A statement of changes to the immigration laws HC309
By Danielle Cohen Immigration Law Solicitor LinkedinDanielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
The new changes will begin to come into effect from 28th December 2017 and the majority of the changes to the Immigration Rules will take effect from 11th January 2018.
Change 1: Entry clearance in electronic format
The Government propose to commence issuing entry clearance in electronic form. This initially will be trialed with specified groups, with a view to the general introduction of entry clearance in an electronic form at a subsequent date. These changes relate to the Rules concerning the format in which the entry clearance will be issued and also to the documents that need to be presented to an Immigration Officer. Currently, the Immigration Rules require an entry clearance to be endorsed in a valid passport or other identity document. The amendment to the Rules will allow entry clearance to be issued both in electronic form and by endorsement in a valid passport or identity document.
Change 2: Tier 1 and Tier 2 of the Point Based System
Tier 1 of the points based system caters for high value migrants, and currently consists of four active categories. Tier1 (exceptional talent), Tier 1 (entrepreneur), Tier 1 (investor) and Tier 1 (graduate entrepreneur). It also includes Tier 1 (general) category, which was closed to new applicants in April 2011 but remains open for settlement applications until April 2018. The Tier 1 Post Study work category was closed in April 2012.
The Tier 1 (investor) category will have minor technical changes in relation to evidence of investment with national savings and investments. Investors who entered the category before 6th November 2014 may rely on the un-mortgaged portion of their main home. Changes are being made to these provisions to clarify that the property must be the applicant’s main home. Where the property is co-owned in a tenancy in common, the investor’s share and only the investor’s share may count.
With regard to the Tier 1 (entrepreneur), the transition arrangements relating to the job creation requirements for applicants who entered the category before 6th April 2014 is currently set in the published guidance and is being incorporated into the Immigration Rules. In the future, applicants will also be asked to confirm the paid hours of the employees in jobs they have created, as well as the hourly rate to reduce the possibility of calculation errors. An amendment is being made to the requirement relating to real time, full payment submissions, to reflect the fact that these documents do not state the employment start date. An amendment has been made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the business, rather than the period before the jobs were created. Clarifications are being made to make clear where funds are currently held by another business which is not the business the applicant is using to score points.
To prevent recycling funds between applicants, a change is being made that applicants cannot rely on funds or investments that have been provided by another Tier 1 Entrepreneur migrant, or that migrant’s business or close family members. Who is considered to be a close family member will depend on the facts in individual applications.
Clarification is being made to the Rule which excludes buying the business from its previous owners from being considered as a qualifying investment to clarify that this means buying any business from its previous owner.
Changes relating to Tier 2 of the points based system includes flexibility which is being introduced to enable students to apply to switch to Tier 2 after their studies, as soon as they have completed their course. Exemptions from the residence labour market test are being added for posts to be held by researcher applicants or recipients of supplementary research awards and fellowships. Pay rates for health sector workers are being brought into line with pay skills in England and provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice. The provision that is currently set out in the sponsor guidance is being incorporated which will restrict how far a migrant’s start date may be put back before it becomes prohibitively changed.
Change 3: Changes to settlement
With regard to indefinite leave to remain in work categories, the requirement to have had absence from the UK or no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of the points based systems migrants. To ensure that this requirement does not have a retrospective affect, only absences from the UK during periods of leave granted under the Rules in place from 11th January 2018 will count towards the 180 days. The maximum 180 days requirements is waived for absences when the applicant has assisted with the Ebola crisis in West Africa.
An amendment is being made so that Tier 2 migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement.
Change 4: Changes to short term study
The short term study route is used to study in the UK for up to six months. The definition of a state maintained school is being removed to avoid duplication and the definition of a course within STS is being provided to give clarity that more than one programme of study can be undertaken on the STS route, as long as they are completed within the validity of the visa period. The minimum age requirement within STS is being reduced from 18 to 16 to allow those aged 16 and over to apply for longer English courses and to ensure a genuine students route is supplied consistently across the student visa categories. The Higher Education Funding Council for England is being added to the list of bodies that can provide institutional inspections. ST students are not entitled to take part in any type of work either paid or unpaid.
Change 5: Changes to Tier 4 of the points based system
The Tier 4 points based system is the route used by non-EA nationals wishing to study in the UK. Tier 4 is comprised of two categories, Tier 4 General and Tier 4 Child. The Rules on academic progression are being updated to allow students to apply for leave to remain from within the UK to complete the work placement or study abroad programme. A clarification is being made within the table specifying maintenance requirements for Tier 4 General students to make clear which requirements are relevant to students to study in London and which to students who study outside London. The maintenance requirements for Tier 4 General and Tier 4 Child students are being aligned where applicants are applying to study at residential and independent schools. Work rights for dependents of Tier 4 students are being updated to ensure that these remain. If the relevant main Tier 4 applicant is applying or being granted leave to study the same course for which they have previously been granted leave of 12 months or more as a Tier 4 General student. Amendments are being made, so that the Tier 4 students studying part time courses will not be able to bring dependents to the UK.