New rules from April 2011 unveiled

If the cap fit

Singing his songs of freedom Rastaman Marley sang something like “if the cap fit let them wear it” and, rather than wearing a big cap on her little head, the SSHD should follow Bob’s wise advice. Pundits in London’s “policy” sector (these people are not getting it) relied on the MAC report and how it would make the government change its policy on immigration. Yet that expectation has not been matched and instead the PBS will again be amended. The UKBA’s inadequately trained staff will no doubt struggle in making reasonable and well informed decisions.

The latest post on the immigration rules as of 6 April 2011 is available here or click Rastaman Marley’s picture above. Another post on the April rules is available here. Information in relation the April fees can be viewed here. The most updated post on the new dynamics of ‘restricted’ and ‘unrestricted’ CoS under Tier 2 can be viewed here. The latest on the new student rules from April 2011 is available here. All these posts are definitely worth checking out and I am reproducing them hereunder as well for my readers’ convenience.

DIRTY CASH WE NEED YOU

Statement of changes HC 863 to the immigration rules was published by the government on 16 March 2011 and will come into force on 6 April 2011. It is a substantial document which makes various amendments.

In sum, through the above statement, the government has:

I. Created a new Prospective Entrepreneur category, for those coming to the UK to seek funding or to create a team for a new business idea

The existing £200,000 threshold for this category has been revised and from April 2011 applicants will qualify with £50,000 if the funds are provided by (a) venture capitalists registered with the FSA; (b) registered UK entrepreneurial seed funding competitions; and (c) UK government departments. Unlike the £200,000 category – owing to the requirements in relation to the way the funds are to be held – the new £50,000 route is not straight forward at all (if anything, it is rather inflexible).

Moreover, if two business partners have equal access to the funding then they will be able to use the route jointly. Moreover, entrepreneurs who create ten full-time jobs or have a turn over of £5,000,000 will be able to apply for settlement after three years.

Tier 1 (Entrepreneur) migrants will be allowed absences from the UK for up to 180 days in any 12 months without prejudicing their applications for settlement. They may also register with the HMRC within six months of arrival in the UK rather than the prior three-month period. The category is not subjected to annual limits.

II. Created a new category in Tier 1 of the Points-Based System for “exceptionally talented’ economic migrants

This category will be subjected to an annual limit of 1000. Details will be announced by the government in due course. There’s a nice UKBA Tier 1 item here.

III. Implemented changes to the Tier 1 categories for Entrepreneurs and Investors, by including provisions for accelerated settlement

The amendments will enable Tier 1 (Investor) migrants to qualify for accelerated settlement, the red-carpet treatment, if they have invested:

  • A sum of £10 million or more for two years; or
  • A sum of £5 million or more for three years.

Moreover, as with Tier 1 (Entrepreneur), Tier 1 (Investor) migrants will be permitted to be absent from the UK for up to 180 days in any 12 months, without prejudicing their applications for settlement.

Tier 1 (Investor) migrants will continue to qualify for indefinite leave to remain after five years if they have invested £1 million in the UK. This category is not being made subject to an annual limit.

IV. Implemented changes to the Tier 2 (General) category, including an annual limit relating to applications from overseas, and revised minimum skill, salary and English language thresholds (the latest Tier 2 post can be viewed here)

  • Certificates of Sponsorship available for out of country migrants in Tier 2 General will be limited to 20,700 for the year from 6 April.
  • The route will be reserved for graduate level occupations only.
  • The minimum English language requirement for Tier 2 General will be raised to B1 on the CEFR scale.
  • The UKBA will operate the limit on a monthly basis. To this end 4,200 places have been reserved for the first month and 1,500 places per month there after.
  • When the limit is undersubscribed in a given month the places will be carried over to the next month.
  • Where the limit is oversubscribed the UKBA will prioritise according to scarcity of skills in the first instance and then according to salary.
  • Scientists, academics and researchers will be afforded an additional premium. Prioritisation will be effected by virtue of a table. (Sedley LJ disapproved of these expressly in Pankina – but alas the SSHD will never learn.)
  • The Tier 2 Intra Company Transfer route will be reshaped and focused on specialists and managers:
    • Transferees will be able to come to the UK for up to five years if they are paid over £40,000, including allowances.
    • Other transferees will be able to enter for up to 12 months if paid £24,000 or more.
    • There will be a 12 months cooling off period at the end of the migrants stay to prevent individuals being perpetually sent to the UK for 12 month periods.

V. Introduced new criminality and income thresholds to settlement applications, requiring applicants to be clear of unspent convictions

  • A new criminality threshold will be applied to settlement applications. This will require that all applicants have a “clean” past, i.e., they must be “clear” of unspent convictions.
  • Moreover, the income criteria that applies to those on a temporary route will also apply when they apply for settlement.

VI. Reduced the re-entry ban for those who voluntarily leave the UK promptly and at public expense

  • People who voluntarily leave the UK promptly at public expense will have their re-entry ban reduced from 5 years to 2 years.
  • Whereas people who continue to delay receive a 5 year or 10 year re-entry ban.

VII. Created an entry route for the post-flight family members of refugees and those granted humanitarian protection

Part 8 of the rules will be amended to reflect that where a refugee or beneficiary of humanitarian protection has only limited leave to remain in the UK, following the decision in FH (Post-flight spouses) Iran [2010] UKUT 275 (IAC), a route has been created for the spouse, civil partner, unmarried or same sex partner or minor children of a person with limited leave to enter or remain in the UK as a refugee or as a person with humanitarian protection, so that they can apply for entry clearance on the same basis as those family members whose sponsor is present and settled in the UK. However:

  • Family members would have to be able to be maintained and accommodated by the refugee or beneficiary of humanitarian protection without recourse to public funds.
  • And would have to meet the pre-entry English language requirement that is currently required for spouses, civil partners and unmarried partners under the rules.
  • Moreover, a family member may apply for indefinite leave to remain in the same way as those entering through the normal settlement route provided the sponsor is present and settled in the UK and also has indefinite leave to remain.

Changes have been also been made to the refugee family reunion rules in paragraphs, 352AA and 352FD. These apply to the pre-flight family members of a refugee or person with Humanitarian Protection:

  • A new provision is being made to prevent entry clearance being granted to the unmarried or same sex partner of a refugee or person with humanitarian protection if the applicant and the sponsor are so closely related that they would be prohibited from marrying each other in the UK.

VIII. Exempted diplomatic and special passport holders from Qatar, the United Arab Emirates and Oman from the visa requirement for visitors

This must be to facilitate the exit of corrupt elites from these “countries” when their populations revolt in the face of sheer oppression and tyranny!

IX. Resolved to bring various existing PBS requirements within the immigration rules

  • To stop the Pankina Party from raging on

X. Decided to keep the Post-Study Work visa until April 2012

Until April 2011, the only changes to the PSW visa are that if the applicant is claiming points from a Scottish institution then the said institution must be on the list of Education and Training providers which is approved by the Department of Business Innovation and Skills. Moreover, the PSW visa will not be granted if the institution concerned is removed from the relevant list and the qualification is completed subsequent to the removal.

However, following the Tier 4 consultation the UKBA has announced that it will abolish the PSW visa and students will have to be sponsored for a minimum salary of £20,000 so that they can stay in the UK to work under Tier 2 (General). The latest post on the new student rules is available here. A summary of the new student policy can be accessed here. Therein UKBA has explained that:

Post-Study Work

The current Post-Study Work route will be closed from April 2012.

Those graduating from a UK university with a recognised degree, PGCE, or PGDE will be able to switch into Tier 2.

There will not be a limit on these switchers.

They will only be able to switch if they are in the UK, before their student visa expires.

The normal Tier 2 requirements will apply, except for the Resident Labour Market Test.

We will ensure that genuine student entrepreneurs with a great idea are able to stay on in the UK to develop their business proposition.

An older post on the PSW visa category is available here. I can say from the Tier 2 (General) interim amendments/limits (changing salary bands every month and the monthly committee on CoS!) saga that the switching mechanism which has been proposed by the UKBA was never adhered to by its functionaries in the past. In fact the PSW category and switching to Tier 2 (General) was something that the agency never really addressed on its CoS(AR) form at all. With this in mind there is a lot which the UKBA can do to improve the quality of its services: some clarity would be nice as well. It’s not that I don’t get it, it’s that they don’t.

Therefore, we can only hope that in future the UKBA can learn to act reasonably with respect to students who are switching from Tier 4 to Tier 2 – please have a bit on the form for it, or at least pretend to.

NEW STUDENT RULES

As I entered the UK in the year 2000 under paragraph 57 of the immigration rules (as they were then in force), I could not resist writing about the changes to the immigration rules with respect to students. In the old days students had to leave the UK after completing their studies. The PBS removed this requirement from the rules and students made, myself included, the most of their new rights in the UK.

Now the government has imposed unprecedented new restrictions on the rights of students who are a massive source of revenue for the UK. But the home secretary and prime minister have been unequivocal in their rejection and condemnation of the current immigration rules for students. While there is a lot of abuse of the rules for students, one would have to disagree in the deliberately strident manner in which the Conservatives have sought to implement their changes to the student route under the immigration rules. In fact most lawyers would rightly point out that the latest amendments to the rules will inevitably result in legal challenges against the government.

For the home department “tougher entrance criteria” and “limits on work entitlements”, compounded with “the closure of the post-study work route” remained the hallmarks of the changes to the student visa system.

The changes are subsequent to a major public consultation which sought to reform Tier 4 of the PBS after a Home Office review claimed that there was widespread abuse in the student visa system. According to the UKBA “a sample of Tier 4 students studying at private institutions revealed that 26 per cent of them could not be accounted for” (my emphasis).

Therefore, off on a new bender, the Home Office has tried to take the bull by the horns. The main changes to the rules are that:

  • From April 2012, institutions wanting to sponsor students will need to obtain an Highly Trusted sponsor licence, Moreover, sponsoring institutions will need to become accredited by a statutory education inspection body by the end of 2012.
  • Students coming to study at degree level will need to speak English at an upper intermediate level B2 CEFR rather than the present B1 lower intermediate requirement.
  • The UKBA will be entitled to refuse entry to students who can’t speak English and need an interpreter.
  • Only students at universities and publicly funded further education colleges will be allowed work rights and all other students will be excluded from working (legally at least).
  • Only postgraduate students enrolled in universities or government sponsored students will be allowed to bring their dependants.
  • The UKBA will limit the total time which can be spent on a student visa to 3 years “at lower levels (as it is now)”, however, visas will be granted for “5 years at higher levels”. Presently, foreigners are quite free to study as long as they wish.
  • The Tier 1 (Post-Study Work) visa, a “bridge visa” which allowed students 2 years to find a job following the successful completion of their course will be deleted from the rules in April 2012.
  • Only graduates who have an offer of a skilled job from a sponsoring employer under Tier 2 of the points-based system will be able to stay to work.
  • The government has promised the development of an updated entrepreneur visa for “bright and innovative students” (“only the best and the brightest”) who posses business ideas and acumen and want to expand upon these in the UK.

Mrs Theresa May has taken great pains to advocate her points with respect to making the rules accessible to “genuine” students. In the ten plus years which I have spent in the UK, I can say that the home secretary might be right about abuse to the system; but not every genuine student is treated as such by the British authorities and while bogus students have had a free hand in the UK, many a genuine student has been removed because of minor mistakes here and there in leave to remain applications.

But the real question for Mrs May is whether, in the long run, it was right to for the UK to lure people to study here and then to go on to dash their hopes by disallowing them the right to work and finance their studies? And is it right to split people’s families by mandating the exclusion of dependants? It seems that the promise of the ‘best and the brightest’ is something pledged only to the richest.

The government’s plutocratic policy agenda is well minded to take on board that the rich elites in the developing world are much happier in their corrupt and lawless home countries.

The government should also realise that globalisation has meant that mostly relatively poorer immigrants who want to escape from an inexorably corrupt environment are likely to come to the UK to study and work in order to build a career here so that they can escape the oppression at home.

The UKBA policy summary espousing the changes is available here.

The original post continues below (which I posted last year in November).

The new plan will cap the number of skilled non-EU workers that businesses can bring into the UK. The ICT route will be outside the annual limit and  Tier 1 – the “highly skilled” tier of the PBS - will be closed apart from entrepreneurs, investors and people of “exceptional talent”.

The new rules will include:

  • The introduction of an annual limit of 21,700 for those coming into the UK under the skilled and highly skilled routes – 20,700 migrants under Tier 2 (General) and 1,000 migrants will annually be allowed under the new ‘exceptional talent’ route.
  • Having a £40,000 the minimum salary for those coming under the Tier 2 (Intra company transfer) route for more than 12 months.
  • Closing Tier 1 to all applicants apart from entrepreneurs, investors and the exceptionally talented.
  • Requiring occupations in Tier 2 (General) to be at graduate level.

The home secretary had lots to say about how watertight her new system was and she related the new developments to the abuse of the previous system and Britain’s long term economic interests.

From April 2011 applicants under Tier 2 will need to hold graduate degrees in addition to sponsorship (by an employer) and will be awarded points based on scarcity of skills and salary. However, in contrast to the past they will be made to competing against each other to obtain a visa to enter the UK and owing to the scarcity of spaces those with more points will qualify to have a certificate of sponsorship assigned to them.

The Tier 2 (ICT) route will remain open for business but they will have to show a salary of £40,000 to stay more than 12 months and their stay will be restricted to 5 years.

Tier 4 will be subjected to an 8 week consultation. This is the busiest route in the PBS and the government claims that it is “introducing a system that is more selective and more robust” which attracts “the top students to our top universities.” This will include:

  • For adult students, focusing Tier 4 on higher-level courses and those offered by Highly Trusted sponsors.
  • Introducing tougher entry criteria such as English language competence.
  • Ensuring that students wishing to extend their studies show evidence of academic progression.
  • Limiting the student’s entitlements to work and sponsor dependants.
  • Improving the accreditation process for education providers, alongside more rigorous inspections.

There was a lot of talk about legitimate stays and the great British universities but all of the above are not even a drop in the ocean when the real problem of EU immigration is considered. Moreover, there are potential conflicts with the Convention in the above points. No matter how demonic a gloss the government puts on the non-EU immigration debate, curtailing a few visas here and there will not make much of a difference to net migration to the UK.

NB: NEW TIER 2 STRUCTURE

The 6 April 2011 changes in the immigration rules will modify Tier 2 (General) by dividing Certificates of Sponsorship (CoS) into ‘restricted’ and ‘unrestricted’ categories. In the restricted category, a cap of 20,700 will be maintained and 4,200 CoS will be available for the first month and 1,500 will be made available thereafter. In the unlikely event that there is under-subscription, the UKBA proposes to add on the unspent balance onto the next month. In times of oversubscription, priority will be given to points scored which applicants will have to match on a ‘new points table’.

Critics are calling this a reintroduction of the ‘old work permit scheme’. And to create more work for the agency, would be sponsors will have to apply for restricted CoS to the ‘monthly panel’ (and they will have to be shown the money of course).

The points system will give priority to occupations on the new shortage occupation list, those which are at ‘PhD level’, and then those occupations which meet the requirements of the RLMT (the resident labour market test). In relation to the salary spectrum, points will be awarded for salary bands ranging from £20,000 – 20,999 to 100,000 –  £149,000: it should be noted that the higher salary bands will given further or ‘bonus’ points.

The CoS classified as ‘unrestricted’ will remain unaffected by the limit. These applications will include ICT (inter company transfers), existing Tier 2 migrants who are extending their leave, switchers from a permitted category, those who are provided for under transitional arrangements, those fortunate enough to be earning more than £150,000, and Tier 2 sportspeople and ministers of religion. The UKBA will allocate sponsors with unrestricted CoS in accordance with what the agency considers appropriate.

The new graduate and shortage occupation lists, which are compiled with advice and recommendations from MAC, may mean that many existing occupations on the list might be removed as they fall foul of the new graduate level requirement.

Language requirements are being enhanced and Tier 2 applicants will have to exhibit their competence in English at level B1 of the CEFR (common European framework for referencing).

Importantly, Tier 2 applications for entry clearance will not benefit from points for qualifications.

The above serves as a warning to anyone who wants to engage with UKBA’s bureaucracy. The British are an outrageously bureaucratic people and this point is easily made with just one glimpse of Germany’s equivalent of the UKBA – Das Bundesamt für Migration und Flüchtlinge or the BAMF.

However, the Germans have these really stupid tests only for Turks called “Wissenstests” which are really absurd. Perhaps British bureaucracy has its strengths; they most certainly have infected vast parts of the world with their vice. A personal request: it would be nice if maybe one day the Home Office could please stop making mistakes in sending documents. It’s about time they started getting addresses for service in immigration applications and appeals right: maybe the MoJ could provide them with an able person.


About Asad Khan

Advocate High Courts of Pakistan
This entry was posted in Article 8, PBS, Tier 1, Tier 2, Tier 4, UKBA, Uncategorized and tagged , , , , . Bookmark the permalink.

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