Legal Briefing

UK immigration: winter 2012-13 update

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Human resources | 01 March 2013

In November 2012, the government introduced yet more changes to the immigration rules, the majority of which came into force from 13 December 2012.


The changes include some amendments across all tiers of the points-based system (PBS) and some changes to the rules on family and private life, as well as a new criminality threshold for all applicants. Important clarification was provided on calculating continuous residence requirements for work-related settlement applications. The changes to the rules are extensive, and it is not possible to set out all of them here. The most noteworthy amendments are summarised below.

Tier 1 (Exceptional Talent)

There has been an amendment to the initial period of leave granted to increase it from two to three years.

Tier 1 (Entrepreneurs)

The English language requirement has been lowered from level C1 (advanced) to level B1 (intermediate).

Tier 1 (Graduate Entrepreneur)

Students can no longer switch directly into this category unless they have secured their investment from a registered venture capital firm, a UK government or devolved administration department, or a listed seed funding competition.

Tier 1 (Investors)

Investors are now required to provide evidence as to the source of any additional funds relied on should they wish to take the accelerated route to settlement. Investors who fail to maintain their investment throughout the period of their leave face having their leave curtailed. They are also now not allowed to work as professional sportspeople while in the UK!

Tier 2 (ICT)

The rules have been amended to 
increase the maximum stay in the UK 
for applicants earning £150,000 or more from five years to nine years in the long-term staff sub-category.

With regard to the ‘cooling off’ period, applicants can now rely on the date that they left the UK (rather than the date of 
the expiry of their Tier 2 visa) as the start date for the 12-month lock-out period, 
but the burden will be on the applicant to show that they left and remained outside of the UK.

Tier 5: annual allocation of places 
for the youth mobility scheme

The statement of changes has amended the number of places available to some countries and territories participating in 
the Tier 5 youth mobility scheme. From 
1 January this year, the number of places available for 2013 will be:

  • Australia – 35,000 places.
  • Canada – 5,500 places.
  • Japan – 1,000 places.
  • New Zealand – 10,000 places.
  • Monaco – 1,000 places.
  • Taiwan – 1,000 places.
  • South Korea – 1,000 places.

All other allocations remain unchanged 
from 2012.

PERMITTED ABSENCES IN 
CALCULATING THE RESIDENCE 
PERIOD FOR PBS MIGRANTS

For all applications made for settlement by workers in the UK, further general requirements have been inserted providing clarification on the definition of unbroken leave, confirmation of the number of days of absence permitted, and the incorporation of the 28-day ‘grace period’. Absences from the UK need to have been for a purpose consistent with the permitted basis of stay in the UK unless serious or compelling reasons apply, and specified documentary evidence requirements have been introduced. The changes state:

  • The continuous period of five years lawfully in the UK means residence in the UK for an unbroken period with 
valid leave.
  • The period will not be considered to have been broken where the applicant has been absent from the UK for a period of 180 days or less in any of 
the five consecutive 12-month periods preceding the date of the application 
for leave to remain.
  • The period will not be considered to have been broken where the applicant has left the UK and their leave expired no more than 28 days prior to a further application for entry clearance being made or while the determination of the application is pending.
  • The period will not be considered to have been broken where the applicant has any period of overstaying between periods of entry clearance, leave 
to enter or leave to remain of up to 
28 days. Any period of overstaying pending the determination of an application made within that 28-day period will be disregarded.
  • Except for periods when the 
applicant had leave as a Tier 1 
(General) migrant, a Tier 1 (Investor) migrant, a Tier 1 (Entrepreneur) 
migrant, a Tier 1 (Exceptional Talent) migrant, a highly-skilled migrant, a businessperson, an innovator, an investor, or a self-employed lawyer, writer, composer or artist, the applicant must have been employed in the UK continuously throughout the five years, under the terms of their certificate of sponsorship, work permit or in the employment for which they were given leave to enter or remain. There are exceptions to this provision.
  • Any absences from the UK during the five years must have been for a purpose that is consistent with continuous employment, including paid annual leave, or for serious or compelling reasons.

SPECIFIED EVIDENCE FOR 
THE RESIDENCE PERIOD

There is a requirement now for applicants to provide specified evidence in respect of absence from the UK. Applicants will need to provide:

  1. a letter from their employer detailing the purpose and period of absences in connection with the employment, including periods of annual leave;
  2. where the absence was due to a serious or compelling reason, a personal letter from the applicant which includes full details of the reason for the absences and all original supporting documents 
in relation to those reasons.

If the applicant qualifies for settlement under Part Six of the Immigration Rules or as a Tier 1 (General) migrant, where their absence was due to a serious or compelling reason, they will need to provide a personal letter which includes full details of the reasons for their absence and all original supporting documents in relation to those reasons.

SPECIFIED EVIDENCE FOR PBS AND 
FAMILY MEMBER APPLICATIONS GENERALLY

Amendments have been made to the rules that apply in circumstances where an applicant has failed to provide the required specified evidence in a PBS or family member application. Previously, where an applicant had provided a document in the wrong format or a copy instead of an original, or had failed to provide a document in a sequence of documents such as a bank statement, the rules stated that the UK Border Agency (UKBA) would contact the applicant to request the correct documents. This has been amended to say that the UKBA ‘may’ contact the applicant. In other words, the agency is not obliged to contact applicants and can, if deemed appropriate, refuse the application.

On the other hand, the changes have also introduced the exercise of discretion by the UKBA to grant approval where a document has been submitted in the wrong format or where a photocopy has been submitted instead of an original. The application can be granted exceptionally providing UKBA staff are satisfied that the specified documents are genuine and that the applicant meets all the other requirements. The UKBA may request the correct specified original documents but can also refuse the application.

This means that, while the obligation has been taken away from the UKBA to contact applicants in the event of a minor problem with their documentation, they have increased discretionary powers to grant applications. Since the rules make it clear that this would be an exception, the exercise of discretion should not be relied upon, and applicants should ensure that they submit all of the specified documents in the correct format.

CHANGES TO THE CRIMINALITY REQUIREMENTS

The immigration rules have been 
amended across the board to remove the reference to one or more unspent convictions within the meaning of the Rehabilitation of Offenders Act 1974, and substitute the requirement that an applicant does not fall under the general grounds for refusal for an application for settlement to be successful. The general grounds for refusal are wider and include discretionary as well as obligatory grounds. This could potentially result in more applications being refused, since the grounds include many situations where the applicants do not have criminal convictions.

SPECIFIED FINANCIAL EVIDENCE 
IN FAMILY APPLICATIONS

From 13 December 2012, the requirement to provide a P60 and a contract of employment as specified financial evidence for salaried employment in support of family applications has been removed.

The rules, however, do state that applicants may provide these documents if they wish to ‘in addition’ to the required specified evidence. It is not clear in what circumstances this would apply since they are not required documents. Even more confusingly, the new rules allow for an entry clearance officer or decision maker to request these documents. If they are not provided, an entry clearance officer ‘may’ grant the application ‘if otherwise satisfied that the requirements of this appendix relating to that employment are met’. If the only requirement referred to is to provide the specified evidence, this addition to the rules does not assist in any way in the interpretation of when the P60 and/or contract of employment would be required, and when an entry clearance officer would be entitled to refuse an application for failure to provide them. Until such clarification is forthcoming, it is at least small relief to family members applying to come to the UK to have the already heavy evidential burden alleviated slightly. Regrettably, in relation to salaried employment, the prospective earnings of the incoming partner are still not allowed to be taken into consideration; something which could have been amended with this statement of changes, and which will hopefully be reviewed in due course.

CHANGES IN EFFECT FROM 
28 FEBRUARY 2013

Tier 4 applicants will be permitted to provide an original loan letter from a regulated financial institution to show that they have the required funds. The letter must be dated within the six months preceding the application and clearly show:

  • the applicant’s name;
  • the date of the letter;
  • the financial institution’s name and logo;
  • the money available as a loan;
  • for applications for entry clearance, that the loan funds are or will be available to the applicant before they travel to the UK, unless the loan is an academic or student loan from the applicant’s country’s national government and will be released to the applicant on arrival in the UK;
  • there are no conditions placed upon the release of the loan funds to the applicant, other than them making a successful application as a Tier 4 migrant; and
  • the loan is provided by the national government, the state or regional government or a government-sponsored student loan company or is part of an academic or educational loan scheme.

This is a welcome amendment to the specified evidence requirements, since many students who wish to study in the UK may need to borrow funds which may not yet be in their bank account, with the result that they are unable to evidence the funds at the time they make their visa application.

The rules make it clear, however, that the loan must be a student loan, and as such students will be limited as to the source of the loan that they can rely on.

CONCLUSION

The insertion of the residence requirements for applicants into the immigration rules is useful, but the specified evidence referred to is at present still relatively vague. Although the rules confirm that a letter needs to be provided from an employer (where employed) or a personal letter provided by the applicant detailing the reasons for absences from the UK, the specific evidence referred to which needs to accompany that letter is at present not clear, and only time will tell how much evidence is required or what types of evidence will be accepted or rejected.

The UKBA’s continuing review of the immigration rules has resulted in some sensible amendments to the PBS tiers. The changes to the specified evidence requirements for PBS applications and to family applications will hopefully allow more flexibility in decision making by the UKBA and remove the number of ‘mandatory’ refusals. Whether or not, in practice, this actually happens, remains to be seen.