New opportunities and new restrictions abound in equal measure in the UKBA's new statement of changes in the Immigration Rules
16 March 2012
The government’s overhaul of all aspects of the United Kingdom’s immigration regime with the target of reducing "net migration” continues with a new Statement of Changes in the Immigration Rules laid before Parliament and simultaneously published on the United Kingdom Border Agency’s website yesterday (15 March 2012).
The statement- HC 1888 - dramatically alters the entitlements of those coming to and already in the UK under all tiers of the Points-Based System. Not only are the changes extensive but, due to the plethora of such changes in recent years, their application to those who are already in the UK varies depending upon the date when the person concerned obtained his or her particular form of leave to enter or remain.
Consequently, it seems likely that, far from simplifying the Points-Based System, these changes may well result in its becoming even more complicated.
There are innovative changes whereby entrepreneurial students are to be entitled to apply to stay in the UK with the prospect of further leave to remain and ultimately settlement as a Tier 1 (Entrepreneur) migrant, and a new visitor route which allows certain categories of short-term visitor to be paid for their activities undertaken when in the UK for the first time.
But perhaps the most striking changes are not to the various tiers of the Points-Based System but to the Overseas Domestic Workers in Private Households category. For many years Overseas Domestic Workers have been entitled to apply for "settlement” - or the right to live in the UK permanently - after completing five years’ continuous residence in this category. Under the new Rules not only will this entitlement come to an end – no Overseas Domestic Worker will be allowed to stay in the UK for more than six months.
The changes put into practice what was set out in the government’s two Statements of Intent which were published in February of 2012 - "changes affecting study, post-study work and maintenance requirements for students and workers” and "changes to Tier 1, Tier 2 and Tier 5 of the Points Based System; Overseas Domestic Workers; and Visitors.”
What follows should by no means be regarded as a comprehensive summary of the changes to the Points-Based System.
Tier 1
The deletion of the Tier 1 (Post Study Work) category comes as no surprise, since it was announced as long ago as March of 2011. The deleted Immigration Rules covering this route are replaced by those for the new Tier 1 (Graduate Entrepreneur) migrant category. As we reported in our coverage of the first of the two Statements of Intent, this route will allow students who have been identified by higher education institutions as having developed world-class innovative ideas or entrepreneurial skills to stay in the UK after they finish their courses of study in order to develop their businesses.
People granted leave to remain (there is no provision for entry clearance as a Tier 1 (Graduate Entrepreneur) migrant) will be allowed to switch into the Tier 1 (Entrepreneur) category. If they do so, they will only have to show that they have £50,000 rather than the £200,000 required for entry clearance or leave to remain as a Tier 1 (Entrepreneur) migrant.
Only one thousand people will be allowed to apply as Tier 1 (Graduate Entrepreneur) migrants for each of the first two years.
People who currently have leave as Post Study Work migrants will also be able to benefit from this low threshold, provided they are registered either as self-employed or as a director.
Tier 2
With the ending of the Tier 1 (Post-Study Work) category, some of the current restrictions faced by people who already have leave to remain either in this capacity or Tier 4 (General) students (or in Tier 4’s "predecessor” routes (i.e. Student, Student Nurse, a Student Re-Sitting an Examination, Person Writing Up a Thesis, Overseas Qualified Nurse or Midwife, Postgraduate Doctor or Dentist, Student Union Sabbatical Officer) who wish to apply for further leave to remain as Tier 2 migrants are to be lifted.
Currently their prospective employers have to satisfy a resident labour market test (to show that the job they are being "sponsored” to do can’t be done by someone from the UK or the countries comprising the European Economic Area), but from 6 April 2012 this will no longer be a condition.
Neither will it be necessary for Tier 1 (Post-Study Work) migrants to show that they have been working for their current employer for at least six months to qualify for leave to remain under Tier 2.
Switching to Tier 2 will only be an option for those students (Tier 4 General migrants and those in former categories) if they have obtained a degree, Postgraduate Certificate in Education or Professional Graduate Diploma of Education, or have studies for a minium of year in the UK towards a PhD.
The big changes to Tier 2 are, as was loudly heralded in the second of the two Statements of Intent, firstly, the implementation of a maximum period of leave to remain as a Tier 2 migrant of six years after which, unless the Tier 2 migrant has been granted indefinite leave to remain in the UK, he or she will have to leave, and, secondly, the introduction of a minimum annual salary of £35,000 as a precondition for indefinite leave.
Tiers 4 and Tier 5
As we reported in early February 2012, the changes include a reduction of the entitlement of Tier 4 (General) students to study on courses which include "work placements” so that such placements can only comprise one third of their courses of study. There is also a requirement that Tier 4 (General) students can study at degree level for a maximum period of five years.
Tier 4 (General) students will also be able to switch from their existing leave to remain into the Tier 5 (Temporary Worker) route, provided that they are applying under a Government Authorised Exchange Scheme to obtain a professional qualification in the same field as that in which they were studying. Again this is seen as necessary and desirable in the light of the termination of Tier 1 (Post-Study Work).
Maintenance
Across the entirety of the Points-Based System, the amounts of money which applicants must show that they have at their disposal in order to satisfy the "maintenance" requirements of the Immigration Rules (in other words, the stipulated amounts showing that they can support themselves and their families) have been increased. It is said that the increases are in line with the costs of living and studying in the UK.
Tier 1 (Investor) migrants and Tier 1 (Exceptional Talent) migrants will remain exempt from the requirement to meet a maintenance test.
Despite the restrictions outlined above, there are several new opportunities made available by these changes to people who wish to come to the UK to visit, to live and work here or for those who are already here. A notable example of this is the new "Permitted Paid Engagements" visitor route, whereby certain categories of people coming to the UK as a visiting academic or lecturer, to provide advocacy in a particular area of law, or to undertake a pre-arranged activity in the areas of sport, art or entertainment, can receive payments for their work. Leave to enter the UK in this new category is restricted to one month.
Due to the inherent complexity of the system and the seriousness of any adverse decision by the UKBA, it must be stressed however that all applications should be made with the advantage of highly competent professional representation.
Gherson has a wealth of experience in the ever-changing Points-Based System, enabling its immigration lawyers to provide comprehensive and informed advice to anyone who is or who may be affected by these changes.
