On 22 November 2012, UKBA announced several amendments to the Immigration Rules. UKBA’s official announcement can be found here. The changes, with effective dates ranging from 13 December 2012 to 28 February 2013, are non-substantive changes for sponsors and migrants coming to the UK under the following routes:
- Tier 1 – entrepreneurs and investors.
- Tier 2 – skilled workers, including changes for senior intra-company transfers.
- Tier 4 – students, including extending the interim limit.
- Tier 5 – temporary workers including the requirements for the government authorised exchange category and private servants in a diplomatic household.
- Sponsorship – revised sponsorship guidance will be published in December.
In addition, there are changes to the rules affecting:
- Establishing a more robust and clear criminality framework to assess immigration applications against which immigration applications will be assessed.
- Recalculating the length of time, based on the length of sentence, before we will revoke a deportation order.
- Introduction of a re-entry ban, for some foreign national offenders who have been removed from the UK as part of a conditional caution and additional powers to end (curtail) a migrant’s visa or leave.
- Creation of a ‘route’ for ex-Armed Forces to remain in the UK.
- Amendments to clarify the absences from the UK that are allowed during the continuous residence period for Tier 1 (General), Tier 2 and pre-points based system work routes (for example work permits, self-employment and business person).
Family and Private Life:
- Minor changes to the child and parent routes to make them as clear and comprehensive as possible.
There will also be some changes to the Youth Mobility Scheme quotas and Tier 4 loan letters in early 2013.
For full details and effective dates, please see the Statement of Changes to the Immigration Rules and the explanatory memorandum within that document. The written ministerial statement and statement of policy can be found on the Home Office website.
Main Changes that may be relevant for our readers, by Tier:
What are the changes to Tier 1 General?
The following changes are being made to the Tier 1 (Entrepreneur) category, which caters for those with financial backing who are coming to the UK to set up, take over, or otherwise be actively involved in the running of a business in the UK:
Applicants normally require funding of £200,000, but this is reduced to £50,000 if the funding is from a specified source, which includes UK Government Departments. This provision is being expanded to include funding from Departments of Devolved Administrations.
The English language requirement is being lowered from level C1 (advanced) to level B1 (intermediate), in line with other Points-Based System categories, in response to concerns that the high requirement was a possible deterrent to potentially successful entrepreneurs. This change is also being made to the Tier 1 (Graduate Entrepreneur) category for consistency (although it has no practical consequence in this category, as applicants pass the English language requirement automatically if they meet the separate requirement to have passed a UK degree).
Due to concerns about possible abuse, and the introduction in April 2012 of a more tightly controlled and bespoke Tier 1 (Graduate Entrepreneur) route, students will no longer be able to switch directly into this category, unless they have £50,000 funding from a specified source (registered venture capitalist firms, UK Government or Devolved Administration Departments, or listed seed funding competitions).
A rule was introduced on 4 July 2011 stating that no points would be awarded for maintenance funds that are held in a financial institution with which the UK Border Agency is unable to make satisfactory verification checks. A list of financial institutions which do not satisfactorily verify financial statements is published on the UK Border Agency website. This rule is being expanded to include the business funds required for Tier 1 (Entrepreneur) applicants.
A clarification is being made to confirm that points are not awarded for funds which have been promised to other individuals, except where they are applying under the specific provision for entrepreneurial teams.
A clarification is being made to confirm how the requirement to be working in a NQF level 4 occupation is interpreted when applied to Tier 1 (Post-Study Work) migrants switching into Tier 1 (Entrepreneur).
An existing provision (currently set out in published guidance) is being added to the Immigration Rules, confirming that letters from HM Revenue and Customs letters for Tier 1 (Entrepreneur) applicants can be dated within 8 months of entry into the route, not 6 months as the Rules otherwise imply.
What are the changes for Tier 1 Investors?
The following changes are being made to the Tier 1 (Investor) category, which caters for high net worth individuals making a substantial financial investment in the UK:
Initial applicants must provide evidence of the source of the required £1 million funds to invest. On 6 April 2011 a change was introduced allowing applicants to qualify for accelerated settlement in 2 or 3 years (rather than 5 years) if they invested larger sums of money. A change is now being made to require applicants to provide evidence of the source of the additional funds, in the same way.
A change is being made to allow a Tier 1 (Investor) Migrant’s leave to be curtailed if they fail to maintain the required level of investment for the duration of their leave.
Amendments are being made to state explicitly that points will not be awarded for investments that applicants have taken loans out against, or investments that are held in offshore custody. These are not permitted, to ensure that the investments are under the applicant’s control and are genuinely benefitting the UK. The previous Rules already prevented these activities. The change is being made purely in response to queries on these subjects from some representatives.
An amendment is being made to leave conditions to prevent Tier 1 (Investor) migrants working as professional sportspeople, and so avoiding the Sports Governing Body endorsement criteria in the dedicated sporting routes in Tier 2 and Tier 5. This mirrors the leave conditions in other Tier 1 categories;
A technical clarification is being made to state more clearly how the accelerated settlement period for Tier 1 (Investor) migrants is to be calculated;
As with Tier 1 (Entrepreneur), the rule relating to financial institutions which do not satisfactorily verify financial statements is being expanded to cover the funds Tier 1 (Investor) applicants are required to invest.
What are the changes forTier 1 General Highly Skilled Workers?
The Tier 1 (General) category for highly skilled workers was closed to new applicants from 6 April 2011, but extension and settlement applications continue to be made by migrants who were already in the route. A clarification is being made to confirm that employer pension contributions do not count towards the points awarded for previous earnings in this category.
What are the changes to Tier 2 of the Points-Based System?
Tier 2 of the Points-Based System caters for skilled workers with a job offer, and consists of four categories: Tier 2 (Intra-Company Transfer), Tier 2 (General), Tier 2 (Minister of Religion) and Tier 2 (Sportsperson). The Intra-Company Transfer category consists of four sub-categories: Short Term Staff, Skills Transfer, Graduate Trainee, and Long Term Staff.
Tier 2 (Intra-Company Transfer) Migrants can stay in the UK for a maximum of 5 years in the Long Term Staff sub-category. The category does not lead to settlement and a 12 month “cooling off period” applies before migrants can return. A change is being made to extend the maximum stay from 5 years to 9 years for very senior staff earning £150,000 a year or more. This change is being made in response to feedback from business. A 9-year maximum meets business needs while maintaining the temporary nature of this category, by preventing applicants qualifying for settlement on the basis of long residency.
A minor change to the operation of the “cooling off period” is also being made to introduce some flexibility in the way that the start of the cooling off period is determined when it is clear that the applicant has left the UK before the expiry of their leave. This will mean that the cooling off period can start from the earliest date that the applicant can demonstrate that they left the UK, rather than the date of expiry of Tier 2 leave. The onus will be on the applicant to demonstrate that they have left, and have remained outside, the UK earlier than the expiry of their leave.
On 14 June 2012 the minimum skills threshold for jobs that qualify under Tier 2 (General) and Tier 2 (Intra-Company Transfer) was raised from National Qualifications Framework (NQF) level 4 to level 6. A minor correction is being made to the transitional arrangements for this change. This correction means that applicants who entered these Tier 2 categories under the Rules in place between 6 April 2012 and 13 June 2012 will be subject to the NQF level 4 requirement when they apply to extend their stay, not the NQF level 6 requirement.
On 6 April 2011 a £40,000 salary threshold was introduced for Tier 2 (Intra-Company Transfer) Migrants coming to the UK for more than one year. A minor correction is being made to the transitional arrangements for this change. This correction ensures that Tier 2 (Intra-Company Transfer) Migrants who entered before the change can make more than one extension application without being subject to the new salary threshold.
Changes are being made to the Codes of Practice, setting out the appropriate salary rates and advertising media for barristers applying under Tier 2. Previously these details were missing from the Codes of Practice as no rates or specific media for barristers had been identified. Changes are also being made to the Resident Labour Market Test (RLMT) for pupillage positions for barristers, exempting these positions from the requirement to be advertised in Jobcentre Plus (or JobCentre Online in Northern Ireland) and extending the validity of the RLMT from six months to two years.
A temporary exemption from the requirement to advertise in Jobcentre Plus (or JobCentre Online in Northern Ireland) is being made for positions in the NHS advertised on NHS Jobs between 19 November 2012 and 6 April 2013. This is due to downtime in the automatic posting of vacancies from NHS Jobs to Jobcentre Plus while DWP systems are upgraded. A workaround could only be put in place for this period at significant cost to the public purse, so it has been agreed to temporarily waive the requirement.
Two existing provisions (currently set out in published guidance) relating to the Resident Labour Market Test are being included in the Immigration Rules. The first is that Tier 2 (General) Sponsors do not need to appoint a suitable settled worker when carrying out the Resident Labour Market Test for PhD-level occupations, if a migrant applicant is better qualified for the post. The second is that Tier 2 (General) Sponsors are exempt from the normal advertising requirements when carrying out the Resident Labour Market Test if the post is for a named researcher or is covered by the creative sector codes of practice in Table 5 of Appendix J.
A further correction is being made to the Codes of Practice to remove out-of-date references to the use of head-hunters for recruitment. The published guidance for Sponsors was amended to make clear that the use of head-hunters is permitted, but this does not obviate the requirement for vacancies to be advertised in order to satisfy the Resident Labour Market Test. This change was overlooked when the Codes of Practice were added to these Rules by Cm 8423 (laid before Parliament on 19 July 2012) and is now being corrected.
A correction is being made to the evidential requirements for graduates applying to switch into Tier 2 under post-study provisions. This is to reflect that degree certificates do not show all the same details as academic references and transcripts, but are equally acceptable as evidence.
As with Tier 1 (General), a clarification is being made to confirm that employer pension contributions do not count towards appropriate salary points for Tier 2 (General) and Tier 2 (Intra-Company Transfer). A drafting inconsistency is also being removed between the appropriate salary rules for these two Tier 2 categories.
An existing provision (currently set out in published guidance) is being included in the Immigration Rules, which states that Tier 2 dependants do not need to provide evidence of maintenance if the main applicant does not (for example, because they have made an extension application and the main applicant is currently working lawfully in the UK).
What are the changes to the Tier 4 Student route?
Tier 4 (General) Students have conditions restricting their employment in the UK. The following changes are being made to relax these conditions:
The conditions prevent Tier 4 (General) Students working as a doctor or dentist in training unless they have been granted leave to do a recognised NHS Foundation Programme. These changes allow students to start working as a doctor or dentist as soon as they have submitted an application in which they are sponsored to do a recognised NHS Foundation Programme, while they are waiting for that application to be decided. This will avoid potential delays for medical degree students in beginning the next stage of their training.
The conditions also prevent Tier 4 (General) Students from working in self-employment. These changes allow students who have been endorsed by their institution for the Tier 1 (Graduate Entrepreneur) category to work in self-employment as they have submitted their Tier 1 (Graduate Entrepreneur) application and while they are waiting for it to be decided.
Other changes to Tier 4 include:
A clarification regarding maintenance requirements that was previously listed in guidance and is now in the rules.
Clarification on the post-graduate legal courses that are exempt from the time limit on study.
An update to a course title as defined by the awarding body.
An amendment to the provision for employment as a National Union of Students (NUS) elected official.
Extension to the interim limit. A small number of educational institutions that have not achieved both a satisfactory educational oversight assessment from a specified body and Highly Trusted Sponsor status remain subject to an interim limit on the number of international students that can be recruited. The interim limit provision expires on 31 December 2012 and these changes extend the limit until 30 June 2013.
Amendments to the provision enabling an applicant to use a loan letter to evidence the required level of maintenance, limiting this to loan schemes provided by a government, or a government sponsored student loan company or where the loan is part of an academic or educational loans scheme. Where an applicant uses another type of loan then the funds will need to have been held for at least 28 days prior to application. The loan letter amendment will come into force on 28 February 2013.
What are the changes to the Tier 5 Youth Mobility Scheme?
The Youth Mobility Scheme is for sponsored young people from participating countries and territories who wish to live and work temporarily in the UK. The annual allocations of places are being renewed for 2013. There is an increase in the allocations for Australia (from 32,500 to 35,000 places) and Canada (from 5,000 to 5,500 places) since they attracted a higher number of British youths under their reciprocal scheme in 2011, than in the previous year. South Korea has also received an increased allocation up to the minimum annual allocation of places (1,000) as their previous allocation was based on them joining part way through 2012. The other allocations are unchanged from 2012. The revised annual allocations will come into force w.e.f. 1 January 2012. Appendix 3 which lists the participating countries under the previous Working Holiday-maker scheme is being removed as this scheme was replaced by the Youth Mobility Scheme in 2008.
What are the amendments for Points-Based System Dependants?
Statement of Changes HC565 included amendments relating to Points-Based System dependants. Those amendments removed the ability of a child to come to the UK with or to join parents other than where one is a Points-Based System migrant and the other has leave as that parent’s partner. The amendments to paragraphs 319H and 319J restore the possibility of a child entering or being granted leave to remain or indefinite leave to remain where, for instance, both parents are Points-Based System migrants.
What are the changes in respect of the absences that are permitted from the UK during the continuous period of lawful residence required for indefinite leave to remain?
Amendments to Parts 5, 6, 6A and 7 of the Immigration Rules:
Parts 5, 6, 6A and 7 of the Immigration Rules include provision for indefinite leave to remain for the following work-related routes of entry:
work permit holder
representative of an overseas newspaper, news agency or broadcasting organisation
employee of overseas governments or the United Nations or other international organisations of which the UK is a member
minister of religion, missionary or member of a religious order
airport-based operational staff of overseas-owned airlines
writer, composer or artist
retired person of independent means
highly-skilled migrant programme
private servants in diplomatic households
domestic workers in private households
the following Points-Based System categories:
Tier 1 General
Tier 2 General
Tier 2 Sportsperson
Tier 2 Minister of Religion
Tier 2 Intra-company transfers
Tier 5 (International agreement) – private servants in diplomatic households granted under Rules in place before 6 April 2012 only.
The Rules are being amended to clarify the absences that are permitted from the UK during the continuous period of lawful residence required for indefinite leave to remain in all these categories. Up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application for indefinite leave to remain may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.
Minor amendments will be made to the requirements under Appendix FM-SE for specified financial evidence in support of family migration applications under Appendix FM, in line with the Rules for the Points-Based System. This will provide more flexibility than previously allowed.
Amendments will also be made to the evidential flexibility policy under Appendix FM-SE:
To allow applications to be deferred pending submission of missing evidence or the correct version of it within a reasonable deadline.
To enable applications to be granted despite minor evidential problems where the caseworker is otherwise satisfied that the applicant meets the requirement to which the document relates.
To read a summary of all the changes, most of which have been included in this page, please read the Statement of Changes on the Home Office website here.