Highly skilled migrants - Tier 1: Government announces details
The Border and Immigration Agency (the “BIA”) has published its “statement of intent” regarding Tier 1 of its Points Based System. Tier 1 is due to be implemented in the first quarter of 2008.
Tier 1 will replace eight immigration categories under which people are currently able to enter the United Kingdom to work. Some of these are specifically provided for by immigration rules, others by concessions operated by UK visas. The categories are the Highly Skilled Migrant Programme (HSMP); Investors; Self Employed Lawyers; Businesspersons, Writers, Composers and Artists; the International Graduates Scheme; Innovators; and the Fresh talent: Working in Scotland Scheme.
Tier 1 is concerned with the admission of highly skilled migrants. The government has indicated that the Tier will contain four sub categories, these being “General” – for people who wish to find highly skilled employment in the UK, ‘Entrepreneurs’, ‘Investors’ and also “Post Study Work”, which is intended to provide a means for international graduates who have studied in the UK to remain here working. People who apply successfully under this category will only be able to remain in it for a maximum of two years so that they are encouraged to switch within that period into highly skilled employment.
Applications under Tier 1 are sponsor-free – Tier 2 will cover “skilled” (as opposed to highly skilled) migrants and applicants under this Tier will be people who have a job offer in the UK. They will need to have sponsors.
The BIA’s document sets out the process for applying under Tier 1, the maintenance requirements which will be imposed upon applicants and the necessary criteria which need to be fulfilled for each subcategory. The BIA has however been careful to make clear that the statement of intent represents the Agency’s current thinking and that that could change before the implementation of Tier 1.
Needless to say anyone seeking to make an application under Tier 1 or any other provision of the immigration rules is strongly advised to seek professional legal advice prior to making any approach to the appropriate authority. Gherson is highly experienced in assisting in applications under the HSMP which itself is the pilot for the points based system, and for Tier 1 in particular.
On the basis of the document however the scheme breaks down as follows.
Applicants must achieve a score of 75 points. These are scored against different criteria. The criteria to be applied depend upon which of the sub categories (General, Entrepreneurs, Investors and Post-Study Work) the application falls.
They must also demonstrate that they can maintain and accommodate themselves without having access to state benefits. The maintenance requirements set out in the document do not resemble anything in the existing immigration rules, in which the requirement is that the applicant and his or her dependants must be maintained and accommodated adequately without recourse to public funds – which has been interpreted by the Asylum and Immigration Tribunal to mean at or above the level at which the Secretary of State considers it reasonable to expect people receiving income support to live.
By contrast applicants under Tier 1 must show that they have:
• £400 per month start up costs (this is restricted from those applicants coming from outside the UK – so people switching who have an immigration status which allows them to switch to Tier 1 status will not have to fulfill this condition)
• £800 per month for the applicant, and 2/3 of the funds required by the applicant for his or her first dependant and then 1/3 of the funds for each subsequent dependant.
People coming from outside the UK must demonstrate that they have this level of funds to maintain themselves for the first 3 months after their proposed entry to the UK. People already here need only show that they have sufficient funds for one month.
On these figures a person seeking leave to enter under Tier 1 with a family comprising a spouse and two children would need to have £8,400.
All applicants must also satisfy a test for competence in the English language. The BIA has indicated that in its view persons applying under Tier 1 should demonstrate a high level of competence in English.
Successful applicants under each sub category apart from Post Study Work will be granted three years’ leave to remain, which can be extended for periods of two years. Those successfully applying under the Post Study Work category will be granted a one off period of two years’ leave, which cannot be renewed.
The BIA’s document contains annexes setting out the specific criteria particular to each subcategory against which the necessary 75 points must be scored, as well as the circumstances under which extensions of stay will be granted. What follows does not reflect the detail contained in the annexes but instead is intended to demonstrate the distinctions between the subcategories.
General
For applicants under this subcategory points will be scored for qualifications, previous earnings, age and UK work experience. This methodology is broadly similar to that operated by the BIA when considering applications for persons wishing to enter the UK under the current HSMP scheme. The provision which currently operates, and whereby people who have obtained an MBA from one of 50 top business schools worldwide will however be dropped. It is the BIA’s view that Masters graduates at this level would be able to gain sufficient points under the other criteria anyway.
To qualify for an extension of stay it will be necessary for applicants to show that they meet the same category as that which they fulfilled when entering the UK, but they will not have to pass the English language or maintenance tests again.
Entrepreneurs
Applicants under this subcategory will make up their points as follows. Having access to £200,000 will provide 25 points, as will its being held in a regulated financial institution and its being disposable in the UK. The necessary 75 points will be obtained if each of these requirements is satisfied.
To qualify for an extension of stay applicants must have invested at least £200,000 in their business, have registered the business with HM Revenue and Customs within 3 months of their entry to the UK, have actively engaged in the business and have created posts for two full time employees. They will not need to pass the English language or maintenance tests again.
Investors
Applicants under this subcategory must possess £1 million held in a regulated financial institution and disposable in the UK. They are exempt from the maintenance and English language tests. To qualify for an extension of stay they must invest £750,000 (in permitted investments) and the investment must be maintained throughout the three year period of the investor’s initial admission to the UK.
Post Study Workers
These applicants will score 20 points each for having
i) a UK recognised degree at bachelor’s level or at post graduate level or a HND from a Scottish institution
ii) obtained the qualification at a UK institution which is either a UK recognised or listed body or is on the Tier 4 sponsor’s register (once this register is implemented)
iii) obtained the qualification whilst in the UK studying as a Tier 4 student or as a dependant of someone who had valid leave in an immigration capacity which permitted him or her to be accompanied by dependants. They will not have to satisfy the English language requirements but they will have to satisfy the maintenance test. No extensions of stay will be granted.
The annexes also contain in summary form transitional provisions affecting those already in the UK under the immigration categories which will be replaced by Tier 1. These are as follows:
HSMP
Transitional arrangements which came into force in December of 2006 will continue to apply after the HSMP is replaced by the General category of Tier 1. Additionally people who were granted leave under the HSMP will be able to rely upon this as counting towards the threshold for settlement under work permit employment (which will become Tier 2 of the points based system).
Self Employed Lawyers and Writers, Composers and Artists
People in these categories will be able to apply for an extension before the categories are removed. If they succeed in obtaining extensions of stay they will be given a period of leave which will take them up to the threshold for being eligible to apply for settlement in the UK. Thereafter they will have to apply for settlement under the applicable requirements at that time. Leave granted in these categories will count towards the threshold for settlement in the new Tier 1 General subcategory or Tier 2 (work permits).
Innovators
In common with Self Employed Lawyers and Writers, Composers and Artists people in the UK as innovators will be able to apply for an extension before this category is removed. Similarly if they are successful they will be given a period of leave to remain which will take them to the threshold for eligibility to apply for settlement.
Investors
For investors no transitional arrangements will be required since the extension tests are broadly the same for the current and for the proposed investors subcategory. Anyone who has been granted leave in this capacity will be entitled to count that time towards the settlement threshold for the Tier 1 Investors subcategory.
Businesspersons
Similarly transitional arrangements are not necessary for people in the UK in this capacity since the extension tests are broadly the same for the current Businesspersons and the proposed Entrepreneurs subcategory. Leave granted as a businessperson will count towards the settlement threshold for the Tier 1 Entrepreneurs category.
International Graduates Scheme (“IGS”)
Graduates with leave under this scheme or under the Science and Engineering Graduates Scheme (“SEGS”), which preceded the IGS will be able to complete their leave and may then apply for an extension under Post Study Work. The total amount of leave under IGS/SEGS and Post Study Work will not exceed 2 years.
