Immigration Rules Roundup

Immigration Rules Roundup

Immigration Rules Roundup

Samina Iqbal

Nishan Paramjothy

1

Changes to the Immigration rules

-Most changes to come into effect on the 6th April 2012.

-Some changes to Tier 2 will affect those who were granted leave after 6th April 2011

PART 1: BY SAMINA IQBAL

Closure of Tier 1(Post Study Worker)

-Immediate Effect – current Tier 1 (PSW) can switch to Tier 2(general) as of the 6th April.

-Not necessary to complete 6 months employment in the same role with the same organisation, therefore by passing the resident labour market test

TIER 1

Tier 1 (Graduate Entrepreneur)

-Paragraphs 245F-245FBof the Immigration Rules

-A new Tier 1 (Graduate Entrepreneur) scheme has been introduced for those who have been identified by UK universities(Higher Education Institutions (HEIs)) as having developed world class innovative ideas or entrepreneurial skills but who are not yet in a position to meet the full requirements of the Tier 1 (Entrepreneur) route. Previously such graduates may have used Tier 1 (Post-Study Work) for this purpose.

-The scheme is open to all HEIs which are Tier 4 Highly Trusted Sponsors - the College fits into this category. The UKBA has written to HEIs to ask if they wish to participate in the scheme.

-HEIs will be able to decide how to best identify the strongest candidates and has a POSITIVE OBLIGATION to:

1)have an established process for identifying, nurturing and developing entrepreneurs amongst their undergraduate and postgraduate population;

2)maintain contact with migrants and assess their progress at regular intervals (at least quarterly); and

3)inform the UKBA if migrants are no longer participating in the scheme.

-For Applicants to qualify under this category they:

1)will need to be in the UK and;

2) sponsored by the HEI from which they have graduated.

-LIMIT :

1) 1,000 places for the first year

2)divided equally between participating HEIs.

-HOW LONG:

1) Initial 12 Months

2) Further 12 months ON CONDITION the sponsoring HEI is satisfied with the progress they have made.

3) Time in this category does not count towards settlement.

-CONDITIONS:

1)spend the majority of their time developing their businesses,

2)may undertake other work for up to 20 hours a week to support themselves.

3)Can sponsor dependants

4)At the end of the second year in this category, migrants must either switch into Tier 1 (Entrepreneur) or leave the UK.

-Non-compliance by HEI with its responsibilities under this route, will count against their Tier 4 Highly Trusted Sponsor status.

Tier 1 (Exceptional Talent)

-Paragraphs 245A-245BF of the Immigration Rules

-WHO IS IT FOR:Exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK.

-ANNUAL LIMIT: 1,000 places in 2011/12, 2012/13 and 2013/14.

-Further Review - spring/summer 2012.

VISITORS

NEW VISITOR ROUTE (permitted paid engagements)

-Paragraphs 56X-56Z of the Immigration Rules

-WHO IS IT FOR: professionals who are invited to come to the United Kingdom to carry out an engagement that relates to their particular skill or expertise for which they will receive a FEE.

-HOW LONG FOR:

  • 1 monthrestriction,
  • If longer required apply under the Points-Based System (as would have been the case in the past)

-WHAT CAN THEY DO:

  • visits to give a lecture, or to examine students, participate in or chair selection panels;
  • visits by overseas designated air-pilot examiners, to assess United Kingdom based pilots to ensure they meet that country‘s national air regulatory requirements;
  • visits to provide advocacy in a particular area of law as a qualified lawyer for the purposes of a court or tribunal hearing, arbitration or other form of alternative dispute resolution at the invitation of a client based in the United Kingdom or a foreign based client for legal proceedings in the United Kingdom;
  • visits by professional artists, entertainers and sports-persons carrying out activities relating to their main profession at the request of a United Kingdom based arts or sports organisation or United Kingdom based broadcaster. This would include for example, artists, sculptors and photographers who are exhibiting and selling their works; authors doing book-signings and/or participating in literary prize panels; entertainers giving one-off or a short series of performances and sports-persons carrying out broadcasting or other activities relating to their field of sport.

OTHER VISTOR VISA NEWS

-A clause in the Crime and Courts Bill, to remove the full right of appeal for those applying to enter the UK as a family visitor. This is subject to Parliamentary approval and Royal Assent

-This change is expected to come into force by 2014.

-Refused applicants will still be able to appeal on limited grounds of human rights or race discrimination.

-June 2012:

  • A secondary legislation to be introduced to tighten the family and sponsor definitions in family visit visa appeals.
  • Subject to Parliamentary approval, these changes are expected to come into force in July 2012.
  • Those applying to visit a cousin, uncle, aunt, niece or nephew will no longer have access to a full right of appeal, and to use that appeal right, the family member being visited in the UK must have settled, refugee or humanitarian protection status.
  • These changes will only affect applicants who have been refused a visa to visit family members.
  • No changes are being made to the rules governing who can qualify for entry to the UK as a visitor and genuine visitors are welcome!!!!

OVERSEAS DOMESTIC WORKERS

-Paragraphs 159A-159Hof the Immigration Rules

-This category enables people coming to the UK to bring with them their foreign domestic staff, for example nannies, chauffeurs and cooks.

-The following changes are being made for applicants who enter this category under these new Rules Those already in the category under the existing Rules will not be affected

-LIMIT:

  • Entry restricted to a maximum of six months, NO EXTENSIONS

-RESTRICTIONS:

  • Can only enter the UK, accompanying their employer (or the employer’s spouse or child) who is also coming here at the same time as a visitor or who has come here in that capacity;
  • Leave the UK at the same time as their employer;
  • NO change employer whilst in the UK
  • NOlonger able apply for settlement in the UK;
  • CANNOT bring dependants with them, unless they qualify in their own right, for example as a visitor.

-Thosewho applied for leave to enter or remain on or before 5 April 2012, continue to be treated under Immigration Rules in place on that date.

-Those in diplomatic households can apply to extend their stay for 12 months at a time up to a maximum of 5 years, or the length of the diplomat's posting, whichever is shorter.

CURTAILMENT

-The Immigration Rules currently set out when the UK Border Agency may curtail leave to enter or remain where a migrant is non-compliant.

-Discretionary casework requires case by case consideration.

-NEW POLICY: Where there is a non-compliance by an individual, then undera set of circumstances, curtailment will be mandatory, not requiring case by case consideration.

-

-HOW:

  • Triggered by notifications received from Sponsors under Tiers 2, 4 and 5 of the Points Based System which confirm that sponsorship has been withdrawn from a migrant for reasons of non-compliance or
  • By way of UK Border Agency investigations and / or Sponsor compliance visits that reveal such non-compliance.

-Mandatory curtailment will only occur where that temporary migrant is not pursuing the purpose of their leave.

-WHAT HAPPENS: Migrants subject to mandatory curtailment will normally be given 60 days to make an application to vary their leave or change their Sponsor. Unsuccessful applications to vary their leave and/or their Sponsor within the 60 days following mandatory curtailment will be subject to appropriate enforcement action.

-EXCEPTIONS:That is where curtailment won’t be mandatory and the UKBA will consider if appropriate:

  • the migrant is under 18 or has a child dependant.
  • the migrant has an outstanding application with the UK Border Agency for leave to enter or remain with another sponsor or in another immigration category or has a pending appeal under section 82 of the Nationality, Immigration and Asylum Act 2002.

PART 2: BY NISHAN PARAMJOTHY

Tier 2

Tier 2 (Intra-company Transfer)

-Paragraphs 245G to 245GF of the Immigration Rules

-The changes to Tier 2 have been introduced further to the closure of Tier 1 (Post-Study Work).

-WHO IS IT FOR?

-This category is for employees of multinational companies who are being transferred by their overseas employer to a UK branch of the organisation, either on a long-term basis or for frequent short visits. There are 4 sub-categories:

-Long-term staff- for established, skilled employees to be transferred to the UK branch of their organisation for more than 12 months to fill a post that cannot be filled by a new recruit from the resident workforce

-Short-term staff- for established, skilled employees to be transferred to the UK branch of their organisation for 12 months or less to fill a post that cannot be filled by a new recruit from the resident workforce

-Graduate trainee- this route allows the transfer of recent graduate employees to a UK branch of the same organisation, as part of a structured graduate training programme which clearly defines progression towards a managerial or specialist role

-Skills transfer- this route allows the transfer of new graduate employees to a UK branch of the same organisation to learn the skills and knowledge required to perform their job overseas, or to impart their specialist skills or knowledge to the UK workforce.

-CAN YOU SWTICH?

-Tier 2 (Intra-Company Transfer) Migrants are now enabled to switch to other Tier 2 categories, providing their Tier 2 (Intra-Company Transfer) leave was granted before 6th April 2010 and they are applying to change employer.

-WHO QUALIFIES

-For Applicants to qualify under this category they:

1)Must be a migrant from outside of the UK;

2)Have a job offer and a Certificate of Sponsorship from an organisation that is a licensed sponsor in the UK (this job offer must not mean that you would be making a settled worker redundant or they would be turned down from a job);

3)The sponsor must have a valid Certificate of Sponsorship;

4)Have an appropriate level of salary that would maintain yourself and any dependents who would accompany you;

5)The occupation must meet National Qualifications Framework Level 4 or above.

-HOW LONG:

-In the Skills Transfer sub-category you will be granted leave for no longer than 6 months; at which point you must leave the UK and you will not be able to re-apply for further leave under an Intra-Company Transfer category (other than in the Long Term Staff sub-category) until 12 months after your last leave as an Intra-Company Transfer expired.

-In the Short Term Staff or Graduate Trainee sub-categories you will be granted leave for no longer than 12 months; at which point you must leave the UK and you will not be able to re-apply for further leave under an Intra-Company Transfer category (other than in the Long Term Staff subcategory) until 12 months after your last leave as an Intra-Company Transfer expired.

- a Long Term Staff sub-category you will be granted leave up to 3 years with the possibility of extending for a further 2 years. You will not be able to extend beyond 5 years and you will not be able to re-apply to return to the UK under an Intra-Company Transfer category until 12 months after your last leave as an Intra-Company Transfer expired.

-You will not be granted entry clearance to enter as a Tier 2 migrant in any category until at least 12 months after your other leave expired.

Tier 2 (General)

-Paragraphs 245H to 245HF of the ImmigrationRules and who obtains points under paragraphs 76 to 84A of Appendix A.

-WHO QUALIFIES?

-This category is for skilled migrants with a job offer in the UK.

-For Applicants to qualify under this category they:

1)Assigned to a Certificate of Sponsorship for one of the following reasons that there is a shortage of that occupation, you will be earning at least £150,00 p/a, completion of a Resident Labour Market Test by the sponsor, or an extension by the same sponsor;

2)The sponsor must have a valid Certificate of Sponsorship;

3)Have an appropriate level of salary that would maintain yourself and any dependents who would accompany you;

4)There are sufficient funds in your bank account (please see changes to limits from the 14/06/2012 below)

5)The occupation must meet National Qualifications Framework Level 4 or above.

-CAN YOU SWITCH?

-The provisions are now available to Tier 4 (General) Migrants (and its predecessors) with existing leave.

-Applicants must have lawfully completed and passed a UK degree, Postgraduate Certificate in Education or Professional Graduate Diploma of Education, or have completed a minimum of 12 months study in the UK towards a UK PhD, during their current leave (including previous leave, providing their leave has been continuous). The provisions are restricted to the named qualifications only and do not include, for example, vocational qualifications at degree level which are not degrees.

-Applicants will be able to apply from within the UK to switch into Tier 2 (General) following graduation without their sponsoring employer needing to satisfy the Resident Labour Market Test. All other Tier 2 (General) criteria will apply.

-A change is being made so that no other migrants in student routes (including those who have studied the qualifications above but have not graduated) will be able to switch into Tier 2 from within the UK. This is due to the Government’s view that student routes should not be seen as routes to working or settling in the UK. If such students wish to apply under Tier 2 they will need to make an entry clearance application and will be required to meet the full criteria. If they are applying under Tier 2 (General) they will be subject to the Resident Labour Market Test.

-IMPORTANT CHANGES:

-In Tier 2 (General) there will now also be a requirement to specify details of the Resident Labour Market Test which must be specified on the Certificate of Sponsorship. There are two exceptions to this and that is if the job offer salary is at least £150,000 and where the person is continuing their dentist of doctor training under their existing NHS number.

-From the 14th June 2012 the personal savings you must have will increase from £800 to £900 for applicants. For their dependents it will be from £533 to £600.

-HOW LONG:

-The maximum period of leave for a Tier 2 (General) Migrant is 6 years in total.

-You will not be granted entry clearance to enter as a Tier 2 migrant in any category until at least 12 months after your other leave expired.

-The grants of leave for extensions for whatever reason have now been simplified and will only be granted up to 3 years plus 14 days. It is felt that this is a sufficient amount of time for individuals who applied during the transitional phase.

-If a Tier 2 (General) migrant’s application for further leave is decided early then they may continue working their existing job until the start date of the new job, as indicated by their sponsoring employer.

-LIMITS:

-Please note the UKBA will be clarifying a list of graduate occupations in which Tier 2 (General) migrants can be sponsored to work in.

-Limited number of Tier 2 (General) from the 6th April 2012 to 5th April 2013 is restricted to 20,700. The same limit will apply to 6th April 2013 to 5th April 2014.

-Please note there is no limit on those who will be earning at least £150,000 per annum.

Tier 2 (Minister of Religion)

-Paragraphs 245H to 245HF of the ImmigrationRules and who obtains points under paragraphs 85 to 92 of Appendix A.

-The same changes apply to Tier 2 (Minister of Religion) as they do to Tier 2 (General) with regards to a maximum length of leave. Please see ‘how long’ above.

-WHO QUALIFIES?

-This is for ministers of religions who have religious duties and responsibilities to a congregation.

-For Applicants to qualify under this category they must be:

1)Assigned to a Certificate of Sponsorship;

2)Be paid a salary in the UK or abroad;

3)If the application is made after the 6th April 2012 then the role has justified by the sponsor and it is a vacant position that could not be fulfilled by a settled worker or the sponsor has completed the Resident Labour Market Test. There must also be confirmation as to funds and accommodation for the applicant and any dependents;

4)If the application is made prior to the 6th April 2012 then the applicant for the purposes of any extensions must send a letter from the sponsor detailing the duties, remuneration and how it would pass the Resident Labour Market Test;

5)You must also meet the English Language requirement (if applicable).

Tier 2 (Sportsperson)

-Paragraphs 245H to 245HF of the ImmigrationRules and who obtains points under paragraphs 93 to 100 of Appendix A.

-The same changes apply to Tier 2 (Minister of Religion) as they do to Tier 2 (General) with regards to a maximum length of leave. Please see ‘how long’ above.

-WHO QUALIFIES?

-In order for a Certificate of Sponsorship to be issued, your sponsor will need to have obtained an endorsement for you from the appropriate governing body (the list of appropriate governing bodies can be found at for your sport. The endorsement will confirm that:

1)you are internationally established as a player or coach at the highest level, and

2)you will make a significant contribution to the development of your sport at the highest level in the UK; and

3)you intend to be based in the UK for the duration of your permission to stay; and

4)your post could not be filled by a suitable settled worker.

5)If you are a footballer in the UK and are sponsored by a club if you move to another club on loan you do not have to make another application;

6)If you are permanently transferred to another club as a footballer then you have to make a new application with a new Certificate of Sponsorship;

7)Maintenance and English language (if applicable) requirements must also be met.

Any Future Changes

-The following changes will take place in April 2016;

-A change is being made to the Tier 2 (General) and Tier 2 (Sportspersons) categories so that migrants who apply for Indefinite Leave to Remain in these categories will need to demonstrate that they are being paid either a gross salary of £35,000 per annum or the appropriate rate for their job as set out in Codes of Practice which are published on the UK Border Agency website, whichever is higher. This change applies a new minimum pay threshold to these categories.

Top View