Legal Briefing

Changes to the Immigration Rules – November 2016

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Immigration | 24 January 2017

In March 2016, the Home Office announced that there would be two phases of changes to the Tier 2 sponsorship regime following a review of the category published by the Migration Advisory Committee (MAC) on 24 March 2016. The first of the phases had been due in autumn 2016. On 3 November 2016, the Home Office finally published its Statement of Changes. Together with the expected changes to the Tier 2 category, a number of other significant changes to the Immigration Rules were also announced and came into effect on 24 November 2016.

PROCEDURAL CHANGES

Removal of 28-day grace period

 The Immigration Rules previously allowed applicants to apply for further leave to remain in the UK beyond the expiry of their visa (‘out of time’), provided the application was made no later than 28 days following the expiry date. This is known as the ‘grace period’, and is disregarded for the purposes of establishing whether an applicant has overstayed their visa. The government has indicated that the 28-day grace period was initially introduced so that people who had made an innocent mistake were not penalised in the immigration application process.

As of 24 November 2016, such ‘out of time’ applications must now be submitted within 14 days of visa expiry and applicants must also satisfy the Home Office that there was a good reason, beyond the control of the applicant or their representative, why an ‘in time’ application could not be made. This is a significant change as, previously, no reasons had to be provided when submitting an application out of time within the first 28 days following visa expiry. Applicants will now need to ensure that applications for further leave to remain are made before the expiry of their leave, unless there is a strong reason for not doing so, in order to avoid the application being refused. It remains to be seen how the Home Office will implement the rule on what constitutes a ‘good reason’.

In addition, the 28-day grace period which previously applied to those who have had their leave extended by section 3C of the Immigration Act 1971 (following submission of an appeal or administrative review), and which allowed an applicant to submit a new application for further leave to remain following the administrative review/appeal decision, has also been reduced to 14 days.

The government has confirmed that Indefinite Leave to Remain (ILR) applications will continue to disregard a period of 28 days overstay for the purposes of establishing continuous lawful residence, provided this occurred before 24 November 2016.

POINTS-BASED SYSTEM CHANGES

Tier 1 (Entrepreneur)

In recent months, a number of applications made within this category have been confused by the poor drafting of the Immigration Rules, especially regarding the evidential requirements. The Home Office Statement of Changes confirms that a widely welcomed clarification will be made to the existing Immigration Rules in relation to the requirements for:

  • job creation;
  • acceptable evidence to demonstrate Pay As You Earn reporting to HMRC;
  • those supplying third-party evidence do not need to provide bank statements covering a consecutive 90-day period;
  • applicants who are themselves accountants cannot sign-off on their own accounts; and
  • the company’s Register of Members must come from Companies House Direct rather than the free to access website.

This will undoubtedly make preparing an extension application within this category significantly clearer.

Tier 1 (Exceptional Talent)

A few technical changes have been made to this category for applications submitted from 19 December 2016. The policy guidance updates the list of acceptable awards within the film, television, animation, post-production and visual effects industries. In addition, with regard to applications made from the Isle of Man, it has been confirmed that endorsement applications will be considered by the same designated competent bodies as those in the UK. It has further been confirmed that evidence originating from the Isle of Man will be acceptable for obtaining an endorsement, and that the annual limit of 1,000 places within this category includes applicants applying from the Isle of Man.

Changes to the Tier 2 Scheme

 Following the MAC review, the government announced that changes would be made to the Tier 2 (General) and Tier 2 (ICT) immigration categories in two stages. The first set of changes was introduced in November 2016 and the second is scheduled for April 2017.

The main theme from the changes is an increased burden on the costs that businesses wishing to sponsor a non-EU national will need to pay: the minimum salaries that apply for a role to be eligible for Tier 2 sponsorship have increased, the introduction of an Immigration Skills Levy (in April 2017) will cost a sponsor an extra £1,000 for each year a visa is valid, and the requirement to pay the Immigration Health Surcharge for Tier 2 ICT migrants who were previously exempt from this charge. For example, a three year Tier 2 ICT visa will now cost a sponsor at least an additional £3,600 from April 2017 onwards. 

Tier 2 General

In order to be sponsored under Tier 2 General, an experienced worker now needs to be paid a salary in excess of £25,000 per annum. The government intends to increase this minimum salary requirement even further to £30,000 in April 2017. This is a significant increase considering the minimum salary prior to November 2016 was £20,800. As a transitional arrangement, the minimum salary threshold of £25,000 will not apply to workers who are sponsored as Tier 2 (General) migrants prior to 24 November 2016 if they make an application to extend their stay. However, there will be no transitional arrangement for workers whose sponsorship under Tier 2 (General) commences between 24 November 2016 and April 2017; these migrants will be required to satisfy the £30,000 threshold in any future application.

Until July 2019, the following professions will be exempt from this minimum salary increase:

  • nurses;
  • medical radiographers;
  • paramedics;
  • secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin.

Nurses will continue to be retained on the Shortage Occupation List. However, a Resident Labour Market Test will now need to be carried out before a nurse is assigned a Certificate of Sponsorship.

The minimum salary required for a ‘new entrant’ remains at £20,800. New entrants are those able to switch from a Tier 4 General student visa to a Tier 2 General visa, those who are under 26 on the date the application is made, and those recruited through a university milkround. Changes are, however, being made to permit applicants switching their immigration status from Tier 4 General student visas to Tier 2 only where the applicant has studied at a UK-recognised body or body in receipt of public funding as a higher education institution. In addition, changes are being introduced to prevent Tier 4 General migrants switching into Tier 2 where an applicant is relying on a qualification obtained via supplementary study. Further, from April 2017, sponsors will be permitted to rely on a university milkround that ended up to four years prior to assigning a Tier 2 General Certificate of Sponsorship but only if the worker was offered the job within six months of that milkround taking place.

In further concessions afforded to UK graduates, those who have returned overseas to apply for Tier 2 General visas will have their roles weighted more heavily in the monthly Tier 2 General Restricted Certificate of Sponsorship allocation rounds, thereby increasing their chances of having the Restricted Certificate of Sponsorship application approved. Further, graduates who apply in the UK will continue to be exempt from the annual quota limit for Tier 2 General Restricted Certificate of Sponsorships (currently set at 20,700 per annum). Applicants who are sponsored in graduate training programmes are also permitted to change occupation within the programme or at the end of the programme without the need to carry out a Resident Labour Market Test or to make a fresh application.

Tier 2 (Intra Company Transfer)

The Skills Transfer Intra Company Transfer (ICT) subcategory closed in November 2016. The Skills Transfer subcategory allowed a sponsor to bring an overseas employee to the UK for a maximum period of six months. Unlike the Short Term and Long Term subcategories, the employee did not have to be employed by the business for a 12-month period before being eligible to apply. From April 2017, the requirement for a 12-month period of employment at an overseas linked entity will not be required if the salary will be over £73,900.

In November, the minimum salary requirement for Short Term ICT applicants increased from £24,800 to £30,000. The salary threshold for the Graduate Trainee sub-category has, however, been reduced from £24,800 to £23,000. In addition to this, the number of Graduate Trainee places a sponsor can use has increased from five to 20 per year.

In April 2017, the ICT route will face further changes with the Short-Term subcategory closing to new applicants. A sponsor wishing to bring skilled staff from their overseas entities will therefore have to use the Long Term subcategory, the minimum salary threshold being £41,500 per year.

The 12-month cooling off period continues to apply which means that once a Tier 2 sponsored worker leaves the UK having completed an assignment, they will be restricted from applying for a another Tier 2 visa for 12 months unless they will be paid a salary that meets the higher threshold. From April 2017, this higher threshold for ICT workers will be reduced from £155,300 to £120,000.

Sponsors will therefore need to plan carefully for overseas staff wishing to use the ICT route. For instance, consideration should be given as to whether the assignment could be completed within three months so as to take advantage of the exception to the cooling off period (which does not apply to assignments of three months or less) or whether the activities could fall under those permitted by the business visit rules.

CHANGE TO OTHER IMMIGRATION CATEGORIES

Family and private life

The most significant changes being made to the Immigration Rules relating to applications being made on the basis of family and private life relate to a new English language requirement being introduced for those seeking to extend their initial two and a half year visa as a partner or parent of a British citizen. Currently, at both the entry clearance and extension stage, the applicant has to show that they have obtained an English language qualification at minimum level A1 of the Common European Framework for Reference of Languages (CEFR). For extension applications being submitted on or after 1 May 2017, applicants must now show a minimum of CEFR level A2.

Other changes within the Family and Private Life categories include those who have made false representations or failed to disclose any material fact in a previous refusal will normally be refused on grounds of suitability.

An application can be refused on a discretionary basis where the applicant has NHS debt of £1,000. This figure is being reduced to £500.

A child is only eligible to apply for entry clearance or leave to enter or remain in the UK under Appendix FM when their parent is applying for or has leave under Appendix FM.

Conclusion

In publishing the changes to the Immigration Rules, the government explained that the main purpose was to implement the first of two phases of changes to the Tier 2 regime and to introduce other changes across other immigration categories.

Mention was also made of the UK’s referendum on leaving the EU, and it was confirmed that the UK remains a full member of the European Union and all the rights and obligations of EU membership remain in force. The next few months will be an interesting time in immigration law as decisions on the UK’s exit from EU will certainly impact not only on European migration but the government’s policies on immigration into the UK from outside Europe.