Points-based system, switching, etcetera

From July onwards last year Tier 1 (Post-Study Work) visa holders began to face difficulties in switching into Tier 2 (General) because it became virtually impossible to get the UKBA to grant new CoS in the £20,000–£23,999.99 salary band.

New sponsors on the Sponsorship Register who had their limits set to zero and requested initial CoS faced the difficult task of applying to the UKBA under a monthly allocation process which was considered by a panel of the agency’s managers; the panel granted CoS applications in accordance with earnings; the formula used by the panel dictated that requests for CoS which satisfied the £30,000–£40,000 salary range should receive priority.

On 19 July 2010 the UKBA introduced the CoS(AR) form on its website by virtue of which applications for initial or additional CoS were made. With the imposition of the permanent limit following the 6 April 2011 changes to the Immigration Rules, the CoS(AR) form was removed from the agency’s website.

In contrast to the interim limit, the introduction of the permanent limit on Tier 2 (General) on 6 April 2011 seems to have restored the equilibrium for post-study workers which existed prior to the current government’s ascent to power; this is so because at present post-study workers may obtain 30 points while switching into Tier 2 (General) (without satisfying the Resident Labour Market Test) if they work continuously for six months for the same employer–prior to switching into Tier 2 (General).

Where an employer offers a £20,000 per annum salary to a post-study worker switching into Tier 2 (General), the worker will get 20 points more and, with the 30 points from above, will accumulate a total of 50 points; requiring a further 10 points each for English and maintenance to achieve the necessary total of 70 points. (To get an initial visa for 3 years which may be extended for a further two years and may result in the grant of settlement if less than 6 months is spent outside the UK in the total five years.)

Although the Tier 1 (Post-Study Work) visa will be deleted from the immigration rules in April 2012, the introduction of the permanent limit has brought with it the emollient feature that existing post-study workers are able to switch into Tier 2 (General) using “unrestricted” CoS (which are not subjected to a limit). It should be noted, however, that this is no great new innovation because it is precisely what was practised by the UKBA (without the “restricted” and “unrestricted” CoS jargon) prior to the Coalition government’s immigration cap.

The other avenue open to post-study workers–given that over the last couple of years 38,000 such visas were granted annually, there must be tens of thousands of immigrants in the UK under this category–is to switch into the Tier 1 (Entrepreneur) category; the new £50,000 version should provide clever foreigners an opportunity to stay in the UK if they get funding from (i) one or more registered venture capital firms regulated by the FSA; (ii) one or more UK entrepreneurial seed funding competitions which is listed as endorsed on the UK Trade & Investment website (see previous post here); or (iii) one or more UK Government Departments (made available by the Department(s) for the specific purpose of establishing or expanding a UK business).

The freshly launched Tier 1 (Exceptional Talent) category has been restricted to entry clearance applications and the UKBA has explained that “There is no provision in the Immigration Rules for a person already in the United Kingdom in another category of stay to switch in-country into the Tier 1 (Exceptional Talent) category.” Therefore, people already in the UK shouldn’t get their hopes up about extending their stay under this category.

Moreover, the closure of Tier 1 (General) has meant that many migrants who wish to come to the UK are left with no option but to consider the £200,000 Tier 1 (Entrepreneur) visa. Even in-country, post-study workers are, of course, not able to switch into Tier 1 (General). Since “employment”–as interpreted in the Immigration Rules–includes “self-employment and engaging in business or any professional activity”, any post-study workers who have legitimately acquired a UK business of their own would find it quite easy (if they can match the high capital threshold) to switch into the £200,000 entrepreneur category.

The great thing about the Tier 1 (Entrepreneur) route is that entrepreneurs who create at least ten full-time jobs in 3 years’ time qualify for settlement in 3 years–in fairness to the Coalition government this nifty variation does belong to them. Equally, provided that an entrepreneurial business can exhibit a turnover of £5,000,000 or more, settlement rights can be acquired after 3 years.

The revised Tier 1 (Investor) visa provides opportunities to migrants to acquire even more accelerated settlement (and ultimately citizenship) rights in the UK. But in attracting investors the government’s dilemma is that the UK’s economy is doing badly–“plagued by high inflation and low interest rates and mayhem in the world’s financial markets”–and the authorities are also struggling to keep public order.

The recent riots have done a lot of damage to the UK’s reputation as a civilised, peaceful and democratic country. After all that happened the country’s politicians will have to work very hard indeed to restore domestic and international confidence in the UK as a place which is good for business: the deaths of three Asian men in Birmingham are at the apex of the problem confronting the UK.

In a less serious matter, the PBS judicial review JCWI, R (on the application of) v SSHD, [2010] EWHC 3524 (Admin)–apologies to reduce this to etcetera for now–has landed up in the UK Supreme Court.

On 8 July 2011 the Supreme Court (Lords Hope, Brown and Dyson) granted the government permission to appeal. The proceedings should be really fantastic to watch on UK Supreme Court live.

In the Divisional Court, both JCWI and ECCA won on the ground that the manner in which the limits for Tier 1 and Tier 2 were imposed was unlawful in the light of the decision of the Court of Appeal in Pankina v SSHD [2010] EWCA Civil 719[2010] 3 WLR 1526.

In the event that the SSHD loses on appeal, the decision will have a lasting effect on the manner in which future government policy in relation to immigration will be structured.

This is a very important case because the question which the Supreme Court will be answering is whether the SSHD acted lawfully by side-stepping the full requirements of the Immigration Act 1971 when she imposed interim limits on Tiers 1 and 2 of the PBS.

For the sake of completeness it is worth remembering that the UKBA’s use of a monthly allocation panel to “exceptionally consider” CoS applications–using the CoS(AR) form–was not found to be irrational by Lord Justice Sullivan in the Divisional Court in the JCWI case.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Employment, Immigration Cap, Immigration Rules, JCWI, Pankina, PBS, Tier 1, Tier 2, UKSC, Uncategorized and tagged , , , , , , , . Bookmark the permalink.

1 Response to Points-based system, switching, etcetera

  1. Tahir Ashraf says:

    Public order and the economy. I believe what the uk needs is more cuts. But nit the sort that we are becoming accustomed to seeing. In fact a cut in the VAT rate might assist consumer confidence. Having said that investors faced with the prospect of being able to integrate sooner will still face the hurdles associated with integration.

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