Statement of Changes to the Immigration Rules HC 863, which was laid before Parliament on 16 March 2011 extensively recast Tier 1. By these changes:
- Tier 1 (General) was effectively deleted. It now remains only as leave to remain (for people who are already in the UK). Moreover from 6 April 2011 the only people eligible to apply for leave to remain as a Tier 1 (General) migrant are those who already have leave to remain in this capacity and who wish to extend it and those who currently have leave to remain in any of the following (now deleted) immigration categories: Highly Skilled Migrant, Writers, Composers and Artists and Self-Employed Lawyers.
- a new subcategory of Tier 1 - Tier 1 (Exceptional Talent) was introduced.
- the qualifying period for settlement in the UK for Tier 1 (Investor) migrants was reduced from five years to either three or two years (depending upon the extent of the investment) where the Tier 1 Investor Migrant has invested substantially in the UK after entry in this capacity.
- a similar reduction (from five years to three years) was introduced in relation to the qualifying period for settlement for Tier 1 (Entrepreneur) Migrants. Furthermore, from 6 April 2011 Tier 1 (Entrepreneur) migrants may enter the UK as Prospective Entrepreneurs. This is a new form of Special Visitor visa, which enables the holder to apply for leave to remain as a Tier 1 (Entrepreneur) during the currency of the leave to enter as a Prospective Entrepreneur.
- both for Tier 1 (Investor) migrants and Tier 1 (Entrepreneur) migrants a relaxation of the requirement for continuous lawful residence in the UK to qualify for settlement was introduced. Absences of up to 180 days in any 12 month period are now permitted.
Tier 1 does not require applicants for leave to enter or remain to have a job offer in the UK. It comprises four categories:
General,
Entrepreneur,
Investor and
Post-Study Work.
Tier 1 (General)
This immigration route replaced the Highly Skilled Migrant Programme in 2008 for highly skilled migrants. Until 23 December 2010 it was open to people to apply for entry clearance to come to the UK as a Tier 1 (General) migrant. Thereafter it was closed to overseas applicants, and as indicated above applications from those within the UK are restricted to a dwindling class of people.
To qualify for leave to remain applicants require 80 points for a combination of attributes - made up of their qualifications, age and previous earnings. Details of how these points are scored are set out in Appendix A of the Immigration Rules. A reduction to 75 points applies for people who had previously been granted leave to remain under the HSMP or under two other now deleted immigration categories.
The age criterion operates to award more points to younger applicants and less to older applicants.
Applicants also need to have 10 points for English language. These points are awarded by reference to the criteria listed in Appendix B of the Immigration Rules which are (alternatively):
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production of an English language test certificate from a provider approved by the Secretary of State,
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production of an academic certificate deemed by the National Recognition Information Centre for the United Kingdom (UK NARIC) to meet or exceed the recognised standard of a UK Bachelors' or Masters' Degree or a PhD, or
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being a national of one of a list of countries whose first language is English, or by having obtained an academic qualification to the necessary level from one of those countries.
Lastly applicants require 10 points under Appendix C which is concerned with the applicants' ability to maintain themselves.
If successful, applicants for leave to remain under the Tier 1 (General) subcategory will be granted leave to remain in the UK for two years if their previous grant of leave to remain was under Immigration Rules in place before 6 April 2010 or for three years if their previous grant of leave was after this date. They will have free access to the UK labour market, with one exception - which is that they are not allowed to take employment as a doctor in training. At the end of this period they can apply for further leave to remain in the same category or in any other Tier or subcategory of the points based system. If successful they will be granted leave to remain for up to a total of five years.
Following completion of a total of five years' leave to remain applicants can apply for settlement in the UK - in the form of indefinite leave to remain as a Tier 1 (General) Migrant. They must meet the additional requirement at this stage of satisfying the Secretary of State that they have sufficient knowledge of the English language and of life in the UK. If successful they can then apply after 12 months for UK nationality.
Tier 1 (Exceptional Talent)
This route, which has existed since April of 2011, is for “those who are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts and who wish to work in the UK” to be granted entry clearance or leave to remain in the UK. To succeed applicants must be economically active in their chosen field, and this must be certified by a “Designated Competent Body”. However no details of such bodies have been provided by the UKBA.
There is a limit on applications of 1000 for the year to April of 2012. Most of these limited visas will be issued to those active in science.
Tier 1 (Entrepreneur)
This subcategory of Tier 1 is for business investors seeking to establish, take over or be actively involved in the running of a business. As they did under the old business Immigration Rules, applicants must have at least £200,000 to invest in a new or existing UK company, although as noted above the new Prospective Entrepreneur visitor Immigration Rule enables people to come to the UK if they have substantially less than this but have arranged financial backing for a business project with UK-based interests. Prospective Entrepreneurs are entitled to apply to “switch” into the Tier 1 (Entrepreneur) category after they reach the UK.
The £200,000 provides the necessary 75 points required by Appendix A of the Immigration Rules for entry clearance as a Tier 1 (Entrepreneur), and the migrant will initially be granted leave to enter for three years.
The requirements under Appendices B and C (English language and Maintenance) for Tier 1 (Entrepreneur) migrants are identical to those for Tier 1 (General) Migrants.
By the time their leave expires applicants in this subcategory will have to show that their activities have created at least two new full time jobs for UK employees. Meeting these requirements will gain applicants the necessary points needed for further leave to remain, which will be for two years.
Those with leave to enter or remain as Tier 1 (Entrepreneur) migrants are not allowed to work outside the business or businesses they have set up, taken over or joined and are not allowed to claim public funds.
The number of years for which a Tier 1 (Entrepreneur) must remain in the UK - under the newly relaxed conditions brought in since April of 2011 - in order to become eligible for indefinite leave to remain can be as low as three, if the business has created at least ten new jobs in the UK, or can show an income from its activity of at least £5 million.
Otherwise, Tier 1 (Entrepreneur) migrants can apply for indefinite leave to remain after five years. They must meet the additional requirement at this stage of satisfying the Secretary of State that they have sufficient knowledge of the English language and of life in the UK. If successful they can apply for UK nationality after they have had indefinite leave to remain for 12 months.
Tier 1 (Investor)
Tier 1 (Investor) migrants are high net worth individuals, who are capable of making a substantial financial investment in the UK. Again the requirements are very similar to those which were stipulated under the previous Investor route.
To qualify for entry clearance applicants must have net assets of at least £1 million. This will gain them the necessary points under Appendix A of the Immigration Rules. They are not required to meet any English language requirement (Appendix B) nor do they need to satisfy any requirement as to maintenance (Appendix C).
After their entry to the UK Tier 1 (Investor) Migrants need to invest at least £750,000 in the UK. This money needs to be invested in UK government bonds, share or loan capital in active and trading UK-registered companies - but not in those principally engaged in property investment. Appendix A of the Immigration Rules provides details of how an applicant's assets can be taken into account to prove entitlement for entry clearance and how the necessary investment is to be made and maintained.
It is a crucial feature of the Tier 1 (Investor) subcategory that the investment of at least £750,000 must be made within three months of a successful applicant's arrival in the UK. Failure to do so will not only jeopardise the applicant's application for further leave to remain - it also entitles the UKBA to curtail leave to enter granted in this subcategory.
In contrast to their predecessors - Investors - Tier 1 (Investor) migrants are entitled to work if they wish to do so but not as a doctor in training.
Leave to enter the UK is granted for an initial period of three years, and further leave to remain - upon satisfaction of the requirements which are outlined above - for a period of two years.
As with other Tier 1 migrants, those with leave to remain in this subcategory can apply for indefinite leave to remain. They can do so as a Tier 1 (Investor) migrant after completing the number of years of continuous residence in the UK which is commensurate with the level of their investment. For example, those who invest as much as £10 million can apply for indefinite leave to remain after just two years.
Although they are not required to do so at any earlier stage of their route to settlement - Tier 1 (Investor) migrants must then meet the additional requirement of satisfying the Secretary of State that they have sufficient knowledge of the English language and of life in the UK.
Tier 1 (Post-Study Work)
International graduates who have studied in the UK (under Tier 4) can apply for entry clearance or for leave to remain as Tier 1 (Post-Study Work) migrants. (This subcategory of Tier 1 replaced the International Graduates Scheme and the Fresh Talent: Working in Scotland Scheme.)
The Post-Study Work subcategory is scheduled to be closed in April of 2012. Following this it is understood that it will only be possible for Tier 4 (General) Students to apply to stay in the UK as Tier 2 (General) migrants.
To succeed applicants need to obtain 75 points for their attributes (Appendix A of the Immigration Rules) - which are scored against the qualification they have gained and the institution at which they studied for it. The necessary qualifications are a degree or a postgraduate diploma or certificate from a UK institution or a Higher National Diploma from a Scottish institution.
Additionally applicants need to have knowledge of English language (Appendix B) at the same level as that required by Tier 1 (Entrepreneur) migrants - although this requirement is met automatically by their UK qualification.
Tier 1 (Post-Study Work) migrants must also meet the maintenance requirements of Appendix C, which it has in common with those in the General and Entrepreneur subcategories.
These are £2,800 when applying for entry clearance and £800 when applying for leave to remain. Applicants must show that they have possessed this amount of money for a period of three months ending just before the date of their applications.
This subcategory is distinct from the other subcategories of Tier 1 in that it does not provide a route to settlement. Leave to enter or remain is granted for a maximum period of two years, but the Immigration Rules permit Tier 1 (Post-Study Work) migrants to apply for further leave to remain either in any of the other Tier 1 subcategories or as a Tier 2 migrant.
Family members of Tier 1 migrants
The family members of migrants in all of the subcategories of Tier 1 can apply to join their spouse, civil partner, unmarried or same sex partner or parent (if the applicant is a child under the age of 18) in the UK. They can also apply for settlement in the UK at the same time as the Tier 1 migrant to whom they are related - but if they are related otherwise than as his or her children they must have lived with the Tier 1 migrant in the UK for at least two years. If they do not meet this requirement they can apply for a further period of limited leave to remain of up to two years, after which they can apply for settlement.