UK Border Agency to split into two new groups

On 26 March 2013 the Home Secretary, Theresa May, announced that the UK Border Agency will be split into two new groups between a visa body and a law enforcement body, and that it will be brought back under the control of Home Office ministers.  Additionally, there will be improvements to the IT systems across the whole immigration system as well as clarification of the policy and legal framework within which the system operates through an Immigration Bill during the next session of Parliament. 

In her statement, Ms May said: "By creating two entities instead of one, we will be able to create distinct cultures.  First, a high-volume service that makes high-quality decisions about who comes here, with a culture of customer satisfaction for businessmen and visitors who want to come here legally.  And second, an organisation that has law enforcement at its heart and gets tough on those who break our immigration laws."

The full impact on business and education sponsors will become apparent when further announcements are made.  To read the statement in full, please click here.

New changes to the immigration rules from 6 April 2013

The UK Border Agency has announced a number of changes to the Immigration Rules, which will come into force on 6 April 2013. 

To read a summary of the key changes, please click here.

To review the changes in full, please click here.

Revisions to the Tier 1 (Graduate Entrepreneur) route

The Tier 1 (Graduate Entrepreneur) category is being expanded to include talented MBA graduates from UK Higher Education Institutions (HEI) as well as overseas graduates whom UK Trade and Investment (UKTI) identify as the brightest and best entrepreneurs from overseas HEIs.

From 6 April 2013, there will be 2,000 places within the allocation limit - 1,000 places for MBA graduates of UK HEIs; 900 places for graduates in any subject from UK HEIs; and 100 places for elite global graduate entrepreneurs identified by UKTI.

This route will now open to overseas applicants, not just those who are in-country. 

A further change is being made to enable Tier 2 (General) migrants to switch into the category, as long as they have been working for their UK HEIs as post-doctoral researchers after graduation.

Recognising that the changes may cause confusion, the immigration team has put together a guide to the Tier 1 (Graduate Entrepreneur) route. Please click here to view this document.

Priority Postal Service and Post Office biometric enrolment process

Since October 2012, Penningtons Solicitors LLP has been participating in the UK Border Agency's Priority Postal Service pilot for leave to remain applications under Tier 2 of the Points-Based System.

The Priority Postal Service aimed to process Tier 2 applications within ten working days, a much shorter timeframe than the standard postal route, which can take up to six months. 

The pilot also introduced a 'document check and send' service so that supporting documents could be submitted, and biometric enrolment carried out, in a single transaction at a Post Office branch.

In addition to the introduction of the priority postal service pilot, the UK Border Agency has made improvements to the Post Office biometric enrolment process.  All applicants submitting an online or postal application will now be able to enrol their biometric information at one of the 105 participating Post Office branches across the UK.  A recent software upgrade now also allows those unable to give a complete set of fingerprints to provide a signature or mark, or to give a compliant facial image to register their details at a participating Post Office.

From Monday 8 April 2013, the UK Border Agency intends to end the pilot and open to the public a new charged process.  The proposed priority fee is £275.00 per applicant in addition to the standard application charge.  Revisions are also proposed to standard fee levels.  Applicants will continue to pay a £19.20 biometric enrolment fee at the Post Office.

Our clients have found that the Priority Postal Service pilot has been a much faster alternative to standard postal applications, whilst also being less expensive and more readily available than premium in-person appointments.

HTS criteria and the reporting of visa refusals examined by the Court of Appeal

On 8 March 2013, judgment was handed down in the latest Tier 4 case of R (WGGS Ltd trading as Western Governors Graduate School) v Secretary of State for the Home Department [2013] EWCA Civ 177 (click here).

The Court of Appeal considered a number of aspects of Highly Trusted Sponsor status (HTS), including reporting obligations, refusal rates, and the interpretation of guidance and policy objectives.

The appellant was a college which had been refused HTS on two grounds.  Firstly, 92 prospective students holding a CAS issued by the college had been refused entry clearance or leave to remain in the preceding 12 months, which resulted in a refusal rate of 21.5%.  Secondly, the college had failed to report to the UK Border Agency the non-enrolment of these 92 prospective students, which amounted to a breach of the reporting requirements as per the Tier 4 sponsor guidance.

In dismissing the appeal, the Court Of Appeal held:

  •  the UK Border Agency was entitled to apply a yardstick of 20% as a refusal rate (in this case, the   yardstick had been applied before the public announcement of the 20% rate; however, the court held   that it was nonetheless lawful);
  • the college’s argument that the 20% threshold should be lowered on account of the large number of   Indian applicants was rejected as it amounted to a recommendation for improvement of the UK   Border Agency scheme rather than demonstrating any illegality;
  • the UK Border Agency must have a clear and workable system.  A minute analysis of whether a   college can be blamed for any particular refusal is not practical.  It would be "quite impracticable for   the UK Border Agency to examine the circumstances of each applicant who is refused entry   clearance or leave to remain and then to determine whether the college was at fault through failing   to foresee the problems."
  •  the 20% yardstick is reasonable and makes allowances for those applicants who are unsuitable to   come to the UK as students but cannot reasonably be weeded out by college admissions staff.  

The judgment contains the clearest statement to date that sponsors are now assessing migrants in the way that Entry Clearance Officers (ECO) and the UK Border Agency used to assess them prior to the Points-Based System.  The court also confirmed that the “UK Border Agency […] reposes considerable trust in those colleges which it licenses to issue CAS.”  Other than in cases of procedural unfairness, the judgment is indicative of the high hurdles faced by sponsors in challenging sponsor licensing decisions.  In particular, sponsors whose refusal rate exceeds 20% for any reason at all, and by any small margin, are likely to find serious obstacles to obtaining or retaining HTS.