What primary and secondary legislation governs immigration in your jurisdiction?
UK immigration law is derived from a number of sources, including UK primary and secondary legislation, the Immigration Rules, Home Office policy guidance, European law and international human rights law and refugee law.
Ultimately, the basis for UK immigration law is the Immigration Act 1971. There have been many amendments to this Act, with numerous acts and statutory instruments made under them being elaborated upon. The intention of the amendments has been to clarify the framework of immigration law; for example, by including criminal offences relating to immigration, and the introduction of Biometric Residence Permits. A further significant set of amendments is set out in the Immigration Act 2016, whereby substantial changes to the way in which immigration decisions can be challenged were introduced.
Further, the Immigration Rules are not delegated legislation and over the years have become mandatory requirements as opposed to providing guidance to decision makers on the use of their discretion. Statement of Changes, when issued, outline proposed changes to the Immigration Rules. These must be laid before Parliament and will take effect as set out in the statement unless the entire statement is withdrawn by resolution of the House.
In the majority of non-EU cases, the first reference point will be the Immigration Rules and the associated policy guidance issued by the Home Office relating to the category of entry or stay. Policy guidance is guidance that is issued either by the Home Office to help decision makers with the decision-making process, or to the applicants themselves. Policy guidance can be found on the UK visas and immigration pages of the gov.uk website.
Nationals of the European Economic Area (EEA) countries and Switzerland, and some of their family members, are subject to a separate immigration regime based upon the principle of free movement. EEA nationals have a right of entry or residence deriving from EU free movement law as enshrined in Council Directive 2004/38/EC (the Citizens’ Directive). There are other immigration rights that flow from EU law, such as those derived from the Turkish Association Agreement.
In summary, the following are the main sources of UK immigration law:
- the Immigration (European Economic Area) Regulations 2016;
- the Counter-Terrorism and Security Act 2015;
- the Legal Aid, Sentencing and Punishment of Offenders Act 2021, sections 134 and 140;
- the Borders, Citizenship and Immigration Act 2009;
- the Criminal Justice and Immigration Act 2008;
- the UK Borders Act 2007;
- the Immigration, Asylum and Nationality Act 2006;
- the Asylum and Immigration (Treatment of Claimants etc) Act 2004;
- the Nationality, Immigration and Asylum Act 2002;
- the Immigration and Asylum Act 1999;
- the Asylum and Immigration Act 1996;
- the British Nationality Act 1981;
- the Immigration Act 1971; and
- the Immigration Act 2016.
Has your jurisdiction concluded any international agreements affecting immigration (eg, free trade agreements or free movement accords)?
As an EU member state, the UK has transposed the right of entry or residence of nationals (and qualifying family members) of the EEA and Switzerland as contained in the Citizens’ Directive, into domestic legislation by virtue of the Immigration (European Economic Area) Regulations 2016. The European Community Association Agreement (ECAA) also permits Turkish nationals to establish themselves as workers or in a business in the UK. It allows them to attain residency rights in the UK, whereby the old 1973 provisions apply to all Turkish EC Association Agreement applications, making the application process more flexible. Most recently, however, the Home Office introduced new Immigration Rules to enable Turkish nationals who are in the UK as either ECAA business persons or ECAA workers, as well as their family members, to apply for indefinite leave to remain (ILR), whereby in March 2018, the ECAA ILR policy, which operated outside the Immigration Rules, was withdrawn.
Acknowledging that there are also agreements under international law that protect certain categories of individuals and work, the UK introduced the international agreement category by virtue of the Tier 5 Government Authorised Exchange scheme. The international agreement category is for people coming to the UK under contract to do work covered under international law. Work covered by this category includes:
- the General Agreement on Trade in Services;
- similar agreements between the UK and another country;
- employees of overseas governments and international organisations; and
- private servants in diplomatic households.
Which government authorities regulate immigration and what is the extent of their enforcement powers? Can the decisions of these authorities be appealed?
The government department responsible for all aspects of controlling the UK border, and entry and stay of foreign nationals who require immigration permission to enter and remain in the UK, is the Home Office. Any decision to grant or refuse leave to enter, entry clearance or leave to remain is made by the Home Office on behalf of the Secretary of State for the Home Department.
The Home Office has a number of operational areas and teams, including:
- UK Border Force: management of applications for leave to enter at the border and customs functions;
- UK Visas and Immigration: based both in the UK and overseas, and responsible for the consideration of applications for entry clearance and leave to remain, asylum applications, appeals and points-based system sponsor management;
- Immigration Enforcement: work with partners across law enforcement, the wider public sector and the private sector, to keep borders and citizens safe by encouraging compliance with immigration laws and preventing abuse;
- Her Majesty’s Passport Office: responsible for the issuance of British passports, including renewals, new passports and replacement passports; and
- Policy: responsible for developing policies and designing and delivering a successful post-Brexit immigration policy and an effective migration policy across the UK.
Some functions of immigration control are the responsibility of the police, such as the registration of foreign nationals for whom this is a condition of stay. Some enforcement and compliance obligations have also been outsourced; for example, to employers and educational institutions in the UK who are registered as sponsors under Tiers 2, 4 and 5 of the points-based system. As part of their sponsor licence duties, the Home Office requires them to undertake some immigration-compliance duties. This includes, for example, reporting to the Home Office when sponsored migrants leave their employment prematurely, or do not arrive for work. Such reports can lead directly to enforcement activity against the migrant about whom the report is made.
The immigration control functions of the Home Office are overseen by an Independent Chief Inspector of Borders and Immigration who is independent from government. The Independent Chief Inspector of Borders and Immigration carries out periodic inspections of offices and facilities with responsibility for immigration control functions in the UK and abroad, and prepares reports on operational areas, such as efficiency, quality of decision making, the complaints process, use of enforcement powers and meeting commitments in relation to discrimination law.
It is not possible to appeal against a decision on every type of visa application. Appeal rights depend on the type of application and when it was submitted. For example, an appeal to the First-tier Tribunal (Immigration and Asylum Chamber) might be possible if the Home Office has:
- refused a protection claim (also known as ‘asylum claim’ or ‘humanitarian protection’);
- refused a human rights claim;
- made a decision under the EEA Regulations; for example, the Home Office has decided to deport, or refused to issue a residence document to, a foreign citizen;
- decided to revoke protection status; or
- decided to revoke British citizenship.
An appeal to the Tribunal about a Home Office decision on an application submitted before 6 April 2015 is also possible.
The Tribunal is independent of government, whereby a qualified judge will listen to both sides of the argument before making a decision. In some instances, it may also be possible to ask the Home Office for an administrative review if the type of application does not carry a right of appeal.Government policy
In broad terms what is your government’s policy towards business immigration?
The UK policy towards immigration distinguishes between EEA and Swiss nationals and non-EEA nationals.
EEA and Swiss nationals currently have the right to work in the UK, with no need to apply for entry clearance or leave to remain (a visa). An annual cap of 20,700 has been set on the number of non-EEA migrants entering the UK for work under the Tier 2 route, which affects non-EEA nationals who have been offered a job by a company based in the UK. This cap does not apply to individuals earning £159,600 or more, individuals who are already in the UK and wish to extend their immigration permission in a permissible category (unless the individual is in the UK as a Tier 4 partner) or those coming in under the Tier 2 (Intra-Company Transfer (ICT)) subcategory.
A number of other measures have also been introduced by the UK government to curb immigration into the UK, including the introduction of a mandatory 12-month cooling-off period outside the UK for some Tier 2 migrants and restrictions on in-country switching between categories.
In what circumstances is a visa necessary for short-term travellers? How are short-term visas obtained?
A short-term visa would be necessary for someone who works abroad but who intends to visit the UK for short periods of time in order to transact business on their or their employer’s behalf. Note that nationals of certain countries (known as ‘visa nationals’) are required to obtain business visit visas in order to enter the UK for this purpose. Other non-visa nationals can enter the UK and present themselves to an immigration officer at their port of arrival. It is important to check whether an individual requires a visa before travelling to the UK. Short-term visas can be obtained by making a business visitor visa application to a UK diplomatic post in the individual’s country of origin or legal residence. It is important to note that the need to obtain a visa for the UK is determined by the activity that the individual is undertaking and not the duration of the visit. As such, if an individual is undertaking ‘productive work’ beyond that of business meetings, a work permit will be required, irrespective of the duration of his or her visit to the UK.Restrictions
What are the main restrictions on a business visitor?
A business visitor cannot undertake work activities while in the UK. There is a list of permissible activities that a business visitor is allowed to undertake, which includes attending meetings, interviews, conferences, one-off training sessions and conducting site visits. Note that this is not an exhaustive list. More recently, the visitor rules have been expanded and business visitors may undertake recreational study for up to 30 days as long as this is not the main reason for the visit.
Business visitors can remain in the UK for a maximum of 180 days at any one time providing the expiry date on their visa allows them to do so. Frequent business visitors can be issued with business visitor visas for two, five or 10 years. However, business visitors must not spend more than six months in the UK in any rolling 12-month period.
A further restriction is that business visitors should not receive their salary from a UK source, although they can receive reasonable expenses to cover the cost of travel and subsistence. Note that the only time a salary from a UK source is permissible is if a multinational company administers their entire payroll from the UK.Short-term training
Is work authorisation or immigration permission needed to give or receive short-term training?
An individual may require immigration permission to give or receive short-term training. Depending upon the specific circumstances of the individual or the type of training, or both, it may be possible to qualify as a business visitor. In the event that the business visitor criteria are not met, the individual would be required to apply under a suitable Tier 2 category.Transit
Are transit visas required to travel through your country? How are these obtained? Are they only required for certain nationals?
Transit visas are required in certain circumstances for specific nationals. If an individual from one of the specified countries is staying in the UK for up to 48 hours before continuing his or her journey to another country, he or she will need to apply for a visitor-in-transit visa. If the individual wishes to stay for longer than 48 hours, he or she will need to apply for a visitor visa.
Certain nationals who wish to transit through the UK will require direct airside transit visas. These visas are valid for up to 24 hours and individuals who have been granted this visa do not enter the UK nor do they pass through immigration control. Individuals should check the relevant list of nationalities to verify if they are required to obtain a direct airside transit visa before transiting through the UK.Visa waivers and fast-track entry
Are any visa waiver or fast-track entry programmes available?
There are currently no visa waivers or fast-track entry programmes available that enable non-EEA nationals to work in the UK. The processing times for certain types of visa applications can, however, be fast tracked by using priority or super priority services available (at additional cost). This means that the application processing times, once applications are received by the government authorities, can be reduced from, for example, 15 working days to 24 hours (super priority service) assuming that all the eligibility criteria are met for the visa category under which an applicant is filing an application.
With regards to entry upon arrival in the UK, the UK government has expanded the ePassport gates, therefore facilitating faster entry into the UK. Only eligible passengers from Australia, Canada, Japan, Korea, New Zealand, Singapore and the United States are able to use the ePassport gates at UK airports and Brussels and Paris Eurostar terminals. Entry via ePassport gates does not negate the need for eligible passengers to obtain the appropriate UK work and immigration authorisation where this is required. British citizens can use ePassport gates and it is necessary for eligible passengers to hold a biometric passport. Those travelling with identity cards cannot use ePassport gates.
What are the main work and business permit categories used by companies to transfer skilled staff?
The most widely used immigration category is the Tier 2 (Skilled Workers) category. The Tier 2 (General) subcategory can be used to facilitate the employment of a new hire to the company and bring over employees who will be undertaking a permanent UK role that cannot be filled by a settled worker. The Tier 2 (ICT) subcategory allows the company, provided it is a multinational company, to temporarily move existing employees to the UK. The Tier 2 (ICT) subcategory is broken down into a number of specific subcategories: Long-term Staff and Graduate Trainee, which can be utilised depending on the business’s needs.Procedures
What are the procedures for obtaining these permissions? At what stage can work begin?
The Tier 2 category is the main category that UK companies use to employ skilled, non-EEA staff. In order to sponsor an individual under the Tier 2 category, an employer must first obtain a Tier 2 sponsor licence by applying to the Home Office. The Home Office is the UK government department that deals with all immigration applications. If the sponsor licence is granted, the employer will be able to issue certificates of sponsorship to their skilled migrant staff, providing they meet the relevant criteria. The migrant must then apply for entry clearance (if applying outside the UK) or leave to remain (if applying from inside the UK) in order to be granted the requisite immigration permission to work in the UK. All of these steps must be undertaken before the individual can commence work in the UK. Note that applicants applying from outside the UK will typically be subject to the monthly quota (known as restricted certificates of sponsorship).Period of stay
What are the general maximum (and minimum) periods of stay granted under the main categories for company transfers?
There is no minimum period of stay granted by the Home Office. The maximum duration a single visa can be issued under the most commonly used subcategories of Tier 2 is five years. This can be extended for up to nine years for staff earning £120,000 a year or more under the Tier 2 (ICT) subcategory and six years under the Tier 2 (General) subcategory. Other subcategories have different periods of leave attached, which vary in length depending on the category.Processing time
How long does it typically take to process the main categories?
Processing times for Tier 2 applications are dependent upon a number of factors including, but not limited to, the subcategory under which the individual is applying, the country in which he or she is filing, the complexity of the matter and the availability of the required documents needed to process the application. Standard processing times from the point of commencing the application process to receiving the visa are approximately two to 12 weeks.
Some countries (eg, the United States) operate a priority service whereby applications are usually processed within approximately five working days of the date the documents are received by the UK diplomatic post abroad. Note this does not include the time required to prepare the application up to the point of submission. The availability of priority processing services is dependent on the country and the application category. Over the past 12 months, the Home Office has extended its priority processing services through its commercial partners to include a broader range of priority packages in some jurisdictions.Staff benefits
Is it necessary to obtain any benefits or facilities for staff to secure a work permit?
It is not necessary for employers to provide their employees with any benefits or facilities in order to obtain working immigration permission. However, when making a Tier 2 application, an employer may wish to certify that they will maintain and accommodate an employee for the first month of their employment. If an employer chooses not to do this then the individual will need to provide evidence to the Home Office that he or she has the requisite funds to meet this requirement by way of personal bank account statements.Assessment criteria
Do the immigration authorities follow objective criteria, or do they exercise discretion according to subjective criteria?
The most commonly used immigration category is Tier 2, which is part of the points-based system. This immigration route is subject to a set of objective criteria, which means that all applications made under this category must meet the set points criteria and no discretion is permitted. However, it is possible in extremely exceptional circumstances to have applications approved that fall outside the UK Immigration Rules.High net worth individuals and investors
Is there a special route for high net worth individuals or investors?
Investors may apply under the recently introduced Innovator or Start-Up visa categories. The Innovator visa category replaces the Tier 1 (Entrepreneur) category and aims to allow individuals to invest in the UK by setting up or taking over and being actively involved in the running of a business. In order to qualify, an individual must have at least £50,000 in investment funds to set up a new business, in addition to meeting other mandatory qualifying criteria. The funds are not required if the business is already established and has been endorsed for an earlier visa.
The Start-up visa category replaced the Tier 1 (Graduate Entrepreneur) category on 29 March 2019. Non-EEA nationals can apply for a Start-up visa if they wish to set up a business in the UK and meet all the eligibility criteria, including being endorsed by an authorised body. It is not possible for individuals to apply for a Start-up visa in order to join or invest in a business that is already trading.
The Tier 1 (Investor) category is designed for high net worth individuals who wish to make a substantial financial investment in the UK. Individuals must be able to invest a minimum of £2 million in the UK, in addition to meeting other mandatory criteria. UK immigration regulations contain detailed requirements concerning the nature of the investment, and the criteria for eligibility; more stringent regulations were introduced in March 2019.
Is there a special route (including fast track) for high net worth individuals for a residence permission route into your jurisdiction?
Under the Tier 1 (Investor) category, an individual may be eligible to settle in the UK if he or she has been living in the UK for two, three or five years with enough assets and investments. The amount of time depends on the level of investment, which can be either cash or assets and a loan. Accelerated settlement status can be achieved by investing either £5 million (obtaining settlement after three years) or £10 million (obtaining settlement after two years). Applicants must invest the full relevant amount in UK government stocks and bonds, or shares in UK trading companies.
The Innovator visa category does not lead to settlement. In contrast, the Start-up visa category does lead to settlement after five years, subject to mandatory eligibility criteria being met.
Under the Tier 2 (General) route, individuals earning over £159,600 are exempt from the annual cap of certificates of sponsorship and the employer does not have to undertake the resident labour market test. Further, individuals who have held a Tier 2 (General) visa within the previous 12 months and wish to make a subsequent Tier 2 application from outside the UK after their initial visa has expired may have to spend 12 months outside the UK before they can re-apply to return to the UK under the Tier 2 category. However, if they are earning over £159,600, they are exempt from the 12-month cooling-off period.Highly skilled individuals
Is there a special route for highly skilled individuals?
The Tier 1 (Exceptional Talent) subcategory is for non-EEA migrants who are internationally recognised as world leaders or potential world-leading talent in the fields of science and the arts and wish to work in the UK. The subcategory is limited to 2,000 endorsements per year. These are divided between five designated ‘competent bodies’: the Royal Society (natural sciences and medical science research), Arts Council England, the British Academy (humanities and social sciences), the Royal Academy of Engineering and Tech City UK. Note that, should an applicant receive an endorsement, a visa is not automatically issued and the applicant must still meet further mandatory criteria.Ancestry and descent
Is there a special route for foreign nationals based on ancestry or descent?
Foreign nationals can apply for a UK ancestry visa if specific eligibility criteria are met; one of the key criteria to be met is that the applicant must prove that one of his or her grandparents was born in the UK. The applicant must demonstrate that the grandparent was born in one of the following circumstances:
- in the UK, including the Channel Islands and the Isle of Man;
- before 31 March 1922 in what is now Ireland; or
- on a UK-registered ship or aircraft.
It is possible for a foreign national to claim ancestry if either the applicant or the relevant parent was adopted or born within or outside marriage in the UK. It is not, however, possible to claim UK ancestry through step-parents. All eligibility criteria for the UK ancestry category need to be met by an applicant. A successful applicant for a UK ancestry visa will initially be granted leave to enter for a period of five years. It is possible to extend a UK ancestry visa and for a UK ancestry visa holder to apply for permanent residence (subject to all eligibility criteria being met).
Foreign nationals may also be eligible for British citizenship if they have a British parent. However, this is not an automatic right as the circumstances need to be carefully reviewed. British citizenship may not be an automatic right; for example, it depends on where and when an applicant was born, and the parent’s or parents’ circumstances.Minimum salary
Is there a minimum salary requirement for the main categories for company transfers?
There are minimum salary requirements applicable to the Tier 2 (ICT) subcategories. These vary depending on factors such as the length of the proposed UK assignment, type of role the non-EEA national will be undertaking in the UK and the subcategory under which he or she will be applying (typically £41,500 for the Long-term Staff subcategory and £23,000 for the Graduate Trainee subcategory). The Home Office publishes codes of practice that specify the minimum salary requirements for the role as well as minimum salary thresholds for the visa category. The employer should determine the relevant salary requirement for the sponsored worker by identifying the appropriate code that matches most closely to the proposed job. If the individual is working in the UK for less than 12 months, he or she will be assessed on his or her pro rata yearly earnings.Resident labour market test
Is there a quota system or resident labour market test?
There is a quota system in the UK that applies to non-EEA nationals who are being sponsored under the Tier 2 (General) subcategory. The quota (annual cap) applies to migrants applying for a visa from outside the UK and earning a salary of less than £159,600 or those applying from within the UK and switching from the Tier 4 (Partner) category. The current quota limit is 20,700. There is also a limit of 2,000 places per year for individuals applying under the Tier 1 (Exceptional Talent) category.
The UK also requires a resident labour market test (advertising) to be completed for Tier 2 (General) applications unless the role qualifies for an exemption. Employers must demonstrate that they have advertised the vacancy to the resident labour market for a minimum of 28 days via two specific mediums and have been unable to find a suitable settled worker. The medium of advertising is dependent on the salary for the role being advertised.Shortage occupations
Is there a special route for shortage occupations?
A Shortage Occupation List (SOL) exists in the UK; there is one list for the whole of the UK and an additional list for Scotland. The SOL was reviewed by the Migration Advisory Committee (MAC) in May 2019 after an extensive period of consultation. As the previous SOL was reviewed in 2013, significant changes were anticipated to ensure the list reflects and meets the needs of the UK labour market today. The recommendations see an expansion of the existing SOL from around 1 per cent of employment to around 9 per cent. Noteworthy recommendations include the addition of occupations in health, information technology and other science, technology, engineering and mathematics fields.
Roles that appear on the SOL benefit from a number of exemptions when sponsoring non-EEA nationals under the Tier 2 (General) category. For example, shortage occupation roles are not subject to the resident labour market test, and are exempt from the minimum income threshold applicable for settlement applications.
While the MAC’s findings are positive news for employers, it should be noted that these are only recommendations. The Home Office will need to accept the recommendations and implement these before they can take effect; it is not yet clear how quickly the MAC’s recommendations on the SOL will be taken forward.Other eligibility requirements
Are there any other main eligibility requirements to qualify for work permission in your jurisdiction?
The skill threshold for Tier 2 employment requires that a role is Regulated Qualifications Framework level 6 or above. Individuals must have worked for the company for at least 12 months directly prior to a transfer if they will be applying under the Tier 2 (ICT: Long-term Staff) subcategory, unless they are earning over £73,900. The Tier 2 (ICT: Graduate Trainee) subcategory requires that the individual must have been employed by the company for a minimum of three months prior to the transfer.
Under the Tier 2 (General) subcategory, individuals must be able to demonstrate their competence in the English language.
Individuals applying under both categories must demonstrate that they have sufficient funds to maintain and support themselves and any dependants in the first month without having to resort to public funds. Employers are also able to certify this requirement for any Tier 2 migrants.Third-party contractors
What is the process for third-party contractors to obtain work permission?
A third-party contractor may work on another company’s premises if there is a contract in place that enables the work to be undertaken. The sponsoring company must have full responsibility and control for the contractor’s duties, functions and output while they are working on the client company’s site.
If the contractor’s duties or responsibilities fall outside the scope of the contract between the client company and the sponsoring company, the contractor may have to be sponsored directly by the client company.Recognition of foreign qualifications
Is an equivalency assessment or recognition of skills and qualifications required to obtain immigration permission?
Individuals are no longer required to claim points for qualifications under the Tier 2 category. However, sponsors must be able to show that the individuals are suitably qualified for the role they are undertaking in the UK and they may still need to rely on their degree to meet the English language requirement.
In addition, individuals switching from the Tier 4 (Student/General) subcategory into the Tier 2 (General) subcategory within the UK will need to show that they have been awarded their degree, unless they are completing a PhD.
Individuals applying under the Innovator or Start-up visa categories will need to be endorsed by the relevant competent body as designated by the Home Office. Each of the competent bodies has their own requirements, which take into account the individual’s qualifications, skills, career history and potential contribution to the UK.
Extensions and variationsShort-term to long-term status
Can a short-term visa be converted in-country into longer-term authorisations? If so, what is the process?
Restrictions apply on switching immigration categories within the UK. Individuals with Tier 2 permission cannot convert their short-term visa into a longer-term visa while in the UK. Individuals must return to their country of origin or legal residence and apply at a UK diplomatic post for new immigration permission under a different category or subcategory.
Individuals who have held a Tier 2 (ICT: Long-term Staff) visa within the previous 12 months and who wish to make a further Tier 2 application will be subject to a 12-month cooling-off period outside the UK before they can re-apply. The exceptions to this are if the individual will be making an application under the Tier 2 (ICT: Long-term Staff) visa subcategory and will be earning a minimum salary of £120,000, if he or she is applying under Tier 2 (General) and will be earning a minimum salary of £159,600 or where he or she was only being sponsored under the Tier 2 category as recorded by the certificate of sponsorship for a period of three months or less.Long-term extension
Can long-term immigration permission be extended?
Broadly speaking, immigration permission can be extended, but the maximum period varies depending on the category.
Individuals issued with a certificate of sponsorship under the Tier 2 (ICT: Long-term Staff) subcategory can only extend their stay up to a maximum of five years (unless they are earning a salary of £120,000 or more, in which case the maximum is nine years). Once the maximum period is complete, the individual must leave the UK and cannot apply for further Tier 2 permission for a period of 12 months unless he or she is receiving a salary package of £120,000 or more.
Tier 2 (General) migrants can extend their leave up to a maximum of six years in total and may be eligible to apply for ILR in the UK (settlement) after five years. If they do not qualify for settlement, they must leave the UK once they have spent six years in the country. They will also be subject to the 12-month cooling-off period outside the UK, unless they are earning a salary of £159,600 or more.Exit and re-entry
What are the rules on and implications of exit and re-entry for work permits?
As a general rule, individuals are able to exit and re-enter the UK until the expiry of their visa. However, if individuals will be based primarily outside the UK, they should apply for a multiple-entry visa.
If an individual remains outside the UK for a continuous period of more than two years, his or her immigration permission may automatically lapse. Further, individuals should note that if they eventually wish to apply for settlement in the UK or UK citizenship, absences outside the UK may have an effect on their eligibility for any such application and should therefore be monitored.Permanent residency and citizenship
How can immigrants qualify for permanent residency or citizenship?
Permanent residency in the UK is referred to as settlement or ILR. If an individual is in a category that permits settlement, and provided he or she meets the requirements in place at the time of application, he or she will usually be able to apply after a five-year residence period. Individuals under the Tier 1 (Investor) category may be eligible to apply for settlement after two or three years if certain criteria are met. Note that certain Tier 2 (ICT) migrants who submitted their entry clearance application after 6 April 2010 are not eligible for settlement after five years of continuous residence in the UK but may be eligible for settlement after 10 years. They will be required to meet the eligibility requirements for this category at the time of application.
A migrant’s absences from the UK may affect his or her ability to apply for settlement. During the five-year residence period in the UK, there must be no more than 180 days’ absences in any rolling 12-month period, unless there are exceptional circumstances. Settlement status can lapse if an individual remains outside the UK for a continuous period of more than two years.
Individuals must usually have held settled status for at least one year before being able to apply for citizenship. Note that the residency requirements for settlement and citizenship are different.
EU nationals automatically acquire the right of permanent residence in the UK if they have lived in the UK legally for a continuous period of five years. Once an EU national has fulfilled this requirement, he or she can apply for a permanent residence document subject to meeting all the eligibility criteria. A permanent residence confirms an EU national’s right to reside in the UK permanently without any conditions. Although a permanent residence document is not mandatory, in light of Brexit, the Home Office has issued guidance for EU nationals for both a deal and no-deal scenario.
On 30 March 2019, the Home Office rolled out the EU Settlement Scheme (the Scheme). The Scheme is a new application process for EU nationals that acts in place of the existing system of applying for permanent residence. Through the Scheme, individuals will be able to apply for settled status or pre-settled status, depending on whether they have spent five years or less than five years in the UK. The Scheme has been available to holders of valid EU passports since 21 January 2019; whereas it has been available to citizens of Switzerland, Iceland, Liechtenstein and Norway since its full roll-out on 30 March 2019.
Settled status means that an individual can stay in the UK permanently. To be eligible, the individual usually needs to have not been absent from the UK for six months out of any 12 months for five consecutive years. Pre-settled status means that an individual can stay in the UK for the next five years. The deadlines for applying for settled status or pre-settled status will depend on whether the UK leaves the EU with a deal or no deal. In a deal scenario, EU nationals must register under the Scheme by 30 June 2021, and in a no-deal scenario, EU nationals must register under the Scheme by 31 December 2020.
Eligibility for applying under the Scheme will depend on when the EU national (and any qualifying family members) started residing in the UK, and whether the UK leaves the EU under a deal or no-deal scenario.End of employment
Must immigration permission be cancelled at the end of employment in your jurisdiction?
If an individual is sponsored under Tier 2 or the former work permit scheme and the individual resigns, is dismissed or made redundant, or his or her assignment ends earlier than anticipated, the sponsoring organisation must notify the Home Office that the individual is no longer being sponsored. If an individual has more than 60 days remaining on his or her current visa, the Home Office will usually curtail his or her permission to 60 days, and if the individual wishes to remain in the UK, he or she will be required to make a new visa application before that date to extend his or her stay. However, if the assignment ends in line with his or her visa, no notification is required. When and how the notification must be made will be dependent upon the type of sponsorship the individual holds.Employee restrictions
Are there any specific restrictions on a holder of employment permission?
Under Tier 2, an individual is only permitted to work in the UK in the role specified on the certificate of sponsorship (work permit) for the sponsoring organisation.
However, he or she may also:
- undertake voluntary work in any sector;
- undertake a course of study provided it does not interfere with the job he or she has been sponsored to do in the UK; or
- take an extra job in the same sector at the same level as that specified on the certificate of sponsorship provided he or she does not work more than 20 hours per week in his or her secondary employment.
If an individual with Tier 2 permission wishes to significantly change his or her role or change employer in the UK, he or she must submit a new application and obtain new immigration permission before commencing in the new role or with the new employer.
Other restrictions include a prohibition on migrants claiming public funds while in the UK and a requirement that certain nationals register their status with the police if they are granted UK immigration permission for more than six months.
Who qualifies as a dependant?
The following people qualify as dependants:
- partners, including spouses, civil partners, unmarried partners or same-sex partners; and
- children, including adoptive children, under the age of 18 years. Children who are already in the UK as dependants may extend their immigration permission beyond 18 years of age in line with the main applicant, provided they remain financially and emotionally dependent on the main applicant and meet certain requirements.
Are dependants automatically allowed to work or attend school?
Under the Tier 2 category, dependants are permitted to work. However, they are not allowed to work as a doctor or dentist in training.
It is compulsory for children between the ages of five and 16 to be in full-time education, regardless of their immigration status. Dependants can also attend further education colleges, sixth-form colleges and universities as long as they have the required qualifications (if necessary) and fees are paid (where applicable).Access to social benefits
What social benefits are dependants entitled to?
Dependants must show that they are able to maintain and accommodate themselves for the duration of their stay in the UK without relying upon public funds.
As part of the application process, migrants pay the immigration health surcharge and, as such, will be able to receive healthcare from the National Health Service (NHS). Immigration applications can be refused, however, if an individual has previously incurred NHS charges that remain unpaid (if treatment was received without a suitable visa status).
Other requirements, restrictions and penaltiesCriminal convictions
Are prior criminal convictions a barrier to obtaining immigration permission?
Applications for entry clearance or leave to remain in the UK can be refused if the applicant has been convicted of a criminal offence, particularly where individuals have been sentenced to a period of imprisonment of 12 months or more.
For EEA citizens seeking entry to the UK, under current legislation, previous criminal convictions alone cannot constitute sufficient grounds for refusal and exclusion can only be based on the grounds of public policy, public security or public health.Penalties for non-compliance
What are the penalties for companies and individuals for non-compliance with immigration law? How are these applied in practice?
If an organisation is discovered to be employing workers illegally, it can be fined up to £20,000 per illegal worker and face reputational damage from any resulting publicity. Any employer who was aware of the illegal working could also be imprisoned for up to five years, and fines can be unlimited.
Organisations could also have their sponsor licence rating downgraded or lose their licence in its entirety, which affects an organisation’s ability to employ new non-EEA migrants and to continue to employ any existing sponsored employees.
Individuals who are found to be non-compliant with UK immigration law may be refused entry or asked to leave the UK and, in the most serious of cases, an individual can be banned from entering the UK.Language requirements
Are there any minimum language requirements for migrants?
Under the Tier 2 category, an English language requirement must be met by all migrants applying under Tier 2 (General).
At present, applicants are able to show that they meet the English language requirement in one of three ways:
- being a national of a country recognised as being majority English-speaking;
- obtaining a specific score in an approved English language test; or
- obtaining a qualification that has been taught in English and is recognised by the UK national academic recognition information centre as being equivalent to a UK bachelor’s degree or above.
Is medical screening required to obtain immigration permission?
Non-EEA migrants applying for a UK visa for more than six months may be referred for a medical examination. In addition, individuals who state health or medical treatment as a reason for their visit to the UK, or those who appear not to be in good mental or physical health, can also be referred. The cost for the health screening varies depending on the country of origin and it is the migrant’s responsibility to meet this cost and failure to attend could result in the refusal of the visa application.
Individuals applying from particular countries are required to obtain a certificate to prove they are free from infectious pulmonary tuberculosis if they are applying for a visa that is more than six months in duration. They should consult the UK diplomatic post before travelling. These individuals must carry their medical certificate in their hand luggage to avoid being delayed on arrival to the UK. It is also possible for individuals to be chosen for medical screening on entry to the UK.
There is now an immigration health surcharge that must be paid by all non-EEA migrants who are applying to come to or remain in the UK for six months or more. There are some exemptions and the amount payable depends on the duration of the visa being applied for.Secondment
Is there a specific procedure for employees on secondment to a client site in your jurisdiction?
Under the Tier 2 category, a non-EEA employee may be seconded to a third-party client site by the UK sponsor. There must be a time-bound contract in place between the companies for the provision of goods or services. The sponsoring company must have full responsibility and control of the employee’s duties, functions and output while he or she is working on the client company’s site and it must continue to employ and pay the secondee. The employee must be seconded as an extra member of staff to assist with the delivery of the contract.
A non-EEA national may also be seconded to the UK under the business visitor rules and similar considerations will apply. In addition, the UK client company must have no direct corporate relationship with the overseas company.
Update and trendsKey developments of the past year
Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?Key developments of the past year40 Are there any emerging trends or hot topics in corporate immigration regulation in your jurisdiction?
Over the past 12 months, the UK immigration system has seen a number of process and procedural changes as the Home Office drives forward its digitalisation agenda. An increasing number of immigration applications now need to be filed online, while a number of services have been outsourced to commercial partners, including Sopra Steria, TLS and VFS, which has led to a change in how applications are submitted and processed, and the introduction of additional services including the expansion of premium package services to more jurisdictions.
Further, in December 2018, the government published its white paper outlining proposals for a new UK immigration system. The intention is to introduce a single, skills-based immigration system that will be based on the following principles:
- end of freedom of movement;
- skills and experience over nationality; and
- a single immigration system for all nationalities.
The proposals outlined in the white paper include:
- removal of the annual quota for Tier 2 (General) migrants;
- removal of the resident labour market test;
- minimum salary requirement of £30,000 per annum for skilled workers; and
- introduction of a 12-month visa for low skilled temporary workers.
The Home Office is currently engaging in an intensive 12-month programme of engagement with key stakeholders, including businesses, the public, public sector organisations and educational institutions. The intention is for the new immigration system to be introduced in a phased approach from January 2021.
In March 2019, the Home Office also brought forward some changes to the Immigration Rules with the intention of continuing to attract global talent, while also tightening control around the abuse of the immigration system. This has seen changes to the Tier 1 (Investor) visa category, and the abolishment of the Tier 1 (Graduate Entrepreneur) and Tier 1 (Entrepreneur) categories. In their place, the Home Office has introduced rules that provide skilled business people with access to two new visa routes to set up businesses in the UK. The Start-up visa route has opened to those starting a business for the first time in the UK, while the Innovator visa route is for more experienced business people who have funds to invest in their business.
Brexit continues to dominate the immigration agenda. Although the UK’s exit from the EU is currently pencilled in for 31 October 2019, it is not clear how this will happen. In the interim, the Home Office rolled out the Scheme in March 2019. The deadlines for applications under the Scheme will depend on whether or not the UK leaves with a deal or with no deal. Further, on 29 January 2019, the UK government outlined the no-deal arrangements for EU citizens. The then Home Secretary, Sajid Javid, confirmed the position for EU citizens (including the European Free Trade Association states of Switzerland, Norway, Iceland and Liechtenstein) coming to the UK after 29 March 2019 in the event of a no-deal Brexit.
EU citizens will be able to continue to come to the UK for visits, work or study, and they will be able to enter the UK as they do now. They will be able to enter and leave the UK using ePassport gates when travelling on a biometric passport for periods of up to three months for each trip. Non-EU family members will be required to apply for a family permit in advance of travel as they do currently.
EU citizens (and their family members) wishing to stay in the UK for longer than three months will need to apply for European Temporary Leave to Remain (ETLR), which will allow them to remain in the UK for three years. This will be an online application, and details of the process and applicable fees will be released in due course. ETLR will not lead to ILR (or settled status) and it will not be possible to switch into the Scheme, which only applies to arrivals prior to 29 March 2019. Any further leave beyond this three-year period will fall under the new skills-based future immigration system mentioned above.
In respect of right-to-work checks, the government has confirmed that it will not ask employers to start to distinguish between EU citizens who were resident before, or who arrived after, 29 March 2019. Therefore, all EU citizens will be able to work on the basis of their passport or national identity card until the new immigration system is introduced in 2021.