Legal Briefing

Further changes from the UK Border Agency

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Immigration | 26 February 2013

The Immigration Rules are constantly changing and, with a number of amendments made throughout the year, even the UK Border Agency (UKBA) is struggling to keep up. It is important to remember how many people these changes affect – according to the 2011 census almost 8.5m people who live here were not born in England and Wales. Headlined as ‘non-substantive’, the ninth Statement of Changes HC 820 for 2012 came into force on 13 December 2012. Although made generally with clarification in mind, it also includes some new provisions.


CHANGES TO THE POINTS-BASED SYSTEM

Tier 1

Tier 1 has five immigration routes available to exceptionally talented and highly skilled workers, investors and entrepreneurs wanting to work in the UK.

The government always wants to encourage economic growth and entrepreneurship. It therefore comes as no surprise that the changes to the Tier 1 (entrepreneur) category have generally widened the provisions, enabling more successful initial applications. The changes include an expansion of specified sources, enabling the investment of £50,000 to include funding from devolved government administrations; and the English language requirement is reduced from C1 (advanced) to B1 (intermediate). There is also clarification on how to prove that the occupation due to be undertaken is at NQF level 4 for individuals switching from the closed Tier 1 (post-study work) route.

A loophole has also been closed that may have been exploited by some who had no intention of investing funds in the UK. Funds now cannot be used if promised to another individual unless applying under an entrepreneur team. In respect of extension applications there is more leniency where letters from HM Revenue & Customs (HMRC) are required, as they can now be dated within eight months of entry rather than 
six months.

Changes to the Tier 1 (investor) category include the curtailment of leave if the level of required funds is not maintained for the duration of the migrant’s visa and points will not be awarded where loans have been taken out against the investments, or the investments are held in offshore custody. This is to ensure that migrants do not abuse the category. As with the Tier 1 (entrepreneur) category, the rules relating to financial institutions that do not satisfactorily verify financial statements also apply to Tier 1 (investor) applications. There is a new provision to prevent migrants working as professional sportspeople.

Although the Tier 1 (general) category is now closed to new applications, migrants are able to make extension applications in-country. To complete a further or indefinite leave to remain application in the UK, the applicant will need to score points as required at their initial grant of leave. There has been an amendment to the rules relating to the calculation of points for earnings and employer pension contributions will now not count towards points awarded for previous earnings.

Tier 2

Since 6 April 2011, applicants who applied for entry as a Tier 2 (intra-company transfer (ICT)) long-term migrant could not remain in the UK for more than five years in this category. Having taken into consideration the restraints placed on businesses, this rule has been relaxed for senior ICT migrants who applied on or after this date. Provided their earnings are at or above £150,000 per year, they may now extend their stay in the UK for up to nine years. A point to note here is that migrants who earn £150,000 or above will qualify for a Tier 2 (general) visa without a resident labour market test having to be conducted, as long as they meet the other requirements of the category. This option may be better for an employer, as this route will lead to settlement under the current rules, allowing migrants to plan for a permanent future in the UK. All other transferees remain restricted to a maximum of five years residence in the UK if they applied on or after 6 April 2011.

The ‘cooling off’ period was introduced by the UKBA on 6 April 2012. This meant that any Tier 2 migrant whose visa was cancelled/expired and who had left the UK having not made a fresh in-country application, would be subject to a 12-month ban from making an application to reapply under this category. The beginning of the ‘cooling off’ period initially ran from the visa expiry: however this has been changed to run from the date on which the migrant can show that they left the UK. Previously, migrants relied on the UKBA to curtail their leave once notification had been sent by the employer confirming an end to their sponsorship via the sponsor management system. In practice, this process was lengthy and relied on the UKBA taking proactive steps to curtail the migrant’s leave. This at times was impossible as the migrant may have left the UK and was then required to provide the UKBA with their passport to complete the curtailing process. This change will require migrants to prove when they left the UK and that they remained outside the UK. Providing this test is satisfied, the cooling-off period will run from the date they can evidence departure. This is a welcome change not just for migrants but their employers also, creating flexibility in planning future UK employment.

Migrants under Tier 2 may undertake supplementary employment of up to 20 hours per week, in addition to the employment that they are being sponsored for, as long as it is in the same occupation and at the same professional level. They may now also undertake supplementary employment within a shortage occupation that is not required to be at the same professional/occupation level.

Other changes in this category allow for barristers to apply as Tier 2 migrants, as this occupation is now listed within the Occupational Codes of Practice. As with 
Tier 1 (general), employer pension contributions will not now count towards appropriate salary points for Tier 2 (general) and Tier 2 (ICT) applications.

Tier 4

Tier 4 allows non-EEA nationals, whether adults or children, to enrol on a course of study in the UK. The changes to the Tier 4 (general) category include relaxing conditions restricting employment in 
the UK – ie a doctor or dentist in training 
as soon as they have submitted an application in which they are sponsored 
to do an NHS foundation programme and self-employment if sponsored under Tier 1 
(graduate entrepreneur). Other changes include enabling a loan letter provided by a government or government-sponsored loan company to evidence the required level of maintenance. There is further clarification on the post-graduate legal courses that are exempt from the time limit on study, such as a law conversion course validated by the Joint Academic Stage Board, the Legal Practice Course and the Bar Professional Training Course. Educational institutions that have not achieved the highly trusted sponsor status remain subject to an interim limit on the number of students they can sponsor: the original interim limit was due to expire on 31 December 2012 but has been extended until 30 June 2013.

Tier 5

The Tier 5 Youth Mobility 2013 allocations have been released (see table below).

The international agreement sub-category of Tier 5 temporary worker category has been expanded to provide specific provision for contractual service providers who are seeking permission under the relevant commitments in international trade agreements that the UK is party to. The entry requirements are now:

  • the worker must be employed by a business that is located in the territory of a country that is party to such an agreement and that has no commercial presence in the EU;
  • the service that the business is supplying to the Tier 5 sponsor is a service that falls within a sector on which the UK has taken commitments 
in such an agreement;
  • the service is being supplied pursuant to a contract that has been openly tendered;
  • the Tier 5 sponsor will be the final user of the service – no third party;
  • the applicant is a national of the country in which the sending business 
is located;
  • the applicant has been employed by the sending business for at least one year prior to the date of the application; and
  • the applicant meets the specified skills requirements.

PBS dependants

There has been a minor alteration for points-based system (PBS) migrant dependants that makes the rules more workable to everyday situations, rather than being rigid and penalising those it was never intended to penalise. The changes now allow a child to come to the UK with or to join parents other than where one is a PBS migrant and the other is a dependant, establishing the possibility of a child entering where both parents are PBS migrants.

Indefinite leave to remain (ILR)

An area that has caused much confusion for applicants when making an ILR application in one of the work categories is the amount of absences the migrant is allowed to have outside the UK. This has now been defined by the UKBA as being up to 180 days in each 12-month period, starting at the date of application and working 12 months back from that date. The proviso is that, if there are excess absences, they must have been for a purpose that is consistent with the continuous permitted employment – including paid annual leave, initial grant of the visa, or for serious or compelling reasons. Excess absences that do not fall within the definition, as provided by the continuous residence guidance, will fall 
for refusal.

OTHER CHANGES

Family members of British citizens

Numerous changes have been made to 
the evidential requirements set out in Appendix FM following its introduction in July 2012. These changes affect those coming to the UK as a family member of 
a British citizen or settled person. Some 
of the changes reflect omissions made in the original drafting, such as bereaved partners and victims of domestic violence being able to benefit from transitional arrangements under Part 8. There is also an addition for more common separated families’ situations where parental responsibility is shared rather than being 
on a sole basis. They have inserted ‘where the applicant normally lives with this parent and not their own parent’, allowing applications where the British citizen does not have sole responsibility as previously required in such cases.

It is now accepted that a ‘one size fits 
all’ approach, when introducing the mandatory framework, is not realistic. The changes include allowing applications to be deferred pending submission of missing evidence or the correct version of it within a reasonable deadline. This enables applications to be granted despite minor evidential problems where the caseworker is otherwise satisfied that the applicant meets the requirements to which the document relates.

Criminality

When making an application under the immigration rules a migrant must satisfy the requirements as listed in the section of the rules relating to their visa category. There are also mandatory and discretionary grounds of refusal listed under Part 9 of the rules, which must also be considered for all applications for entry clearance, leave to remain and ILR. The UKBA felt that there was an inconsistent approach taken when considering criminal convictions, and has therefore introduced the ‘criminality’ element within Part 9 and Appendix FM of the rules, in the hope that this will provide a more clear framework.

CONCLUSION

The UKBA is likely to release a statement of intent early this year, with these changes coming into force at the beginning of April 2013. Since April 2012, we have seen the Migration Advisory Committee seek consultation and call for evidence in the areas of Tier 2 with a particular focus on the codes of practice and shortage occupations. UKBA is also undertaking a project of interest in ‘Analysis of the impacts of Tier 1 (investor) and Tier 1 (entrepreneur) migrants on the UK economy’. It is likely we will therefore see further changes/clarification in these areas in April or later in the year, in addition to the other areas of immigration law, which as you can see, are always evolving.