What changes have been implemented?

The changes to the Immigration Rules mean that Tier 1 (General) migrants can no longer extend their leave to remain after 5 April 2015 or apply for indefinite leave to remain (“ILR”) in the UK after 5 April 2018.

When it opened in 2008, the Tier 1 (General) category was announced as a way to attract the best and the brightest to the UK. Shortly after their election, the current government set about closing the Tier 1 (General) route and it was completely closed to new applicants after April 2011.

Unfortunately it seems that being the best and the brightest is no longer quite good enough. The UK Government now favours migrants who are exceptionally talented and or exceptionally wealthy.

The scheme has been closed to new applicants since 2011, why does this matter?

Migrants who have had over 180 days of absences from the UK in the last year may not qualify for ILR in 2018 and may have to leave the UK. Over 20,000 Tier 1 (General) migrants applied for further leave to remain in 2012 alone, which indicates that these changes will impact a large number of people.

Who will this impact?

The biggest impact will be on professionals who travel frequently with their work, the very people the Home Office was trying to attract to the UK in the first place.  If the scheme was left open for only one additional year, migrants would have sufficient notice to reduce their absences and meet the requirements for ILR in the five years prior to the closure of the scheme.

Self – employed migrants need to be cautious when applying for further leave or ILR coming up to the closure of the category. Since the introduction of the genuine earnings test, it is no longer sufficient for migrants who draw a salary from their own business to simply provide their payslips and bank statements to evidence their earnings. The migrant now needs to satisfy the Home Office that the earnings are “genuine”, which can involve significantly more paperwork and in some instances an interview.

What are my options?

Unfortunately the options available to those who find themselves unable to apply for ILR are limited:

  • Tier 2 (General) - The migrant’s employer could sponsor him to remain in the UK under the Tier 2 (General) category. The employer would first need to obtain a sponsor licence and may need to complete the resident labour market test by advertising the position to the UK work force, to show they were unable to find a suitable employee for the role. Time spent under the Tier 1 (General) category can be combined with the Tier 2 (General) leave in order to meet the five year residence requirement for ILR.
  • Tier 1 (Entrepreneur) - If the migrant is self-employed, or wishes to be so and has £200,000 available to invest in a business in the UK, he may wish to consider the Tier 1(Entrepreneur) category.  However, he will need to complete a full five years in this category (unless eligible for accelerated settlement) before becoming eligible for ILR.
  • Tier 1 (Exceptional Talent) - If the migrant is lucky enough to be exceptionally talented, there is more good news. The immigration rules are being amended to allow Tier 1 (General) migrants to switch in to the Tier 1 (Exceptional Talent) category from within the UK and to combine the time spent in the UK under the previous category in order to meet the residence requirements for ILR. The criteria for the Tier 1(Exceptional Talent) category can be very difficult to meet however and candidates are expected to be leaders in their field or show promise of future exceptionalism.
  • Tier 1 (Investor) – Do you have a spare £1 million sitting in your account? Then you can switch in to the Tier 1(Investor) category. Like the Entrepreneur category, an additional five years will need to be completed unless the migrant is eligible for accelerated settlement.

What could the Home Office have done differently?

The timing of the changes has given migrants insufficient time to address any excess absences and limited options should they find themselves unable to apply for ILR by April 2018. The final closure of the scheme could have been implemented in a fairer manner, had a few small concessions been made:

  • If migrants could apply for ILR up to April 2019, this would give them sufficient notice to meet the residence requirements in the five years following the changes being announced;
  • A concession could be introduced so that employers do not have to complete the resident labour market test for Tier 1(General) migrants who switch in to the Tier 2(General) category, to make it easier for employees to find sponsorship;
  • Migrants could be permitted to combine leave spent under the Tier 1(Investor) or (Entrepreneur) categories  with their Tier 1 (General) leave so that they do not need to complete an additional five years in the UK; and
  • Tier 1(General) migrants who have already established their own business could be permitted to show that they have £50,000 instead of £200,000 available to invest, so that they could switch in to the Tier 1 (Entrepreneur) category more easily.

As the rules stand, it seems that migrants really do need to be at their best and brightest to find a solution to stay in the UK.