Winter has yet to wrestle its grip on summer. Something else that seems not to change is the Government’s propensity to issue changes to the Immigration Rules.
The latest statements of changes to the Rules (HC 1038 and HC 1039) which took effect on 6 April 2013, contain a large number of mainly administrative amendments clearing up anomalies in the previous version of the Rules. Nevertheless, they are also sprinkled with a couple of innovations which may have quite far-reaching effects. Below we examine some of the more salient points from this latest raft of changes.
Main changes for employers
There are a large number of changes to Tier 2 of the Points Based System, which are summarised below. Please contact Bircham Dyson Bell’s Immigration Team if you need more tailored advice.
- Resident Labour Market Test – the salary threshold for roles to be exempt from the Test has risen from £150,000 to £152,100. The salary threshold of £70,000 above which employers do not need to advertise a position with the Jobcentre has risen to £71,000 and such posts will now need to be advertised in two different media instead of just one. There are also changes to the media considered suitable to carry job advertisements. Employers should probably consult the new version of the Rules themselves to ensure that they are carrying out the Test correctly, and refer to us if in any doubt.
- Skilled Occupations – the UKBA has updated the codes of practice listing skilled occupations and the associated minimum salary levels. Employers will now need to use the updated classification when considering whether a job is suitably skilled and sufficiently remunerated to enable it to be sponsored.
- The 20,700 limit on restricted Tier 2 sponsorship certificates looks set to continue ‘indefinitely’. In practice the limit has not presented a problem thus far for employers as the limit is not being reached. Whether a recovering economy will place pressure on the Government to increase the limit remains to be seen.
- There will no longer be a ‘cooling off’ period, for Tier 2 migrants earning in excess of £152,100.
- Non-EEA employees transferring to the UK branch of their employer under the intra-company transfer route will also not be required to provide 12 months’ worth of payslips with their application for entry clearance, provided that they have actually been employed by the organisation for such a period.
- The salaries of Tier 2 migrants can now be reduced without the need for a fresh Tier 2 application, providing the salary level does not drop below the appropriate rate for the occupation or any applicable overall salary threshold.
- In the context of the Government’s new ‘employee-owner’ initiative, if applicants under Tier 2 (Intra-Company Transfer) and Tier 2 (General) exchange some of their UK employment rights for shares as an employee- owner, the value of those shares will not be included when assessing their pay.
Important changes for individuals
The Rules as they relate to visitor visas have been amended to prevent visitors from effectively living in the UK. We examine this point in detail in our comment section below.
Tier 1 migrants
The application process under the Exceptional Talent category is being split in two. From now on applicants will apply for endorsement by a Designated Competent Body. If successful, they will have three months to apply for entry clearance or leave to remain. According to the Government, the change is being made ‘to benefit applicants and increase uptake of the route. It means that applicants will no longer need to pay the full application fee without knowing whether the Designated Competent Body will grant the endorsement, and will no longer need to have their passports held by the UK Border Agency while the Designated Competent Body is making its assessment’.
Also, any Tier 2 migrant can now switch into the Exceptional Talent category of Tier 1.
The Graduate Entrepreneur route is being enlarged to include additional places for MBA graduates from UK universities and to accommodate UK Trade and Investment’s elite global graduate entrepreneur scheme.
Applications from overseas will also now be accepted. Hitherto applications have only been accepted from applicants in the UK.
Comment: When is a visit not a visit?
The length of time visitors are allowed to spend in the UK and the frequency with which the law permits them to make those visits has long been a grey area. The caselaw has until now suggested that visitors should be allowed to come and go essentially as they please. The frequency of visits should not be an issue of concern provided that the traveller remains a ‘genuine’ visitor. Furthermore, there is no minimum time that should elapse between visits. Absent any further indicators, someone who leaves a short gap between leaving the UK and returning does not necessarily stop being a genuine visitor.
The maximum period of stay in any one visit is usually six months, or until a visa expires if it has been granted for a shorter period. However, the general position, and the one expressed in UKBA guidance, is that a visitor would not normally spend more than 6 months out of 12 on a visit to the UK. Staying in excess of that period would tend to suggest that a visitor has strayed from the original purpose of their visit to the UK and that they have perhaps entered into a pattern of living here.
The new changes to the Rules state that in order to guard against abuse by those whose repeat visits amount to de facto residence visitors must not intend to live for extended periods in the United Kingdom through frequent or successive visits. It is unclear whether this is meant to tie in with the existing caselaw and the Government’s approach up to now to the length and frequency of visits. However, it arguably gives Entry Clearance Officers a measure of discretion as to what should constitute an ‘extended period’ and a ‘successive visit’.
Those who have been denied leave to enter or remain in the UK on a more permanent basis (for example, as dependent relatives) frequently have no option but to apply for frequent and successive visit visas and often come to the UK to be their family and friends for extended periods. How will the new wording of the Rules be interpreted by visa decision makers? Under the new wording it remains to be seen whether an Entry Clearance Officer could refuse an applicant if they have previously spent, for example, two periods of three months in the UK with a one month gap in between. The changes to the rules may simply serve to formalise the position set out above. However, it arguably allows room for a more restrictive approach.