New "Permitted Paid Activities" immigration route and restricted entitlements to settlement: the government's new Statement of Intent
2 March 2012
In June of 2011 Immigration Minister Damian Green announced radical plans for the phasing out of the route to settlement (the right to live in the United Kingdom permanently) in the United Kingdom for those who come here to work.
These measures were brought several steps closer by the publication on Wednesday 29 February 2012 of the Home Office's Statement of Intent: Changes to Tier 1, Tier 2 and Tier 5 of the Points Based System; Overseas Domestic Workers; and Visitors. The statement of intent was published contemporaneously along with the results of the consultation on the government's proposals, which was also launched in June of 2011.
The principle targets of these changes are Tier 2 (General) migrants, people who come to the UK to work for a UK employer, and Overseas Domestic Workers.
The current position of Tier 2 (General) migrants is as follows. Visas are issued to applicants only if the employer has demonstrated, via a "resident labour market test", that no worker based within the European Economic Area can fill the job. Successful applicants are given leave to enter the UK as Tier 2 (General) migrants for the duration of the job concerned, for up to a maximum period of three years and one month.
At the end of that initial period of leave to enter Tier 2 migrants can apply for further leave to remain in the UK. Unless they are changing their employer, there is no need at this stage for the employer to satisfy the resident labour market test. Subject to their meeting the requirements of the Immigration Rules, Tier 2 migrants will then be granted a further period of leave to remain to bring the total amount of time spent in the UK to five years.
At the end of those five years Tier 2 migrants can currently apply for indefinite leave to remain in the UK. The Rules require that they must still be needed for the job they are doing and that they are paid at or above the rate stipulated in Standard Occupational Classification (SOC) codes of practice issued by the UKBA.
It is this last option which will change. From April 2016 it will only be possible for Tier 2 (General) migrants who are earning at least £35,000 to apply for settlement in the UK. Anyone else will not be able to apply for settlement and will have to leave the UK.
This measure has been set to start from April of 2016 so that it only affects people who were granted either entry clearance or leave to remain as Tier 2 (General) migrants from 6 April 2011 onwards, and who would therefore become eligible to apply for settlement five years later, in April 2016. Anyone who entered the UK as a Tier 2 (General) migrant under the Rules as they were on or before 5 April 2011 or who switched into that category from another form of leave to remain before that date won't have to meet the new requirements.
The requirement for earnings of at least £35,000 will also apply to those applying for indefinite leave to remain from the Tier 2 (Sportsperson) subcategory, but not to the other categories of Tier 2, i.e. Intra-Company Transferees and Ministers of Religion are not affected by the changes.
As the government points out in the statement of intent, Intra-Company Transferees are not eligible to apply for settlement in any event (unless they have had a period of leave in that capacity dating from before April of 2010). Unlike all the other subcategories of Tier 2, Ministers of Religion are not subject to any minimum salary, and so it has not been regarded as appropriate to impose this requirement upon them.
Also exempt from the £35,000 salary are those Tier 2 migrants who are sponsored to work in areas included in the UKBA's list of shortage occupations, or who, at some time during the qualifying five-year period of continuous residence in the UK, did work in such areas, and scientists and researchers, who work in specified 'PhD-level' jobs.
Migrants in all categories of Tier 2 will be subject to a maximum period of leave of six years. After this time, unless they have successfully applied for indefinite leave to remain, they will have to leave the UK.
Settlement criteria for Tier 1 migrants are not to be changed. The government's announcement refers proudly to its measures implemented last year which provide an accelerated route to settlement for Tier 1 (Investor) and (Entrepreneur) migrants. The Tier 1 (Post Study Work) subcategory has never led to settlement and will close in April of 2012 in any event.
The new Tier 1 (Exceptional Talent) migrant route was, it seems, felt to require the incentive of the possibility of settlement and, due to its exceptional nature, prohibiting this option would not produce a significant gain in terms of the government's much heralded policy of reducing "net migration".
Instead, the government has targeted Overseas Domestic Workers. Here the changes are drastic, particularly when it is remembered that for many years "ODWs" have been entitled to apply for settlement after five years' continuous lawful residence in this capacity and have never been subject to a maximum length of stay in the UK.
From 6 April 2012 the option of settling in the UK is barred to Overseas Domestic Workers. They will only be permitted to accompany visitors or diplomats. Those accompanying a visitor will have a maximum stay of six months, will be permitted to work during that time, will not be allowed to change employer and there will be additional pre-entry checks in future. Those accompanying diplomats will have a maximum stay of five years (or the length of the diplomatic posting, whichever is shorter), will not be allowed to change employer and will not qualify for settlement but they will be able to sponsor dependants.
There are also complex changes to the myriad routes which are included under Tier 5 of the Points-Based System. Among other changes, the government will restrict internships and work experience-type schemes within the government-authorised exchange scheme subcategory to one-off stays of a maximum of 12 months on the basis that this is sufficient time to obtain the necessary experience.
The only new category to be announced is due to the government's acknowledgement of the difficulty faced by short-term visitors to the UK who wish to engage in paid activities owing to the respective restrictions currently in force for "Business visitors" on the one hand and Tier 2 migrants on the other. Accordingly, people coming to the UK for the listed set of activities will be permitted to do so under the new "permitted paid activities" route.
The activities covered by this new route include visiting lecturers and examiners, artists exhibiting works, authors undertaking book-signings, entertainers giving one-off or a very short series of performances, sportspeople undertaking broadcasting work, and lawyers providing advocacy in a particular area of law as a qualified lawyer in a court or tribunal hearing, arbitration or other form of alternative dispute resolution in the UK. All applicants will have to show that they intend to leave the UK within one month of their arrival.
As well as the restriction of rights currently enjoyed by Tier 2 migrants and Overseas Domestic Workers, all of this represents still further complication of an already massively complicated immigration regime. Anyone who is in the UK with leave to remain in any of the affected categories, or who is planning on coming to the UK with a view ultimately to settling here, or who is intrigued by the new permitted paid activities route is strongly advised to seek professional legal advice.