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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.

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.

Protecting EEA nationals’ rights of residence post Brexit

What should EEA nationals in the UK do now to protect their rights?

Whilst it was initially assumed that the rights of EEA citizens living lawfully in the UK would be automatically protected, their long term status is now far from guaranteed.

Those who have already acquired permanent residence and those who have an EU right of residence but have yet to acquire permanent residence are more likely to be protected. Although strictly speaking EEA nationals are not required to document their rights, in the light of the recent developments, it would be highly advisable to obtain documents proving the exercise of EU law rights in their status in the UK.

Documents proving the exercise of EU Law rights include:

For EEA national workers and their EEA national family members

– A UK Document Certifying Permanent Residence for those who have already acquired permanent residence automatically by the operation of Law having exercised treaty rights for a continuous period of 5 years; and

– A UK Registration Certificate for those currently exercising treaty rights in the UK who have yet to acquire permanent residence

For non- EEA family members of a qualified person or an EEA national with right of permanent residence

– A UK Residence card

For non-EEA family members of EEA nationals who have acquired right of permanent residence

– A UK permanent residence card

Which form?

The EEA (PR) is for permanent residence of EEA nationals and their family member;

The EEA (QP) is for residence certificate for EEA nationals – the Home Office offers an express service at some of his premium service centers;

The EEA (FM) is for residence card for non-EEA family members and those with retained rights

The EEA (EFM) is for residence card for extended family members defined as dependant relatives

The DRF1 is for applications by family members on the basis of derived rights of residence.

What is the cost?

There is currently a mandatory fee of £65.

Non EEA family members are required to enroll their biometric information when applying for their residence card. This process costs an additional £19.20.

How long does it take?

The Home Office has an obligation to issue residence documents within six months of application.  Whilst most applications from EEA nationals are dealt with within weeks, applications from non-EEA nationals usually take months.

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.