Category Archives: News

UK Immigration news: Changes to Tier 2, Sponsorship, Licensing and registration as a sponsor, closure of Tier 1 G scheme, changes to Tier 1 Entrepreneurs and Investors.

Changes to Tier 2 and ILR rules Dec 2017

Tier 2 (General)

The following changes are being made to the Tier 2 scheme:

• Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently non PhD students cannot apply to switch within the UK until they have received their final results.

• Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.

• Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.

• Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.

• A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change (ie 4 weeks). The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.

Changes to indefinite leave to remain in work categories

The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.

If you need Immigration legal assistance with your Tier 2 sponsorship licence application or your permanent residency application, please contact us.

WRS and Naturalisation

Aug 2017
Impact of failing to register under the Worker Registration Scheme on the naturalisation process.

Many of EU A8 nationals who came to the UK between 2004 to 2011 and failed to register under the Worker Registration Scheme, are now hesitant to apply for a document confirming their permanent residence and / or British nationality.

Whilst it is now clear that the lack of registration does not disqualify a worker from obtaining a document confirming their permanent residence, the impact of on the naturalisation process remains unclear.

A response to a FOI request in Jan 2017 appeared to indicate that if a document confirming permanent residence had been granted, the lack of registration would be unlikely to be considered as an element of good character consideration. The FOI read: ‘ Just not registering and not realizing you had to is unlikely to be a character issue’.

Since the Home Office have confirmed that they not in fact hold any policies, guidance or other related information, which relate to registering under the Worker Registration Scheme as part of the consideration of an application for British citizenship, we questioned the basis on which the response to the FOI in Jan 2017 was given.

Part of the Home Office response read as follows:

‘ it is unlikely, presumably on the basis that our good character guidance is quite extensive and, given that is it not mentioned there is an indication that it is not a significant factor. To clarify, in order to acquire permanent residence an EEA applicant has to show that they were lawfully residence and exercising Treaty rights for a continuous period of 5 years’

The assumption is that if you qualified for permanent residence, the absence of registering under the WRS would not be a factor considered under the good character requirement for obtaining British citizenship.

As the proposed new Brexit EU settlement process may require EU nationals who have already been granted an EEA PR document to have their rights to remain in the UK re-assessed, filing for naturalisation at the earliest remains the safest option at the point in time.

If you need Immigration legal assistance with your EEA PR or naturalisation application, please contact us.

EEA PR & Comprehensive Sickness Insurance

March 2017
EEA PR – the Comprehensive Sickness Insurance Requirement – the Retrospective Effect!

With the Article 50 due to be trigger before the end of the month, many EEA nationals will be keen to file for a document proving their right to reside in the UK permanently as soon as possible.

The longstanding myth that permanent residence is acquired automatically by residing in the UK for a period of 5 years has rendered many EEA nationals oblivious to the true nature of their immigration status.

For many, the requirements to be met, the amount of documentation and information to be submitted in support of their EEA PR application, has come as a complete surprise.

With the Brexit in sight, they are now facing qualifying requirements that they have never been aware of, which are being applied to them retrospectively.

The most controversial of these requirements by far is the need to have held ‘comprehensive sickness insurance’ (CSI) when relying on periods of self-sufficiency or study.

As EEA nationals residing in the UK have access to NHS care, many will be under the impression that this access amounts to having CSI. Unfortunately this is not the case at present.

Realising that access to the NHS will not suffice, applicants will hope to be able to rely on a European Health Insurance Card (EHIC) issued by another state member as an alternative to the CSI. The Home Office policy document appears to suggest that in certain circumstances an EHIC (or E111) card would be acceptable as an alternative to having a private CSI when used to obtain a permanent residence document.

The CSI requirement is likely to impact most of the people who have spent all or part of their qualifying time in the UK in a self-sufficient capacity either studying or simply being inactive.

Many scenarios come to mind when considering the devastating effects the lack of CSI could have on applicants and their families.

These include EEA elderly parents who came to the UK to be near their EEA children. Most of them will not have ever worked in the UK and will not have been dependent on their children. Without CSI, the time spent in the UK is unlikely to count toward their permanent residence’s qualifying period. There will also be EEA nationals who took time off work to have a family or care for a loved one or to go on a retreat.
Unfortunately under the current rules, in most cases, the lack of CSI will prove to be an insurmountable obstacle.

Those who do not currently have comprehensive sickness insurance have the following options:

– purchase a Comprehensive Sickness Insurance now so that to start the clock again towards the 5 year qualifying period. This, of course, depending on the outcome of the Brexit negotiations, could turn out to be a complete waste of money;
– become a self-employed person or a worker, again resetting the clock towards permanent residence ;
-stand your ground and wait to see what the Brexit negotations bring. This is by far the bravest option. Although it is likely that something will be put in place to protect EEA nationals who have resided in the UK without having the right of residence either temporarily or permanently, there is no guarantee that this will be the case.

If you need Immigration legal assistance with your EEA PR application, please do not hesitate to contact us.

EEA Regulations 2017 forms and guidance

February 2017 – The Immigration (European Economic Area) Regulations 2016 (SI 2016/20152) as amended by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1) came into effect on 1st Feb 2017.

New forms and guidance were published on the same day. Whilst the use of the forms is now supposed to be mandatory, both the guidance for EEA (PR) and the EEA (FM) form are still referring to using the form as optional. In addition the EEA Qualified Persons Modernised Guidance which was also published on 1st Feb 2017,  states that applicants ‘should’ rather than ‘must’ complete a form.

Non-EEA family members applying at the same time as the EEA principal applicant can now use the online application service.

 

 

Further changes to the Tier 2 Intra Company Transfer and Tier 2 General routes

February 2017 –

The new Tier 2 & 5 Guidance has now been published following the changes introduced in November 2016.

Change of circumstance requests normally take up to 16 weeks to be processed. The Home Office has now launched a new fee paying service to expedite certain types of requests, which include requests for an increase of an unrestricted CoS allocation, requests to replace the Authorising Officer, requests to add a new Level 1 user etc… The service offers a 5 working day turn around at a cost of £200 per request.

The start date on the CoS can no longer be delayed by more than 4 weeks. If the sponsored worker is unpaid for more than 4 weeks from the original start date, the sponsorship must be withdrawn. It is therefore pivotal that the start date be chosen carefully bearing in mind possible delays with the entry clearance process resulting from, for example: – delays with IETLS score / police clearance; – no priority service availability; – prolonged notice periods etc..

The new guidance states that for compliance purposes all documents listed in Appendix D must now be kept for one year from the date the sponsor ends the sponsorship or until a compliance officer has approved them, whichever is the shorter period.

Keeping a detailed job description is no longer required as long as the copy of the advert includes the job title, main duties and responsibilities, skills, qualifications and experience needed together with an indication of salary package or salary range and the closing date for applications. A job description must still be held on file where no Resident Labour Market test has been undertaken.

Whilst there is still a requirement for sponsors to keep all applications shortlisted for final interview, the ‘interview notes’ are now only required for rejected settled worker applicants. It follows that if no settled workers have been interviewed, the sponsor is not required to retain reasons as to why other applicants were not offered the role. Settled workers are EEA nationals, British nationals and applicants with Indefinite Leave to Remain in the United Kingdom.

Tier 2 (General)

The minimum salary threshold has increased from £20,800 to £25,000 per annum.

The following professions are exempt from meeting the new salary threshold until July 2019: Nurses, medical radiographer, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science and mandarin.

Roles aimed at UK graduates overseas will be granted additional points in the restricted CoS allocation assessment table.

Graduate trainees will be permitted to change their occupation within the graduate programme without having to undergo the Tier 2 process again.

Tier 2 (Intra Company Transfer)

The minimum salary threshold for Tier 2 (ICT) Short Term Staff has increased from £24,800 to £30,000 per annum.

The Tier 2 (ICT) Skills Transfer category is now closed to new applicants.

The minimum salary threshold for Tier 2 (ICT) Graduate Trainee category has decreased from £24,800 to £23,000 per annum. The cap has also increased from 5 to 20 graduate trainees per annum for each licenced sponsor.

Further changes to come in 2017

It is anticipated that by April 2017 further changes will be implemented. These changes will include:

– further increases to the minimum salary thresholds;
– closure the Tier 2 (ICT) short term category;
– introduction of a mandatory Immigration Skills Charge (‘ISC’) for all Tier 2 migrants, set at £1000 per annum at present.

If you need Immigration legal assistance, please do not hesitate to contact us.

Travelling without BRP

November 2016 –  The lack of clear published guidance on this particular problem has recently led us to approach the Home Office to seek clarification.

Below you will find verbatim extracts from their answers to our questions.

When asked about re-entering the UK without a BRP after the expiry of the temporary vignette, the Home Office stated: ‘The Border Force Officer (BFO) will undertake various mandatory checks including confirming the passenger’s nationality and identity as stated in a valid passport. The BFO, in absence of a BRP, can verify the immigration status of the passenger using the government database. It the officer is satisfied the passenger can be granted entry and the passport endorsed with an open date stamp and a manual annotation of the BRP’s unique number above the endorsement’…’the passenger will normally be encouraged to collect their BRP before travelling again’.

 Although this seems to indicate that travelling without BRP in these circumstances might be possible, in our experience most BFOs will strongly advise against it.

As airlines are not supposed to carry visa nationals without a valid visa, the guidance states that: ‘ visa nationals are likely to experience significant barriers to returning to the UK as carriers will be reluctant to provide carriage to an individual for whom they may be liable to a penalty. In the case of a isa national who arrives without their card or any other evidence of their continuing leve, unless there has been prior agreement by the port Border Force Higher officer or the Immigration Liaison Managers (ILM) for them to travel, carriers liability action must be considered.

If you need Immigration legal assistance, please do not hesitate to contact us.

 

EEA PR: Nationality applications ‘rejected’ by the Nationality Checking Service

September 2016 – Naturalisation applications from EEA nationals ‘rejected’ by the Nationality Checking Service.

We have recently come across a large number of EEA applicants who have found their applications for nationality turned down by the NCS on the grounds that they have held their Permanent Residence card for less then 12 months.

This is usually the case even when the applicant is in a position to show that they were granted permanent residence by the operation of law more than 12 months from attempting to file for naturalisation.

Following one of our client’s recent experience at the NCS where they were told that ‘the records showed that permanent residence had been held for less than 12 months’, we decided to contact the UKVI to seek clarification as to whether the Local Authority NCS did indeed have access to applicants’ details.

Their response reads as follows: ‘The Local Authority Nationality Checking Service (NCS) are not allowed to give any unsolicited advice on nationality or immigration matters.  As it is an unwaivable requirement that applicants have settled status they are expected to demonstrate this at the appointment.  However, if an EEA national has only held their Permanent Residence card for less than 12 months, the LA (with the applicant’s permission) can call us to see how early they were considered to be settled to enable them to apply under section 6(1) of the British Nationality Act 1981.’

 To avoid delays and additional costs, applicants should make use of the Subject Access Request to confirm the date they are deemed to have gained permanent residence 12 months or more from filing for naturalisation.

When filing for permanent residence, it is highly advisable to enclose a letter highlighting the 5 years the UKVI should take into account when assessing the application. This especially when submitting supporting documentation that runs all the way to the date of submission of the permanent residence applications.

Should the UKVI have entered an incorrect date, applicants should seek to get the said date corrected before proceeding with their naturalisation application.

For further information, please contact us.

Right to Work Checks – Workers and Employers Beware

July 2016 –The Home Office has tightened the noose on illegal working even further. This could have a considerable impact on foreign workers and employers alike if ignored.

LEGAL BACKGROUND

Sections 34 and 35 of the Immigration Act 2016 came into force on 12 July 2016.
Section 34 amends the Immigration Act 1971 by introducing a new offence of illegal working (section 24B).
Section 35 amends section 21 of the 2006 Act, which sets out the criminal office of employing an illegal worker.

ILLEGAL WORKING:

With effect from 12 July 2016, under section 24 B of the 1971 Act (as inserted by section 34 of 2016 Act) a person commits the offence of illegal working if he is:
• subject to immigration control and works when disqualified from doing so by reason of his immigration status; and
• at the time, he knows or has reasonable cause to believe that he is disqualified from working by reason of his immigration status.

A person has been disqualified by reason of his immigration status if:
• he has not been granted leave to enter in the UK; or
• his leave to enter or remain in the UK: – is invalid; or – has ceased to have effect (due to curtailment, or revocation, or cancellation, or passage of time); or
• is subject to a condition preventing the person from doing work of that kind.

In other words, a person commits this offence if they are subject to immigration control and work when they know full well, or have reasonable cause to believe, that they have not permission to do so.

The offence of illegal working is not limited to working under a contract of employment and is intended to cover all types of work, including apprenticeships and self-employment.

Under the new offence, wages from illegal working can be seized as the proceeds of crime. In England and Wales carries a maximum penalty of six months’ imprisonment and/or an unlimited fine. The fine is limited by status in Scotland and Northern Ireland.

EMPLOYING AN ILLEGAL WORKER

Section 21 of the 2006 Act (as amended by section 35 of the 2016 Act) an employer commits an offence if he employs an illegal worker and knows or has reasonable cause to believe that the person has no right to do the work in question. This means that an employer can no longer evade prosecution by claiming that they did not know that the employee in question had no permission to work.

The amended offence allows the investigating agency to prosecute employers when it is found that ‘the employer have reasonable cause to believe that the employee could not undertake the employment, even where they perhaps deliberately ignored the information or circumstances that would have caused the employer to know that the employee lacked permission to work.’

The offence of employing an illegal worker is not limited to staff under a contract of employment, it also applies to contracts of service or apprenticeship, whether expressed or implied, whether oral or in writing.

The maximum sentence on indictment for this offence has been increased from 2 to 5 years.
The civil penalty of up to £20,000 per illegal worker will continue to be applied as sanction in most routine cases – however the Home Office has warned that in serious cases, prosecution may be considered where it is an appropriate response to non compliance.

The UKVI have published a new guide, which can be found at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/536953/An_Employer_s_guide_to_right_to_work_checks_-_July_16.pdf

The guide applies to checks required on or after 16 May 2014.

Changes to Tier 2 as early as autumn 2016!

March 2016 -The Government has today announced its response to two reviews of Tier 2 policy by the independent Migration Advisory Committee (MAC).

The changes are as follows:

For Tier 2 (General)

The government will increase the Tier 2 (General) minimum salary threshold to £25,000 in autumn 2016, and £30,000 in April 2017 for experienced workers, whilst maintaining the current threshold of £20,800 for new entrants.

The government will weight overseas graduates more heavily in the Tier 2 (General) limit and enable graduates to switch roles within a company once they have secured a permanent role at the end of their training programme.

The government will waive the Resident Labour Market Test and give extra weighting within the Tier 2 (General) limit where the allocation of places is associated with the relocation of a high-value business to the UK or, potentially, supports an inward investment.

Nurses, medical radiographers, paramedics and teachers in mathematics, physics, chemistry, computer science and Mandarin, will be exempt from the new salary threshold until 2019.

Nurses will remain on the Shortage Occupation List but employers will need to carry out a Resident Labour Market Test before recruiting a non-EEA nurse.

The government will not implement the MAC’s recommendations that students switching from Tier 4 to Tier 2 should be included in the annual limit and be subject to the Resident Labour Market Test.

For Tier 2 (Intra-Company Transfer

All intra-company transferees (except graduate trainees) will have to qualify under a single route with a minimum salary threshold of £41,500. By April 2017, the government will have closed the Skills Transfer and Short Term visa categories to new applications.

There will continue to be a separate ICT category for graduate trainees, with a lower salary threshold of £23,000 and an increased limit of 20 places per company per year, rather than 5 places as at present.

The high earners’ threshold will be lowered from £155,300 to £120,000 for transferees looking to stay in the UK for between 5 and 9 years.

The government will remove the one year experience requirement for transferees paid over £73,900.

All transferees will be required to pay the Immigration Health Surcharge and there will be a review of the use of allowances.

The government will not implement the MAC’s recommendations that ICTs should be required to have worked for their company for two years, rather than 12 months, or that transferees working on third party contracts should be restricted to a separate category.

Across both Tier 2 routes

The Immigration Skills Charge will be levied on Tier 2 employers at a rate of £1,000 per person per year from April 2017. A reduced rate of £364 per person per year will apply to small and charitable sponsors. PhD roles, Tier 2 (Intra-Company Transfer) Graduate Trainees, and Tier 4 to Tier 2 switchers will be exempt.

The transitional arrangements for workers sponsored at NQF levels 3 and 4 will be closed over the next two years.

The Immigration Rules for work categories will be simplified, making them easier for sponsors and applicants to understand.

To give sponsors time to prepare, the government are not making changes immediately and will introduce their reforms in two stages – in autumn 2016 and April 2017.

The written ministerial statement is available on www.parliament.uk

For further information or an assessment of the chances of your application being approved, please contact us.