There have been a number of recent changes to the Immigration Rules which are likely to be of relevance for UK HEIs.
Tier 2 – a significant change has been made to the Tier 2 (General) and Tier 2 (Intra-Company Transfer) categories with the introduction on 6 November 2014 of a strict ‘genuine vacancy’ test. The UKVI now has discretion to refuse applications where there are reasonable grounds to believe that:
- the job described does not genuinely exist;
- the job has been exaggerated to meet the required skills threshold;
- an applicant is not suitably qualified;
- that a job has been tailored to exclude resident workers.
This test is designed to address concerns that artificial vacancies were being created and UK workers were being denied potential employment opportunities. The change introduces an additional element of discretion for caseworkers when dealing with applications, something the points based system was originally designed to reduce when introduced in 2008. Sponsors need to exercise additional care when identifying roles that may be filled by migrant workers and when conducting the resident labour market test.
Visitor categories - recent changes have been made to the permissible activities for the Business Visitor category, including the introduction of a new permitted activity which is likely to be of particular interest to HEIs engaged in international projects and collaborations, namely:
to share knowledge or experience relevant to, or to advise on, an international project that is being led from the UK as an overseas scientist or researcher, provided the visitor remains paid and employed overseas and is not carrying out research in the United Kingdom.
The Home Office is also considering streamlining the number of visitor categories with the changes likely to be introduced in April 2015. These changes are likely to impact the Business Visitor, Academic Visitor and Permitted Pain Engagement categories, although it is expected that substantive changes to the rules will be minimal.
Tier 1 (Exceptional Talent) - applicants will now be granted leave to remain for a five year period, increased from the previous three year period. Amendments have also been made to the criteria applied by designated competent bodies with the purpose of introducing additional flexibility to the endorsement element of the application process. This may increase the prospect of this category being a viable option for some leading international academics.
Invalid applications – welcome additional flexibility has been introduced in circumstances where in-time applications submitted shortly before the expiry of current leave to remain are rejected as invalid due to matters outside the control of the migrant (eg, problems in relation payment processing). This sometimes results in the re-submitted application being out-of-time, meaning the migrant no longer has entitlement to continue working pending the outcome of the fresh application. From 6 November 2014, applicants who are served a notice of invalidity may be given the opportunity to rectify the error or omission within a 10 day period with the amended application being treated as being in-time.