MORE CHANGES TO THE IMMIGRATION RULES

MORE CHANGES TO THE IMMIGRATION RULES

On Thursday 22nd November 2012, UKBA announced that a written ministerial statement had been ‘laid in Parliament’ bringing into force a number of changes to the Immigration Rules, which will (mostly) come in to effect 13 December 2012. (Other changes will be effective from 1st January 2012 and 28th February 2012.)

Incredibly, these will be the seventeenth changes to immigration and nationality rules and guidance this year alone! There have been eight formal Statement of Changes laid before parliament this year…

 

Tier 4/Students

Most of the changes are said to be minor, however, the decision to restrict international student graduates from switching into the Tier 1 Entrepreneur visa means, in practice, this route is now effectively closed. After 12th December 2012, in stead of being able to rely on £50k funds from family or close relatives, applicants will have to prepare to seek funds from “registered venture capitalist firms, UK Government or Devolved Administration Departments, or listed seed funding competitions.” This is called section B funding: see page 5 of the current Policy Guidance regarding ‘Eligibility to apply in the UK.’

 

Tier 1 (PSW)

The above restriction on sources of funding does not apply to those with Tier 1 (Post Study Work) status; you may continue to rely on third parties and family for funds. However, please take particular note of the following paragraph;-

(d) You

(iv) are working in an occupation which appears on the list of occupations

skilled to National Qualifications Framework level 4 or above, as stated in

the Codes of Practice in Appendix J of the Immigration Rules and the Codes

of Practice for Tier 2 Sponsors published by the UK Border Agency, and you

provide the specified evidence in paragraph 41-SD. “Working” in this context

means that the core service your business provides to its customers or clients

involves the business delivering a service in an occupation at this level. It

 

excludes any work involved in administration, marketing or website functions

for the business. (Page 7)

The UKBA say that these changes to the Immigration Rules include ‘non substantive’ changes for sponsors and migrants coming to the UK under the following routes of the points-based system:

  • Tier 1 – entrepreneurs and investors.
  • Tier 2 – skilled workers, including changes for senior intra-company transfers.
  • Tier 4 – students, including extending the interim limit.
  • Tier 5 – temporary workers including the requirements for the government authorised exchange category and private servants in a diplomatic household.
  • Sponsorship – revised sponsorship guidance will be published in December.

There is a minor concession to T1 (Entrepreneurs) in that the English language requirement is being lowered to level B1 (intermediate) from C1 (advanced). This is of no benefit to someone switching from Post Study Work as they already have a degree taught in English and qualify automatically.

In July 2011, a rule was introduced stating that no points would be awarded for maintenance funds held in institutions which UKBA is unable to verify satisfactorily. This is now being updated, expanded and widened to include the business funds required for T1 (Entrepreneur) applications.

Good news for senior T2 Intra-Company Transfer migrants! Staff earning £150,000k per annum can now stay for a maximum of nine years; up from a maximum of five! But before you raise your glasses…nine years maintains the temporary nature of this category “by preventing applicants qualifying for settlement on the basis of long residency.”

 

Criminal Convictions

Criminal convictions (even for minor road traffic offences) and County Court Judgments (CCJ’s) or Civil Judgments can lead to mandatory visa refusals, as we are already seeing.

The changes will clear (“put beyond doubt”) the position 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.

Instead, the requirements within the general grounds for refusal will determine whether or not an application will succeed. UKBA claims this improves fairness, transparency and consistency in the decision-making process.

Slightly more positive is the consequential amendment to remove the requirement to have no unspent convictions in order to make a successful application for indefinite leave.

 

Settlement

Amendments to clarify the absences from the UK that are allowed during the continuous residence period for T1 (General), T2 and pre-points based system work routes (for example work permits, self-employment and business person).

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.

 

Family and private life

Minor changes to the child and parent routes to make them as clear and comprehensive as possible.

There will also be some changes to the Youth Mobility Scheme quotas and T 4 loan letters in early 2013.

For more details of the changes see the UKBA website and the Statement of Changes to the Immigration Rules and the explanatory memorandum within the document.

We recommend in all cases that you take advice upon the particular circumstances of your case.

For further information or advice on this or other areas of immigration law please telephone One Immigration on 0116 255 2110 or click on the ‘Contact’ tab above to email your enquiry.

 

One Immigration December 2012

 

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