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 change to the PSW visa is 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.







About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in AP (Russia), ECHR, Immigration Law, Immigration Rules, Pankina, PBS, Post Study Work, Special Talent, Tier 1, Tier 2 and tagged , , , , , . Bookmark the permalink.

2 Responses to Dirty cash we need you

  1. kashif says:

    Can you elaborate how international students will be affected by changes?

  2. mkp says:

    Read the statement please, you can click it: you can’t expect me to tell you everything Mr Iqbal. I’ve got a really hard German exam next week

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