IMMIGRATION

On 7 March 2019, the Home Office published a new Statement of Changes, setting out new requirements, which will be incorporated into the consolidated version of the Immigration Rules over the period from 29 March 2019 until 1 August 2019.

Changes as of 29 March 2019

• Minor changes have been introduced to the definitions of “Employment as a Doctor in Training” and a “Professional sportsperson”

• Definitions of “Start-up migrant” and “Innovator” have been included in the “Introduction” part of the Rules

• Immigration requirements for leave to enter and remain or indefinite leave to remain in the UK for family members of Appendix W “Workers” will be added to Part 8 of the Rules

• Definition of “Prospective Entrepreneur” in Appendix V of the Immigration Rules will be changed. A visitor, who can show support from one or more endorsing bodies for the Start-Up or Innovator visa, would be able to enter the UK to secure funding from any legitimate source

• Appendix W will be inserted into the consolidated version of the Immigration Rules setting out the Immigration Requirements for the Start-up and Innovator visa categories. The changes to this Appendix will take place on 1 August 2019

Tier 1 (Entrepreneur) visa category

• Tier 1 (Entrepreneur) visa category will be closed to new applicants as of 29 March 2019. Those, who have a Tier 1 (Entrepreneur) visa, or have had leave under this visa category in the 12 months immediately before the date of application, may still apply for extension and/or settlement in the UK under this visa route

• Applicants will be allowed to extend their visa under the Tier 1 (Entrepreneur) Scheme if last been granted leave as a Tier 1 (Entrepreneur), a Tier 1 (Graduate Entrepreneur) or a Start-up migrant (having previously held leave as a Tier 1 (Graduate Entrepreneur) Migrant)

• Those applicants, who have entry clearance, leave to enter or remain as a Tier 1 (Graduate Entrepreneur) or a Start-up migrant, or have had such leave in the 12 months immediately before the date of application, would be required to show that they have at least £50,000 available to them or their business or have invested the funds in their business due to their activity

• Money made available from venture capital firms would no longer be accepted for the purpose of initial applications made under the Tier 1 (Entrepreneur) visa route

Tier 1 Investor visa category

• Changes are being made to Tier 1 (Investor) visa category to clarify that if the applicant has or has had leave as a Tier 1 (Investor) Migrant in the 12 months’ period immediately before the date of application, an entry clearance visa would be granted for a period of 2 years. In all other cases, an entry clearance visa application would be granted for a 3 years’ period

• Tier 1 (Investor) applicants, who were granted a visa under this route before 6 November 2014, would be able to rely on existing investments when submitting their extension applications before 6 April 2020 and when submitting their indefinite leave to remain applications before 6 April 2022

• Tier 1 (Investor) applicants, who submit their visa applications under this route after 29 March 2019 or the date of extension application is on or after 6 April 2023 or the date of settlement application is on or after 6 April 2025, would not be awarded points for investments in UK Government Bonds

• The banks would be required to carry out required due diligence checks and Know Your Customer enquiries in relation to each Tier 1 (Investor) applicant

• Under the Tier 1 (Investor) visa route, the 90 consecutive days’ requirement for money to be held under the applicant’s control is being extended to a 2 years’ period

• Under the Tier 1 (Investor) visa route qualifying investments can include pooled investments vehicles, if such vehicles receive funding from a UK or devoted government department or one of its agencies, and the applicant provides a letter from a financial institution regulated by the Financial Conduct Authority to confirm this

• Tier 1 (Investor) applicants, who submit their initial applications after 29 March 2019, and invest in active and trading UK registered companies, must ensure that such active and trading UK companies are registered with the Companies House, HMRC for corporation tax and PAYE, have accounts and a UK business bank account and have at least two UK-based employees who are not its directors

• Clarification is being made to confirm that “price of the investments” means the price the Tier 1 (Investor) applicant paid for the investments, not the face value

Changes as of 30 March 2019

• An entry clearance visa application granted under Appendix EU (Family Permit) may be revoked if an applicant is subject to an exclusion order, an exclusion decision or an Islands exclusion decision as defined in that Appendix

• In line with the changes to paragraph 34QA, under Appendix AR (EU) an application for an Administrative Review may be made from either inside or outside the UK

• General grounds for refusal set out in Part 9 of the Immigration Rules will not apply to applications made under Appendix EU or Appendix EU (Family Permit), except, if the United Kingdom leaves the European Union with a “no-deal” scenario, then, some of the paragraphs of Part 9 of the Rules would apply to migrants, who commit an offence after 29 March 2019

• Changes are being made to Appendix A “Attributes” to clarify how points for an allocation of a restricted COS certificate will be calculated

• The Immigration Requirements set out in paragraph EU2 of Appendix EU will come into force on 30 March 2019

• Appendix EU (Family Permit) will be inserted into the consolidated version of the Immigration Rules on 30 March 2019 (with two exceptions)

• Appropriate salary rates set out in Appendix J in the codes of practice of the Immigration Rules have been revised. New salary rates will come into force on 30 March 2019

Tier 1 (Exceptional Talent) visa category

• Switching from a “Start-up” migrant and an “Innovator” visa category to Tier 1 (Exceptional Talent) visa category will be allowed

• The relevant continuous period under the Tier 1 (Exceptional Talent or Promise) visa category could be combined with leave spent either as a Tier 1 Migrant (excluding as a Tier 1 (Graduate Entrepreneur) Migrant or Tier 1 (Post-Study Work) Migrant), as a Tier 2 Migrant (excluding as a Tier 2 (Intra-Company Transfer) Migrant) or as an Innovator

Tier 2 visa categories

• Applicants will be allowed to switch from a Start-up and an Innovator visa category to Tier 2 (General)

• Migrants will be allowed to switch to the Tier 2 (General) visa category within the UK upon completion of their degree program or no more than 3 months before the expected completion date

• Tier 2 (General) and Tier 2 (Minister of Religion) migrants will be allowed to include leave spent in the UK as an Innovator towards the required qualifying period for indefinite leave to remain

• The minimum threshold for a gross annual salary, when applying for settlement under the Tier 2 (General) visa route, will be set at £38,800, if the date of application is on or after 6 April 2023, and at £40,100 if the date of application is on or after 6 April 2024

Changes as of 6 April 2019

• Time spent under the Tier 4 visa category whilst being below the age of 18, will not count towards the time limits;

• Transitional arrangements in respect of job creation for those Tier 1 (Entrepreneur) applicants, who entered this route before 6 April 2014, will be deleted.

Changes as of 6 July 2019

• Tier 1 (Graduate Entrepreneur) visa category will be closed and being replaced by a Start-up visa category

Should you have any questions regarding the upcoming changes please do not hesitate to contact us.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

On 2 October 2018, the Home Secretary Sajid Javid proposed reforms to the requirements of becoming a British citizen which include toughening English Language requirements and changes to the Life in the UK test.

The Life in the UK test was introduced as one of the mandatory requirements for Naturalisation applications on 1 November 2005 and for Indefinite Leave to Remain (Settlement) applications on 2 April 2007 with a purpose to prove that an applicant has sufficient knowledge of British life and proficiency in the English Language to qualify as a ‘British citizen’. Essentially, this is a computerised test which consists of 24 questions covering topics about British values, history, traditions and everyday life.

The test has been continently criticised for containing factual errors or merely being a “bad pub quiz” with focus on culture and history rather than on liberal, democratic or social values that bind the UK society together.

In his speech, Sajid Javid addressed that “not only will there be a new values test, but we will also strengthen the English language requirements for all new citizens”.

The Home Secretary also announced that those individuals, who have been convicted of the most serious criminal offences, where it is in the public interest, will be deprived of the British citizenship.

If you are concerned that the proposed changes might affect your future UK immigration applications, please do not hesitate to contact our immigration team.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

The Immigration Rules recognise the ties which may have been formed by applicants with the United Kingdom over a lengthy period of residence and therefore allow them to apply for leave to remain in the UK on the basis of long residence.

10 years of continuous lawful residence

According to paragraph 276B of the Immigration Rules, those, who have lawfully resided in the UK for 10 consecutive years, might be eligible to apply for Indefinite Leave to Remain (“ILR”) in the UK.

Once 10 continuous years of lawful residence has been built up, there is no limit on the length of time afterwards when an application for an ILR can be submitted. The Home Office defines residence to be “lawful” if an applicant has had:

• Existing leave to enter or remain in the UK;

• Temporary admission, where leave to enter or remain is subsequently granted;

• An exemption from immigration control

“Residence” does not include time spent in the Republic of Ireland, Channel Islands or the Isle of Man even though they form part of the common travel area.

Applicant must not only meet the definition of lawful residence, but also face the complications imposed by requirement of the residence to be “continues”.

The definition of “continuous residence” is defined by paragraph 276A(a) of the Immigration Rules and essentially means that the applicant:

• Has valid visa when leaving the UK;

• Does not remain outside the UK for more than 6 months at any one time;

• Has valid visa on return to the UK;

• Has spent no more than 540 days outside the UK in total during the 10 years’ period

The long residence may be granted even if there are some gaps in the continuous residence:

• If any applications within the period under consideration were made out of time by no more than 28 calendar days where those gaps end before 24 November 2016;

• Where visa was granted in accordance with paragraph 39E of the Immigration Rules on or after 24 November 2016;

• Applicant must meet all other requirements of lawful residence

Applicants must also meet the Knowledge of Life and Language (“KOLL”) requirement, demonstrate that they are lawfully present in the UK on the date of application and there should be no reasons why granting leave is against the public good.

There is a possibility of applying for Indefinite Leave to Remain within 28 days before completing 10 years’ qualifying period. The application can be submitted on the same day at one of the Public Enquiry Offices or by post.

20 years of continuous residence

Before 9 July 2012 there was a rule which allowed migrants to apply for Indefinite Leave to Remain in the UK after 14 years of continuous residence in the UK, where the residence could be lawful, unlawful or mixture of both. On 9 July 2012 this rule was replaced with 20 years’ rule and if the Immigration Requirements of paragraph 276ADE(1)(iii) are met, an applicant would be granted limited leave to remain for 30 months’ period on the 10 years’ route towards settlement in the UK.

The requirements for limited leave to remain under the 20 years’ route are limited to:

• Not falling for refusal under the suitability grounds;

• Making a valid application for leave to remain;

• Having lived in the UK continuously for at least 20 years

Chan Neill lawyers have successfully assisted applicants with their long residence applications for many years now. Should you require an advice and/or assistance with your long residence application please do not hesitate to contact our immigration team.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

It has now been officially announced that from November 2018 UK Visas and Immigration (”UKVI”) is introducing a new application process for in-country applications.

According to the UKVI, the new service “will offer a range of benefits to customers, including a streamlined online journey for most application types, a modernised, digital and more secure process of submitting documentary evidence, fast and convenient self-service, more flexible on-demand, mobile application services and enhanced support for vulnerable customers.”

The UKVI’s new partner Sopra Steria will have their appointment booking tool live as of 2nd November 2018. During the period from 9th November to 30th November 2018, the majority of applicants will have a choice between applying using a new or existing visa application process. After 29th November 2018 Premium Service Centres will be closed.

As for the new system, having submitted an application online, applicants will be required to book an in-person appointment at one of the new UK visa centres in order to provide their documentary evidence and biometrics (fingerprints and facial photograph). The new UK VCAS centres will start opening from 9th November 2018.

Should you have any questions regarding the new submission process please do not hesitate to contact us.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

Today, the Migration Advisory Committee (“MAC”), established by the Home Office Secretary, Amber Rudd in July 2017 to examine the impact on the UK labour marker of the UK’s exit from the European Union, issued its final report regarding EEA migration in the UK.

The final MAC’s report made a number of important findings. In particular, attention has been drawn to the fact that according to an official report, EU workers should not have free movement into the UK after Brexit.

The official report states: “If the UK is in a position where it is deciding the main features of its immigration policy our recommendation is that there should be a less restrictive regime for higher-skilled workers than for lower-skilled workers in a system where there is no preference for EEA over non-EEA workers.”

The MAC, however, recommends abolishing the cap on the number of migrants granted Tier 2 (General) visas, which currently apply to skilled workers. In addition, they propose to extend the Tier 2 (General) Scheme to medium-skilled workers in order to avoid potential shortages that might occur after Brexit.

The proposal also includes maintaining existing salary threshold for all migrants in Tier 2, reviewing the Immigration Skills Charge and considering abolishing Resident Labour Market test.

Chan Neill Solicitors stay abreast with all recent news regarding Brexit. Should you have any questions or concerns, please do not hesitate to get in touch.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

On 6 April 2016, a new requirement was added to the already consolidated version of the Immigration Rules, giving the Home Office power to refuse an application for entry clearance, leave to enter or remain in the UK on the basis of a litigation debt owed to the Home Office.

“Litigation Debt is a debt owed to the Home Officer where the court or Tribunal has ordered another party to pay its legal cost.”

According to paragraphs 320(23) or V3.14A of the Immigration Rules, UK entry clearance or leave to enter visa application should normally be refused if there is a litigation debt owed to the Home Office. An application made under Appendix Armed Forces or Appendix FM should normally be considered under paragraph 10A or Part 2 of Appendix Armed Forces or paragraph S-EC.3.1 or S-LTR.4.4 of Appendix FM.

As for leave to remain applications, if there is any outstanding litigation cost owed to the Home Office, under paragraphs 322(13) and V3.14A of the Immigration Rules a UK visa application should normally be refused. This applies to all visa routes except of Appendix Armed Forces, Family and Private Life, where an application should be considered under paragraph 10A or Part 2 of Appendix Armed Forces or paragraph S-LTR.4.4 of Appendix FM.

It is important to note that debts of any size are considered by the Home Office to be a serious matter. Even though an application should not automatically be refused, individual circumstances of each case would be considered. Please also note that the Home Office decides an immigration application based on the evidence provided by the applicant and any information provided by the Litigation Finance Team relating to a litigation debt.

If you have a litigation debt owed to the Home Office and you intend to submit an application for leave to enter or remain in the UK, please do not hesitate to contact our immigration team for legal advice.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

Ahead of September 2018 allocation of restricted Certificates of Sponsorship (“CoS”), we would like to share the data regarding August 2018 allocation.

As a brief background, UK businesses seeking to hire non-EU workers from outside of the UK are required to apply for restricted CoS certificates via Sponsorship Management System (“SMS”) system before the 5th day of the month for an allocation on the 11th day of the same month. The annual limit is 20,700 certificates, which are divided into 12 monthly allocations.

Jobs that are on the Shortage Occupation List receive most points, followed by PhD level jobs and graduate roles recruited through a “milkround”.

According to the Home Office Policy Guidance, the application must score a minimum of 21 points to be valid. This was the case in November 2017; however, as of December 2017 for 8 consecutive months, the limit was oversubscribed, whereby the minimum points for restricted CoS allocated hovered around 50.

On 15 June 2018 the Home Office published a new Statement of Changes in which they confirmed that the changes were made to exempt doctors and nurses (who were accounted for 40% of all available places) from the Tier 2 General limit.

This welcomed change has resulted in the minimum points falling as low as to 21 in August 2018. At last, UK based companies have a fair chance of recruiting the brightest and the best talents from outside the UK.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

On 6 September 2018 the Home Secretary and Environment Secretary announced an introduction of a new agricultural worker visa scheme.

This pilot scheme will allow British fruit and vegetables farmers to employ 2,500 workers from outside the EU, who would allegedly alleviate labour shortages during peak production periods.

The new scheme will commence in spring 2019 and will run until the end of December 2020. The Home Secretary Sajid Javid said that the new scheme “will ensure farmers have access to the seasonal labour they need to remain productive and profitable during busy times of the year”.

According to The Guardian, the new scheme has been criticised by farmers. They welcomed the new scheme as “a step to the right direction”, however, it “barely addresses needs of British summer fruit and vegetable growers, who employ 60,000 workers a year."

Introduction of the new pilot scheme for British farmers shows how the Home Office may deal with labour shortages post Brexit.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

The Tier 1 Entrepreneur visa category is commonly used by individuals, who wish to set up, take over or join and being actively involved in running a UK business or businesses. The purpose for UK Government introducing this visa type was aimed at attracting wealthy individuals to the UK, thereby taking advantage of the related economic benefits and job creation for UK resident workers.

However, abuse of the Entrepreneur route has led to the Home Office toughening the Immigration Rules and, as one of the consequences, a “genuine entrepreneur test” was introduced. As a result, providing a business plan in support of an initial application became a mandatory requirement and an in-person interview nowadays is a common practice. Furthermore, the Home Office has imposed restrictions on students when switching to the Tier 1 Entrepreneur route.

With the refusal rate for entry clearance applications or leave to remain applications (when switching from a different visa category within the UK) soared, the Tier 1 Entrepreneur applicants started feeling greater pressure on getting their applications strong enough to succeed. Unfortunately, some applications are still being refused and the most common reasons for refusal are:

• Failure to provide required documentary evidence in the correct format;

• Submission of false representations or false documents;

• Lack of relevant work experience or irrelevant educational background for the chosen business industry;

• Poor performance during the Home Office interview

In case of a refusal, Tier 1 Entrepreneur applicants have right to an administrative review. If it fails, the decision can be challenged by pursuing judicial review via the Upper Tribunal.

If the application is successful, an entry clearance application is usually granted for a period of 3 years and 4 months. Applications for leave to remain, when switching from a different visa category, are granted for 3 years’ period.

Having an initial application being approved is only a start of the journey towards settlement under the Entrepreneur visa route. There are many technical aspects which should be taken into consideration when submitting applications for extension and indefinite leave to remain in the UK. With constantly changing immigration rules, it might be difficult for the Entrepreneur migrants to read and understand the immigration requirements and the Home Office guidance. It is very easy to misread the requirements, which might result in extension application being refused and the only remaining remedy would be a submission of an entry clearance application.

The most common reasons for Tier 1 Entrepreneur visa extension or settlement applications being refused are the failure to create two full time jobs and/or failure to provide required documentary evidence in the correct format.

Alike the initial application, the decision to refuse Entrepreneur extension application can be challenged via administrative review. It allows to raise any permitted case work error and, if an error, in fact, has been made, ask for the decision to be corrected.

The time limit to apply for administrative review is 14 calendar days from the date when the decision on the application is received. If the administrative review fails, the leave might still be protected by Section 3C; whereby, following unsuccessful administrative review, there might be an option of submission of a fresh application or switching to a different visa category.

With many years of experience in assisting Tier 1 Entrepreneur applicants, we believe that it is imperative to seek a legal assistance at every stage of the process. Should you require immigration advice regarding your Tier 1 Entrepreneur visa application or you need assistance with submitting an administrative review or judicial review, please do not hesitate to contact our solicitors and immigration advisers.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

Based on the recent enquires, we understand that there is some confusion as to whether it is possible to extend a Tier 2 ICT (Long-Term Staff) visa (“Tier 2 ICT”), switch to Tier 2 General visa category or/and subsequently obtain settlement in the UK.

We hope that this article would be helpful to understand the difference between Tier 2 ICT and Tier 2 General visa categories and what you can or cannot do.

In brief, Tier 2 General visa category caters to migrants who have a position on offer from a UK-based employer that cannot be filled by a settled worker. Tier 2 ICT visa category, however, is for existing employees of multinational organisations, who are required to be transferred by an overseas organisation to a UK entity, which is linked to that overseas organisation by common ownership or control.

Very often, multinational organisations obtain the UK Sponsorship License in both Tier 2 General and Tier 2 ICT categories and choose to bring employees over to the UK under the Tier 2 ICT rather than under the Tier 2 General route. There is no difference in the UKVI fees between these two visa categories; however, the immigration requirements for Tier 2 ICT migrants are slightly easier. The crucial difference between these two visa categories is ability to settle in the UK.

According to current UK Immigration Rules, only those migrants, who were granted Tier 2 ICT visa under the Rules in place before 6 April 2010, can switch to Tier 2 General visa category and/or settle in the UK.

Those migrants, who come to the UK under the Tier 2 ICT/Established Staff sub-category after 6 April 2010 and before 6 April 2011, are able to switch to Tier 2 General visa category but not settle in the UK.

Having applied under Tier 2 ICT visa category on or after 6 April 2011, it is not possible to switch to Tier 2 General visa category or settle in the UK.

Moreover, from 6 April 2011 Tier 2 ICT Long-Term Staff workers are limited to a maximum of 5 years visa with an extension permitted after this date only if a level of gross-annual package in the UK is £120,000 or higher. In which case, the maximum time an intra-company staff migrant under the long-term sub-category can remain in the UK is 9 years. There is no limit on a maximum time a Tier 2 ICT migrant can stay in the UK having entered the country under this route before 6 April 2011.

The immigration requirements are more straightforward for Tier 2 General applicants; whereby they are able to settle in the UK having spent 5 continuous years in the UK under this visa category. Having said that, that the maximum period a Tier 2 General migrant can remain in the UK is 6 years.

The good news is that it is still possible to apply for indefinite leave to remain under the long residence (10 years route) combining different visa categories including Tier 2 General and most importantly Tier 2 ICT.

So, what happens to Tier 2 ICT migrants who wish to remain in the UK after 5 years and whose gross annual salary isn’t £120,000? Here is where the frustration comes. Very often Tier 2 ICT migrants are not properly advised before entering the UK under the long-term sub-category of Tier 2 ICT route; hence, they would not be aware that after 5 years of continuous residence in the UK they would be required to go back to their country of permanent residence. Especially, it might affect children of Tier 2 ICT workers who might have been engaged in studies in the UK.

Here is some clarification. If a migrant has been sponsored under Tier 2 route and their leave has expired, they must leave the UK and wait 12 months (the “cooling-off period”) before applying again under any Tier 2 visa category. There are some exceptions to this rule. For example, the cooling-off period would not apply to someone, whose prospective gross annual package would be £159,600 or above under Tier 2 General category or £120,000 or higher under the Tier 2 ICT visa category.

As an alternative, Tier 2 migrants might consider switching to or applying from outside of the UK under any other visa categories.

Should you require any further clarification or an immigration advice on your particular case scenario, please do not hesitate to contact our immigration team.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.