UK immigration policy and visa options for EU and non-EU citizens are likely to soon be overhauled. UK employers relying on EU and non-EU workers should not take any chances.
Permanent Residence applications for European Economic Area (EEA) nationals and Indefinite Leave to Remain applications for non-EEA nationals are the best way of ensuring the future of employees from outside the UK.
Permanent Residence applications for European Economic Area (EEA) nationals
Since November 2015, all EEA citizens applying for UK citizenship must first apply to become a Permanent Resident of the UK.
Permanent Residence is just that – permanent. It does not have to be renewed and holders are therefore not vulnerable to the erratic changes of UK’s immigration policies.
In deportation cases, a Permanent Resident can only be deported if there are serious public policy or public security grounds.
Permanent Residence holders can also sponsor family members from third countries, even if they are no longer ‘qualified persons.’
To qualify as a Permanent Resident, EEA citizens must prove they have been living in the UK for at least five continuous years.
Continued residence means not being absent for a period of more than six months.
EEA nationals must have been validly exercising their treaty rights for the entire five-year period. This means they must have been a ‘qualified person’ for the entire period (i.e. a worker, self-employed, self-sufficient, student or jobseeker).
Family members, or in limited circumstances former family members, are also eligible to apply to become a Permanent Resident. Retirees and those who have ceased their ‘qualified person’ activity because of permanent incapacitation or self-employment in another EEA state are also eligible.
Fees and other requirements
The Permanent Residence application fee is £65 and the maximum processing time is six months.
For EEA citizens, there is no further requirement to take an English language or a Life in the UK test.
Indefinite Leave to Remain for non-EEA citizens
A review of UK immigration policy may also have a detrimental impact on UK visa holders from countries outside of the EEA.
Non-EEA citizens (including those on an EEA family visa) who demonstrate a commitment to the UK on a temporary visa are entitled to apply for an Indefinite Leave to Remain visa after a set period of time to preserve their rights.
This is similar to the Permanent Residence application that EEA citizens can make, but there some further restrictions that apply to applicants from outside of the EEA.
For holders of most types of visas the applicable time threshold is also five years. Applicants cannot have been absent from the UK for a period greater than six months in any year.
Tier 2 (General) visas are now only valid for a maximum of six years and are non-renewable. There is only a small window of 12 months where eligible holders may apply for settlement.
If the Tier 2 worker does not qualify for Indefinite Leave to Remain before the expiry of their temporary visa, they are subject to a 12-month ‘cooling off period’, during which they are unable to reside in the UK.
Fees and other requirements
Non-EEA visa holders are required to establish that their visa entitlements remain valid and have remained valid for the entire visa period.
Tier 2 workers, for example, must verify their continued employment. A partner visa holder is required to establish that he or she remains in a genuine, qualifying relationship and continues to meet the requisite financial criteria.
In most circumstances, the fee for Indefinite Leave to Remain is £1,875. The processing time is a maximum of six months.
English language test and Life in the UK Test
All non-EEA applicants aged 18-64 must also pass an English language test and an exam designed to test the applicant’s knowledge of British traditions and customs.
For the British Citizen test, or ‘Life in the UK’ test, applicants must score at least 75% or above to pass.
The test may be taken as many times as necessary but there is a fee for each test taken.
New requirements for Tier 2 Working Visas
Under recent Tier 2 Visa reforms, non-EEA workers on a Tier 2 (General) or (Sportsperson) visa must now earn £35,000 annually to qualify for settlement. Some occupations must demonstrate an even higher salary.
Between 2016 and 2020, this threshold will increase incrementally to £36,200, to reflect forecasted rises in salary rates.
When a Tier 2 visa holder makes an application for Indefinite Leave to Remain, an employer must confirm in writing that the person is being paid at least £35,000 per annum.
Additional earnings from overtime or a second job do not count towards the threshold.
The policy was announced in 2012 and applies from 6 April 2016 for any Tier 2 applications where the applicant arrived in the UK after April 2011.
The policy has been significantly criticised for unfairly discriminating against health, technology, charity, arts and creative workers.
According to the impact assessment conducted by the Home Office in 2012, it is estimated that 16% of Tier 2 settlement applications would be rejected under the new rules.
Certain PhD level positions, roles that feature (or have featured during the time the worker was sponsored) on the Tier 2 Shortage Occupation List, Tier 2 (minister of religion) and (intra-company transfer) visas are exempt from the rules.
The threshold does not apply to EEA residence.
Indefinite Leave to Remain and Permanent Residence applications are often viewed as simply a necessary stepping stone to naturalisation.
In these times of uncertainty, however, they are an effective way for foreign nationals to secure their rights in the UK, while providing much-needed certainty for their employers.