Yet another set of changes in the immigration rules is around the corner and most of these will enter into force on 13 December 2012. To this end, Statement of changes in Immigration Rules HC 760 envisages a plethora of changes to the rules insofar as Tier 1, Tier 2 and Tier 5 of the Points Based System (PBS) are concerned.
Moreover, intertwined with these variations, changes in relation to “a more robust and clear criminality framework to assess immigration applications” are also forthcoming. The details are available below.
The impending changes will:
- Apply a new criminality threshold to all type of applications.
- Remove the references to unspent convictions as a requirement to make a successful application for indefinite leave.
- Make corresponding changes to the periods before a deportation order will normally be revoked.
- Introduce a re-entry ban of five years for any offender who leaves the UK as a requirement of a conditional caution in line with section 134 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
- Introduce a discretionary power to curtail leave if a person commits an offence within the first six months of being given leave to enter the UK and is sentenced to a period of imprisonment.
Tier 1 PBS
Corrections are being made to Tier 1 (Exceptional Talent) which was recently amended to include provision for some applicants in other categories to switch in-country to allow those applicants to be granted three years leave to remain; rather than two years. Moreover, applicants will not be automatically awarded points for English language ability unless an earlier application evidences their ability or exemption from this requirement.
Changes are being made to the Tier 1 (Entrepreneur) route. These will expand the scope of the reduced £50,000 route, rather than £200,000, to include funding from Departments of Devolved Administrations in addition to funding from specified sources such as UK Government Departments. Moreover, in order to attract investment in hard economic times, the English language requirement for Tier 1 entrepreneurs is being reduced to level B1 CEFR (intermediate) from level C1 (advanced).
The Tier 1 (Graduate Entrepreneur) route, which superseded the deleted Tier 1 (Post Study Work) category, is being fortified against “abuse”. Accordingly, students will only be able to switch into this route if they have access to £50,000 funding from a specified source (registered venture capitalist firms, UK Government or Devolved Administration Departments, or listed seed funding competitions).
Business funds in relation to Tier 1 (Entrepreneur) applicants will also need to adhere to the UKBA’s standards and the list of financial institutions which do not satisfactorily verify financial statements will be expanded to apply to the Tier 1 (Entrepreneur) category.
Clarifications are being made to confirm (1) that points are not awarded for funds which have been promised to other individuals, except where they are applying under the provision for entrepreneurial teams and (2) how the requirement to be working in a NQF level 4 occupation is interpreted when applied to Tier 1 (Post-Study Work) migrants switching into Tier 1 (Entrepreneur).
Moreover, a “rule” set out in guidance currently set out in published guidance – confirming that letters from HM Revenue and Customs letters for Tier 1 (Entrepreneur) applicants can be dated within 8 months of entry into the route – will be added to the immigration rules.
The Tier 1 (Investor) category catering for high net worth individuals making a large financial investment in the UK will also be subjected to heightened scrutiny and initial applicants will be required to provide evidence of the source of the required £1 million funds which are to be invested in the UK. Equally, accelerated routes to settlement in 2 or 3 years (rather than the usual 5 years) will face similar stipulations in relation to evidence of the source of the additional funds. Furthermore, curtailment provisions for Tier 1 (Investor) visas are also being introduced in the event that they fail to maintain the requisite level of investment for the duration of their leave.
In order to ensure that investments genuinely benefit the UK, no points will be awarded for investments that applicants have taken loans out against, or investments that are held in offshore custody. Tier 1 investors will also be prevented from working as professional sportspeople. Clarification is also being made to set out how the accelerated settlement period for Tier 1 (Investor) migrants is to be calculated and the principle relating to financial institutions that are unsatisfactory in verifying financial statements is being widened to cover the funds Tier 1 (Investor) applicants are required to invest.
The point that employer pension contributions do not count towards the points awarded for previous earnings in the Tier 1 (General) category is also a part of the forthcoming changes.
Tier 2 PBS
In respect of the Tier 2 (Intra-Company Transfer) category, amendments are expected to facilitate the extension of the maximum stay from 5 years to 9 years for very senior staff earning £150,000 a year or more. This change is driven by remonstrations from the business sector. A 9-year maximum meets business needs while maintaining the temporary nature of this category, by preventing applicants qualifying for settlement on the basis of long residency.
To appease a furious business sector, changes to the dynamics of the “cooling off period” (12 months) will mean that flexibility will be introduced and the cooling off period will be calculated with reference to when it is clear that the applicant has left the UK before the expiry of their leave. So, rather than the date of expiry of Tier 2 visa, the period can start from the earliest date that a person can show that they left the UK. The burden of proof, however, will lie with applicants: they will need to exhibit that they left and remained outside the UK earlier than the expiry of their visas.
There is some good news for Tier 2 (General) and Tier 2 (ICT) migrants who entered the UK between 6 April 2012 and 13 June 2012 because, rather than the NQF level 6 requirement, they will be subject to the NQF level 4 requirement when they apply to extend their stay. Likewise migrants who entered prior to the April 6 2011 rule change introducing a £40,000 level for Tier 2 (ICT) will be able to make one extension without needing to satisfy this salary threshold.
Some changes are forthcoming in relation to the Codes of Practice and salaries for barristers and the Resident Labour Market Test (RLMT). Moreover, between 19 November 2012 and 6 April 2013, NHS Jobs will be temporarily exempted from being advertised in Jobcentre Plus. Furthermore, degree certificates for PSW switchers into Tier 2 that do not show all the same details as academic references and transcripts will also be equally acceptable as evidence.
Tier 4 PBS
The interim limit provision for unsatisfactory educational institutions, expiring on 31 December 2012, is being extended until 30 June 2013.
However, employment restrictions are being eased. These encompass:
(1) Avoiding potential delays for medical degree students in beginning the next stage of their training. So students working as a doctor or dentist in training will be able to work as soon as they have submitted an application in which they are sponsored to do a recognised NHS Foundation Programme while they are waiting for that application to be decided.
(2) Allowing students who have been endorsed by their institution for the Tier 1 (Graduate Entrepreneur) category to work in self-employment while they have submitted their Tier 1 (Graduate Entrepreneur) application and while they are waiting for it to be decided.
Tier 5 PBS
The annual allocations of places in respect of the Youth Mobility Scheme are being renewed for 2013. These include:
(1) An increase in the allocations for Australia from 32,500 to 35,000 places.
(2) An increase in the allocations for Canada from 5,000 to 5,500 places.
(3) South Korea has also received an increased allocation up to the minimum annual allocation of 1,000 places.
Amendments to paragraphs 319H and 319J aim to restore (removed by Statement of changes in Immigration Rules HC 565) the possibility of a child entering or being granted leave to remain or indefinite leave to remain where, for instance, both parents are PBS migrants.
Amendments to ILR: Parts 5, 6, 6A and 7 of the Rules
The immigration rules are being amended to clarify the absences that are permitted from the UK during the continuous period of lawful residence required for ILR for work permit holders, representatives of an overseas newspaper, news agency or broadcasting organisation, sole representatives, employees of overseas governments or the United Nations or other international organisations of which the UK is a member, ministers of religion, missionaries or members of a religious order, airport-based operational staff of overseas-owned airlines, UK ancestry, business persons, innovators, writers, composers or artists, retired persons of independent means, highly-skilled migrants, private servants in diplomatic households, domestic workers in private households.
In connection to the above, up to a maximum of 180 days in any of the 12 calendar month periods preceding the date of the application for indefinite leave to remain may be spent outside the UK, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence.
This will also apply to Tier 1 (General), Tier 2 (General), Tier 2 (Sportsperson), Tier 2 (Minister of Religion), Tier 2 (ICT), Tier 5 (International agreement) – private servants in diplomatic households granted under Rules in place before 6 April 2012 only.
Family and Private Life Rules
Those who cannot qualify for ILR on criminality grounds will be granted further leave to remain. Moreover, the upcoming amendments will align the bereaved partner and domestic violence provisions of Part 8 (family members) with the policy for partners.
Moreover, applicants last granted limited leave to enter the UK under Part 8 to benefit from the same transitional provisions as those last granted limited leave to remain under Part 8.
Furthermore, applicants who have a valid claim under Article 8 of the ECHR, but who have not submitted an application under Appendix FM (family life) or paragraphs 276ADE to 276DH (private life), will be granted leave under the 10 year partner, parent and private life routes.
Changes facilitating for parents who were granted leave on the basis of a child in the UK will be allowed to remain in the UK once the child has turned 18. The benefit will be operative provided the child has not formed an independent family unit and is not living an independent life.
Moreover, children may be granted leave in line with their parent where the parent has a route to settlement as the parent of a child who is not settled but has been living in the UK for at least 7 years and it would be unreasonable to expect the child to leave the UK.
Furthermore, existing child dependants may be granted leave in line with a parent granted leave on the 5 or 10-year parent route on the basis of the parent’s relationship with another child.
The ILR requirements for children are being amended in line with the partner provisions in Part 8, to allow children who have overstayed to qualify for settlement.
A migrant parent accompanying or joining a partner here under Appendix FM who wants to be accompanied or joined by a child of a previous partner will be required to show that they have sole responsibility for that child or that there are serious and compelling family or other considerations which make exclusion of the child undesirable.
Provision is being made in Appendix FM for a migrant parent and child to be able to apply for leave to remain in the UK on the basis of the migrant parent’s shared parental responsibility for the child’s upbringing, in addition to circumstances in which the migrant parent has sole parental responsibility.
Appendix FM is being amended to clarify that a child applying for ILR should be considered under paragraph 298 of the Rules.
Parents and Partners
In order to allow asylum seekers or immigration offenders on temporary release to qualify under the 10-year partner or parent route (if paragraph EX1 of Appendix FM applies), a reference to temporary release will be included in the immigration status requirement under Appendix FM to ensure parity with those on temporary admission.
In addition, the changes will allow those granted limited leave for 6 months or less pending the outcome of family court or divorce proceedings to make an application under Appendix FM.
The parent route is not available to a migrant who is the partner of a British citizen or settled person. Appendix FM will be amended to clarify that those in an unmarried (or non-civil partnership) relationship of less than 2 years’ duration are also excluded.
The private life rules will be narrowed and the circumstances in which a child under the age of 18 can apply for leave to remain on the grounds of private life to those situations in which it would be unreasonable to expect the child to leave the UK.
As of 1st October 2012, section 56A (No rehabilitation for certain immigration or nationality purposes) of the UK Borders Act 2007 (inserted by section 140 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 or “LASPO”) came into force. For the Home Office, this will put beyond doubt whether or not the concept of a conviction becoming “spent” within the meaning of the Rehabilitation of Offenders Act 1974 is applicable in immigration and nationality decisions.
Recalculating Deportation Orders
Calculating the time a Deportation Order normally remains in force based on whether or not the conviction is capable of becoming spent is no longer considered appropriate in light of the immigration and nationality exemption to section 4 of the Rehabilitation of Offenders Act 1974.
Paragraph 320(7B) of the rules is being amended to reflect section 134 (Conditional cautions: removal etc of certain foreign offenders) of LASPO. Section 134 added a new condition to the conditional cautions scheme. In suitable cases, eligible foreign offenders who plead guilty will be diverted from prosecution if they agree to leave the UK and do not return for a specified period. Non-compliance will lead to the original prosecution being reinstated.
Persons committing an offence within the first six months of their arrival in the UK will be subject to the SSHD’s discretionary (“nip offending in the bud”) power to curtail their leave to enter or remain. The objective is to empower the authorities to act where it is obvious from the person’s actions that they do not intend to remain in the UK in accordance with the terms of their leave.
Limited leave to remain will be granted to Gurkhas and foreign and Commonwealth ex-armed forces members who do not qualify for ILR because of minor criminality. Serious offenders, however, will remain liable to deportation.