01 December 2014

Heraclitus was probably right when he said in 500BC that ‘the only constant in life is change’. However, if he was living or working in the UK today as an overseas national, he would probably rephrase this by saying that the only constant is UK immigration law, judging by the frequency with which it changes.

In line with its continuous tinkering, UK Visas and Immigration (UKVI) has once again amended the Immigration Rules through the Statement of Change HC 693. According to UKVI, these changes, which will be phased in from 20 October 2014 to 1 January 2015, were necessary due to the Migration Advisory Committee’s recommendations in February 2014 to plug loopholes and deal with applicants who have or intend to circumvent the Immigration Rules.

Given that these changes cut across a wide range of immigration categories, HC 693 is considered one of the most significant amendments to the points-based system made recently.

Taking some of these changes in turn:

GENERAL VISITORS

The visitor visa is one of the most widely used immigration categories. Changes have been made to align the Immigration Rules with UKVI’s practice of permitting a child, spouse or partner of an Academic Visitor to accompany the Academic Visitor to the UK as General Visitors.

BUSINESS VISITORS

The Business Visitor route enables individuals to carry out specified permitted activities in the UK, provided they remain paid and employed by an overseas organisation. Under this category, Business Visitors are unable to work and can only attend business meetings together with other prescribed activities. Pursuant to the recent changes, these prescribed activities now also:

  1. allow for scientists and researchers to share knowledge, expertise and advice on an international project which is being led by the UK;
  2. create a provision for overseas lawyers, who are employees of international law firms which have offices in the UK, to provide direct advice to clients in the UK on litigation or international transactions provided they remain paid and employed overseas; and
  3. allow graduates of an overseas nursing school to be admitted as a Business Visitor in order to the sit the Objective Structured Clinical Examination (OSCE), which is required before any overseas nurse can work in the UK under the Tier 2 route. This provision has been included in Part 3 of the Immigration Rules where similar provisions exist for medical graduates taking the Professional and Linguistic Assessments Board (PLAB) test who are processed as Business Visitors.

PRIVATE MEDICAL TREATMENT VISITORS

Currently, visitors who come to the UK to receive private medical treatment can only stay for up to six months. However, UKVI appreciates that certain types of medical treatments last longer than six months and, as such, changes are being made to allow Private Medical Visitors to apply for a visa for up to 11 months at the outset where the visitor has provided evidence from a medical practitioner of the likely duration of their treatment.

Private Medical Visitors will also be able to apply to extend their leave for an additional period of up to six months where there is an ongoing need to receive private medical treatment in the UK.

MARRIAGE/CIVIL PARTNERSHIP VISITORS

Visitors to the UK who intend to get married or form a civil partnership must have specific entry clearance for this purpose, regardless of their nationality. However, measures are being introduced to prevent a person coming to the UK for the purpose of entering into a sham marriage or a sham civil partnership. It is unclear at present what form these measures will take, but it is likely to include interviews and the provision of evidence to prove that the relationship and marriage are genuine.

TIER 1 OF THE POINTS-BASED SYSTEM

Tier 1 of the points-based system caters for high-value and highly skilled migrants, and currently consists of four categories: Tier 1 (Exceptional Talent), Tier 1 (Entrepreneur), Tier 1 (Investor) and Tier 1 (Graduate Entrepreneur). It also includes the Tier 1 (General) category, which was closed to new applicants in April 2011 but remains open for extension applications until 
5 April 2015 and indefinite leave to 
remain applications until 5 April 2018.

The Tier 1 (Exceptional Talent) category was introduced for those who are leaders in their field or show exceptional promise in the fields of science, humanities, engineering and the arts, and have been endorsed by a designated competent body and wish to work in the UK. The following changes are being made to this category:

  • Successful applicants will be granted five years’ leave (rather than the present three years). UKVI believe that this will increase flexibility for applicants and the change also reflects a similar change introduced for Tier 2 applicants in April this year; and
  • The English language requirement is being removed for extension applications in this category. This is consistent with introducing a five-year grant period, as some applicants will no longer need to apply for extensions. It also safeguards against the possibility of an exceptionally talented applicant having no choice but to leave the UK as a result of being unable to show a suitable standard of English ability. However, the knowledge of language and life in the UK requirement will continue to apply for indefinite leave to remain applications.

The criteria applied by designated competent bodies when considering endorsements for applicants is being amended as follows:

  • minor clarifications are being made to the criteria applied by The Royal Society, The Royal Academy of Engineering and The British Academy;
  • the criteria applied by The Arts Council are being amended to clarify the documentary requirements and align the letter requirements for ‘exceptional talent’ and ‘exceptional promise’, enabling both standards to be assessed in a single application; and
  • the criteria and list of notable industry awards are being expanded for applicants in the film, television, animation, post-production and visual effects industry, on the advice of the Producers Alliance for Cinema and Television (PACT), who assess such applicants on behalf of The Arts Council.

TIER 1 (INVESTOR) CATEGORY

The Tier 1 (Investor) category currently caters for high-net-worth individuals making a substantial financial investment to the UK. Following a review by the Migration Advisory Committee, the recommendations contained within the report, published on 28 February 2014, are being implemented as follows:

  • The current £1m minimum investment threshold is being raised to £2m. The rationale for this increase may be 
dual-edged: firstly, to inflate the investment value, which has not been raised since 1994 when the UK Investor Immigrant Programme was first introduced, to represent a more significant sum in today’s financial environment, and secondly, the increased investment value is likely to deter or prohibit potential applicants.
  • The full investment sum will be required to be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK government bonds), rather than 75% of the sum as at present.
  • The current requirement that the migrant’s investment must be ‘topped up’ if its market value falls will no longer apply. Instead, Tier 1 (Investor) migrants will only need to purchase new qualifying investments if they sell part of their portfolios and need to replace them in order to maintain the investment threshold.
  • The existing provision under which the required investment sum can be sourced as a loan is being removed.
  • Transitional arrangements are being applied, so that migrants granted Tier 
1 (Investor) status prior to these 
changes being introduced will not be subject to the new criteria when they apply for extensions or for indefinite 
leave to remain.
  • Entry Clearance Officers and UKVI caseworkers are being empowered to refuse a Tier 1 (Investor) application 
if they have reasonable grounds to believe that:
    • the applicant is not in control of the investment funds;
    • the funds were obtained unlawfully (or by means which would be unlawful if they happened in the UK); or
    • the character, conduct or associations of a party providing the funds mean that approving the application is not conducive to the public good.

TIER 1 (ENTREPRENEUR) CATEGORY

The Tier 1 (Entrepreneur) category caters for applicants coming to the UK to set up, take over, or otherwise be involved in the running of a business in the UK. This category has the potential to benefit the UK economy but, according to UKVI, has been heavily abused in recent years. The following changes are therefore being 
made to this category:

  • For applications made in the UK, the funds to be invested in the UK business are now required to be in the UK at the time of application, in order to assist UKVI in verifying that the funds are genuinely held and controlled by the applicant;
  • Applicants for indefinite leave to remain will be required to show that they have invested their funds, if they have not been required to do so in a previous application. This change will apply to applicants for accelerated indefinite leave to remain and who have not previously made an extension application;
  • A number of technical clarifications are being made to the evidential requirements relating to funding held 
in joint accounts, multiple bank accounts, or another business; and
  • Clarifications are also being made to the evidential requirements where an applicant has already established a business, to the job creation requirements for indefinite leave to remain, and to the definitions of ‘venture capital firms’, ‘new businesses’ and ‘property development or property management’. These clarifications are being made due to various enquiries on these subjects.

TIER 1 (GENERAL) CATEGORY

The Tier 1 (General) category, in which applicants scored points for their qualifications, previous earnings, age and UK experience, was closed to new applicants in April 2011 but remains open for extension applications until 5 April 2015 and indefinite leave to remain applications until 5 April 2018.

However, the grant periods are being adjusted for Tier 1 (General) extensions to either three years (as at present) or the balance the applicant requires to take their time in the category to five years, whichever is longer. This allows applicants to accrue five years in the category before the closing date, even if their original grant was delayed due to a refusal and appeal. The Home Office confirms that it will assess the provisions that will be required for indefinite leave to remain applications once all extension applications have been processed after April 2015, and will consider making adjustments in a future statement of changes.

TIER 2 OF THE POINTS-BASED SYSTEM

Tier 2 of the points-based system caters for migrant workers with an offer of a skilled job from a licensed employer. There are four overall categories: Intra-Company Transfer, General, Minister of Religion, and Sportsperson. The following changes are being made to Tier 2:

  • An assessment of whether a genuine vacancy exists is being added to Tier 2 (Intra-Company Transfer) and Tier 2 (General) categories. This change empowers entry clearance officers and caseworkers to refuse applications where there are reasonable grounds to believe that the job described by the sponsor does not genuinely exist, has been exaggerated to meet the Tier 2 skills threshold or (in respect of Tier 2 (General)) has been tailored to exclude resident workers from being recruited, or where there are reasonable grounds to believe that the applicant is not qualified to do the job.
  • An existing requirement in the published guidance for sponsors is that Tier 2 migrants cannot be sponsored to fill a position, undertake an ongoing routine role or to provide an ongoing routine service for a third party who is not the sponsor. This requirement is being replicated in the Immigration Rules for transparency and completeness. This also enables applications by individuals for entry clearance or leave to remain, and applications by sponsors for Restricted Certificates of Sponsorship, to be refused in line with any wider compliance action relating to the sponsor in question.
  • Provisions relating to overseas nurses and midwives are being amended to reflect changes in practice by the Nursing and Midwifery Council (NMC).
  • A change is being made to the Tier 2 (General) provisions for extension applications where the applicant is continuing to work in the same occupation for the same sponsor. Such applicants are exempt from the resident labour market test. Currently the exemption only applies if the applicant still has current leave as a Tier 2 (General) migrant when the extension application is made. The change will enable the applicant to benefit from the extension if their previous leave as a Tier 2 (General) migrant expired no more than 28 days before the submission of the extension application.
  • A temporary provision, dating back to 2009, waiving the £20,500 minimum salary threshold where companies 
are reducing their employees’ hours in order to avoid redundancies, is being removed. This was introduced in response to the economic situation at the time and was only ever intended to be a short-term measure.
  • A temporary exemption from the requirement to advertise via Jobcentre Plus (or Jobcentre Online in Northern Ireland) exists for NHS positions advertised on NHS Jobs. This exemption was due to expire on 1 October 2014 but is being extended to 6 April 2015 while ongoing technical issues are resolved.
  • It is not possible for applicants to switch from the Tier 2 (Intra-Company Transfer) category to other Tier 2 categories within the UK, unless they entered under the Tier 2 (Intra-Company Transfer) rules in place before 6 April 2011. A drafting error meant that the time spent in Tier 2 (Intra-Company Transfer) counted towards the maximum period of six years that applicants may spend in other Tier 2 categories. This is being corrected.
  • An amendment is being made to the conditions of leave for Tier 2 (Sportsperson) migrants, enabling them to take additional employment as a sports broadcaster, in line with the conditions for sportspeople in the Creative and Sporting sub-category of the Tier 5 (Temporary Worker) category.

TIER 4 OF THE POINTS-BASED SYSTEM

Paragraphs 245ZV(da) and 245ZX(ea) of the Rules require that Tier 4 (General) students applying for a visa or an extension of stay, and who want to undertake a course at a higher education institution in a discipline set out in Appendix 6 of the Rules, hold a valid Academic Technology Approval Scheme (ATAS) certificate from the Counter-Proliferation Department of the Foreign and Commonwealth Office.

UKVI is also amending the Rules to 
make clear that a new ATAS certificate must be obtained if the course content changes, if the course end date is postponed significantly, or if the 
student wants to start a new course 
that requires ATAS clearance.

TIER 5 YOUTH MOBILITY SCHEME

Tier 5 of the points-based system is currently responsible for both youth mobility and temporary workers coming to the UK for primarily non-economic purposes, and consists of two categories: Tier 5 (Youth Mobility Scheme) and Tier 5 (Temporary Workers). The Temporary Workers category consists of five sub-categories: creative and sporting, charity workers, religious workers, Government Authorised Exchange, and international agreement. Applicants must have a Tier 5 sponsor, which is usually their UK employer.

On the Youth Mobility Scheme, the annual allocations for participating countries are being set for 2015. There is an increase in the allocations for New Zealand to 16% since it has attracted a higher number of British youth under its reciprocal scheme in 2013 than in the previous year.

GOVERNMENT AUTHORISED EXCHANGE PROGRAM

The Government Authorised Exchange category enables people to come to 
the UK to share knowledge, skills and gain work experience through individual schemes which are administered by an overarching sponsor.

Under the Government Authorised Exchange category, UKVI is adding two work experience schemes. The first is an exchange between the Scottish Schools Education Research Centre (SSERC) and the Development Centre, Ministry of Education in China (EERDC), which enables teachers to support school educators in both Scotland and China through sharing knowledge and best practice on educational resources.

The second is a scheme administered by Twin Training International to offer work experience opportunities to overseas engineering students (undergraduates and graduates). As with all Government Authorised Exchange schemes, the activities that participants undertake are strictly supernumerary and skilled at level 3, or above, on the UK’s national qualifications framework. National minimum wage legislation also applies.

UKVI has removed four Mandarin teachers’ schemes which are now part of the overarching Mandarin teacher scheme that is administered by Hanban UK Ltd. This overarching scheme operates with all UK Confucius Institutes and Classrooms and provides greater consistency regarding the administration of work placements for Hanban teachers.

KNOWLEDGE OF LANGUAGE AND LIFE

The changes to applications for indefinite leave to remain and the requirement to demonstrate knowledge of language and life in the UK make it clear that the secretary of state may require an applicant to attend an interview and/or to retake the relevant examinations or tests in order to satisfy the secretary of state that the knowledge of language and life requirement is met.

CONCLUSION

HC 693 is by far one of the biggest recent shake-ups in the Immigration Rules since it cuts across a vast number of immigration categories and therefore affects a higher number of employers, employees and applicants currently under independent immigration categories. As such, one would have thought that these changes would be 
in-line with the spirit of the points-based system, which was introduced in 2008 to render the Immigration Rules more transparent and easier to understand for employers, educators and applicants alike.

Although some of the changes are undoubtedly necessary, giving caseworkers the responsibility to assess and refuse applications under Tier 2 on the basis that ‘the secretary of state believes that the job description is not a genuine vacancy’ only seems to suggest that merely meeting the points requirement is no longer enough to ensure a successful application. This means that caseworkers now have discretion on points-based system applications, with the result that the process is no longer objective. The subjective nature of the 
pre-2008 system was a major criticism of the UK immigration process and in 2008, the launch of the points-based system was to herald a new era of objective immigration processes with little or no room for the ambiguity of discretion being applied to straightforward applications.

Given the above, it appears that the Immigration Rules are gradually returning to the uncertainty of the UK immigration system pre-2008 when decisions were almost entirely up to the discretion of the caseworker. Whether we see a complete return to this arbitrary decision-making process will only be determined in time, 
but with ‘genuineness’ tests now seeping into every tier of the points-based system, this step back in time for UK immigration seems inevitable.

By Tilly Oyetti, partner and 
Natalie Loader, solicitor, Magrath LLP.

Contact: tilly.oyetti@magrath.co.uk; 
natalie.loader@magrath.co.uk.