UK EU free movement

Successful outcome of appeal in relation to EU free movement law

Sterling & Law Associates LLP were successful in a very interesting appeal in the First-tier Tribunal in relation to EU free movement law.

The facts of the case were as follows:

The Appellant had applied for a Residence Card as the non-EEA family member of a British citizen under Regulation 9 of the 2006 EEA Regulations. While it was accepted that the hearing that the Appellant did not satisfy the conditions of Regulation 9, it was submitted that she had a derived right of residence in accordance with Article 45 of the Treaty of the Function of the EU (TFEU).

The Appellant’s British family member, while primarily resident in the UK, worked extensively overseas in the EU. It was therefore argued that he was exercising Treaty rights in the EU and, if the Appellant – who is the primary day-time career for his child – was refused a residence card, he would be unable to exercise Treaty rights by travelling to the EU for work.

Therefore, in line with Article 45 of the TFEU and the European Court of Justice case of Aisel v G Case C-457/12, the Tribunal allowed the appeal, noting that the Appellant is entitled to a Residence Card.

Frozen bank accounts uk

Home Office issues official guidance on freezing immigrants’ bank accounts

On 20 December 2017, the Home Office published a guidance for its officers on when to apply for a court order freezing the bank account of the illegal immigrants. The full text of the guidance is available online: Immigration Act 2014 Code of Practice: Freezing Orders (Bank Accounts Measures)

The purpose of this Code is to specify the factors the immigration caseworkers should consider when deciding whether to apply for a freezing order under section 40C(2) of the Immigration Act 2014 as amended by the Immigration Act 2016.

The Immigration Act 2016 includes measures to prevent known illegal migrants from operating banks accounts. To bring these measures into force the Immigration Act 2016 gives HM Treasury powers through secondary legislation regulations, which set out:

  • what type of accounts banks must check;
  • how frequently banks must check;
  • how banks must notify the Home Office about accounts held by illegal migrants, and what the notifications must contain;
  • how the Secretary of State for the Home Office will respond;
  • and how banks will respond regarding their compliance.

It also gives the Home Office powers to bring into effect a Code of Practice on orders to freeze accounts.

According to the guidance, the following factors, as referenced in paragraphs 26-33, should be taken into account when you consider whether to refer a case to Immigration Enforcement Officers for application of a freezing order:

Threshold: The Home Office will not usually consider applying for a freezing order if the level of funds in a person’s combined bank accounts is less than £1,000.

Harm:  A decision on whether to apply for a freezing order should take into account the level of harm which an individual is reasonably suspected to pose, and the risk involved.

Criminality: Any matches involving criminal activity should be referred to relevant Immigration Enforcement Officers. However, even in those cases where the offending has been serious it might not be appropriate to freeze a person’s account(s) if the offender will be leaving the country promptly at the end of their sentence under an early release scheme.

The Immigration Enforcement Officers will also consider the person’s previous record of immigration offending, level of co-operation with the immigration system, and whether any notable difficulty has been encountered in effecting their removal.

For expert advice and assistance in relation to your particular case and relevant immigration law requirements, please contact our immigration lawyers on 020 7822 8535 or via our online appointment booking form.

Tier 2 visa uk

New rules introduce right for settlement for Tier 2 (General) migrants with 60-day gaps between jobs

On 7 December 2017, the Home Office laid the Statement of Changes to the Immigration Rules HC309 which come into force from 2018.

A very important amendment has been made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.

According to the statement of changes, the following paragraph 245AAA(b) of the Immigration Rules is deleted:

(b) Except for periods when the applicant had leave as a Tier 1 (General) Migrant, a Tier 1 (Investor) Migrant, a Tier 1 (Entrepreneur) Migrant, a Tier 1 (Exceptional Talent) Migrant or a highly skilled migrant, the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor.

This change means that those sponsored Tier 2 migrants who had a break between jobs of more than 60 days could not apply for Indefinite Leave to Remain (settlement) after five years.

Under the current rules, a sponsored employee can only apply to renew Tier 2 (General) leave. However, the maximum period of leave under Tier 2 (General) is limited to a maximum of 6 years. Thus, migrants who had more than 60 days between jobs had no other choice than to leave the country after 6 years, and technically were deprived of a right to apply for Indefinite Leave to Remain.

This change shall take effect on 11 January 2018.

However, if an application has been made for entry clearance or leave to enter or remain before 11 January 2018, the application will be decided in accordance with the Immigration Rules in force on 10 January 2018.

For expert advice and assistance in relation to your settlement application and relevant immigration requirements, please contact our immigration lawyers on 020 7822 8535 or via our online appointment booking form.

EEA Refusal Appeal Sterling & Law Associates LLP

New Rules: Absences for Point-Based System (PBS) Dependants applying for Settlement

One of the most notable changes relates to the absences of the dependants of the PBS migrants (Tier 1, Tier 2, Tier 4 and Tier 5 visas).

The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants.

This crucial change will affect those partners applying for settlement whose leave was granted following an application made after 11 January 2018.

To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.

The maximum 180 days absences requirement is waived for absences when applicants have assisted with the Ebola crisis in West Africa. This provision is being widened to include assisting with any national or international humanitarian or environmental crisis.

For expert advice and assistance in relation to your settlement application and immigration requirements, please contact our immigration lawyers on 020 7822 8535 or via our online appointment booking form.

Brexit Downing Street

Update from the Prime Minister for EU citizens living in the UK

On 11 December 2017, Theresa May released a formal update for the EU nationals residing in the United Kingdom.

Full text of the update is quoted below.

“As Prime Minister of the United Kingdom, I am proud that more than three million EU citizens have chosen to make your homes and livelihoods here in our country. I greatly value the depth of the contributions you make – enriching every part of our economy, our society, our culture and our national life. I know our country would be poorer if you left and I want you to stay.

So from the very beginning of the UK’s negotiations to leave the European Union I have consistently said that protecting your rights – together with the rights of UK nationals living in EU countries – has been my first priority.

You made your decision to live here without any expectation that the UK would leave the EU. So I have said that I want you to be able carry on living your lives as before.

But I know that on an issue of such significance for you and your families, there has been an underlying anxiety which could only be addressed when the fine details of some very complex and technical issues had been worked through and the foundations for a formal agreement secured.

So I am delighted that in concluding the first phase of the negotiations that is exactly what we have achieved.

The details are set out in the Joint Report on progress published on Friday by the UK government and the European Commission.

When we leave the European Union, you will have your rights written into UK law. This will be done through the Withdrawal Agreement and Implementation Bill which we will bring forward after we have completed negotiations on the Withdrawal Agreement itself.

Your rights will then be enforced by UK courts. Where appropriate, our courts will pay due regard to relevant ECJ case law, and we have also agreed that for a period of eight years – where existing case law is not clear – our courts will be able to choose to ask the ECJ for an interpretation prior to reaching their own decision. So as we take back control of our laws, you can be confident not only that your rights will be protected in our courts, but that there will be a consistent interpretation of these rights in the UK and in the European Union.

We have agreed with the European Commission that we will introduce a new settled status scheme under UK law for EU citizens and their family members, covered by the Withdrawal Agreement.

If you already have five years of continuous residence in the UK at the point we leave the EU – on 29 March 2019 – you will be eligible for settled status. And if you have been here for less than five years you will be able to stay until you have reached the five year threshold.

As a result of the agreement we have reached in the negotiations, with settled status, your close family members will be free to join you here in the UK after we have left the EU. This includes existing spouses, unmarried partners, children, dependent parents and grandparents, as well as children born or adopted outside of the UK after 29 March 2019.

Your healthcare rights, pension and other benefit provisions will remain the same as they are today. This means that those of you who have paid into the UK system – and indeed UK nationals who have paid into the system of an EU Member State – can benefit from what you have put in and continue to benefit from existing co-ordination rules for future contributions.

We have also agreed to protect the rights of those who are in a cross-border situation at the point of our withdrawal and entitled to a UK European Health Insurance Card. This includes, for example, tourists for the duration of their stay, students for the duration of their course and UK nationals resident in another EU Member State.

The agreement we have reached includes reciprocal rules to protect existing decisions to recognise professional qualifications – for example for doctors and architects. And it also enables you to be absent from the UK for up to five years without losing your settled status – more than double the period allowed under current EU law.

There will be a transparent, smooth and streamlined process to enable you to apply for settled status from the second half of next year. It will cost no more than applying for a passport. And if you already have a valid permanent resident document you will be able to have your status converted to settled status free of charge.

We are also working closely with Switzerland and EEA Member States to ensure their citizens in the UK also benefit from these arrangements.

I have spent many hours discussing these issues with all of the other 27 EU leaders over the last eighteen months as well as with President Juncker, President Tusk and the EU’s Chief Negotiator Michel Barnier. I am confident that when the European Council meets later this week it will agree to proceed on this basis. And I will do everything I can to ensure that we do.

So right now, you do not have to do anything at all. You can look forward, safe in the knowledge that there is now a detailed agreement on the table in which the UK and the EU have set out how we intend to preserve your rights – as well as the rights of UK nationals living in EU countries. For we have ensured that these negotiations put people first. That is what I promised to do and that is what I will continue to do at every stage of this process.

I wish you and all your families a great Christmas and a very happy New Year.

Yours sincerely

Theresa May, Prime Minister”

 

Abstract disintegration Euro union and Britain (done in 3d rendering)

Home Office’s Official Update on EU Citizens’ Rights Agreement

On 8 December 2017, the Home Office circulated an update on the rights of the EU citizens in the UK and UK nationals in the EU after negotiations on the agreement on citizens’ rights between the UK and the EU Commission.

The full text of the official circular is quoted below.

“Since the outset of the negotiations, the Prime Minister has been clear that safeguarding the rights of people who have built their lives in the UK and EU was her first priority.

The agreement delivers that commitment and follows months of negotiations with the EU. It will help the millions of EU citizens who have made their lives in this country, as well as UK citizens living in the EU, plan for the future as valued members of UK society.

It means that EU citizens living lawfully in the UK and UK nationals living lawfully in the EU by 29 March 2019 will be able to stay and enjoy broadly the same rights and benefits as they do now.

The agreement includes that:

  • Close family members will be able to join after the UK has left the EU. This includes spouses, unmarried partners, children, grandchildren, dependent parents and grandparents. Children born or adopted outside of the UK after the 29 March 2019 will also be covered.
  • People will be able to be absent from the UK for up to five years without losing settled status, more than double the level of absence allowed under current EU law. There will be the same reciprocal protection for UK nationals living in the EU.
  • Professional qualifications (e.g. doctors and architects) will continue to be recognised where these are obtained before the date of the UK’s departure from the EU.
  • It will be easy to apply for settled status and there will be a full right of appeal.
  • Those EU citizens who already hold a valid Permanent Residence document will be able to have their status converted to settled status free of charge.

This agreement also provides certainty on healthcare, pensions and other benefits. It will mean that EU citizens who have paid into the UK system can benefit from what they’ve already put in and continue to benefit from existing coordination rules for future contributions. Those covered by the agreement will be able to continue to receive healthcare as they do now.

There will be a transparent, smooth and streamlined process to enable EU citizens to apply for settled status starting in the latter half of next year for two years after the UK leaves the EU – from 2018 to 2021.

You can read more about settled status and citizens’ rights here.

Home Office Brexit

 

We will keep you up to date with more details, including the cost, opening date of the scheme and documentation you are likely to need, in the first half of 2018. It will be much simpler and quicker than applying for Permanent Residence, so EU citizens do not need to do anything at this stage.

This page will be kept up to date with the latest information: Status of EU citizens in the UK: what you need to know.”

Brexit London Westminster Migrants

Changes in Immigration Rules Presented to Parliament on 7 December 2017 (HC 309)

On 7 December 2017, the Home Office presented Statement of changes to the immigration rules HC309 to the Parliament with explanatory memorandum providing a short overview of the changes.

The purpose of the main changes:

  • Take account of the future commencement of the immigration bail provisions in Schedule 10 to the Immigration Act 2016.
  • Provide for entry clearance to be issued electronically.
  • Allow standard and marriage/civil partnership visit visa holders to transit using the same visa.
  • Clarify and remove inconsistencies from the rules relating to indefinite leave to remain for main applicants and their dependants in work categories.
  • Double the number of available places in the Tier 1 (Exceptional Talent) category to 2,000, and allow accelerated settlement for certain applicants.
  • Consolidate and clarify the rules for Tier 1 (Entrepreneur) applicants.
  • Make new Tier 2 provisions for research positions and for students switching from Tier 4.

The changes come into effect from:

  • The changes to Appendix M set out in paragraph M1., and to Appendix N set out in paragraph N2. of the statement shall take effect on 28 December 2017.
  • The changes to Appendix G set out in paragraph G1. of the statement shall take effect on 1 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 1 January 2018, the application will be decided in accordance with the Immigration Rules in force on 31 December 2017.
  • The changes to Part 6A set out in paragraphs 6A.22 and 6A.23, to Appendix A set out in paragraphs A16. to A19., and to Appendix J set out in paragraphs J1. to J11. of the statement shall take effect on 11 January 2018. However, if an applicant has made an application for entry clearance or leave to remain using a Certificate of Sponsorship that was assigned to him by his Sponsor before 11 January 2018, the application will be decided in accordance with the rules in force on 10 January 2018.
  • The changes to Part 5 set out in paragraphs 5.13 to 5.15 and 5.18 to 5.19, to Part 7 set out in paragraphs 7.3 to 7.5 and 7.7, to Part 8 set out in paragraphs 8.20 and 8.36, and to Appendix Armed Forces set out in paragraph AF2. of the statement shall take effect on the commencement of Schedule 10 to the Immigration Act 2016.
  • The other changes set out in the statement shall take effect on 11 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 11 January 2018, the application will be decided in accordance with the Immigration Rules in force on 10 January 2018.

Key changes

Changes relating to electronic entry clearance

  • The Government proposes to commence issuing entry clearance in electronic form. This will initially be trialled with specified groups with a view to general introduction of entry clearance in electronic form at a subsequent date.
  • These changes relate to the rules concerning the format in which an entry clearance is to be issued; and also the documents that need to be presented to an immigration officer. Currently the Immigration Rules require an entry clearance to be endorsed in a valid passport or other identity document. The amendment to the rules will allow entry clearance to be issued both in an electronic form and by endorsement in a valid passport or identity document.
  • Applicants who hold an entry clearance issued in electronic form will not be required to present such an entry clearance to an Immigration Officer on arrival in the UK. The issue of such an entry clearance will be checked electronically.

Changes relating to visitors

  • Appendix 3 to Appendix V sets out the permitted activities for all visitors except transit visitors. The permitted activities do not allow visitors other than transit visitors to transit the UK, which means that, for example a person who requires a visa to visit the UK for business, tourism, to get married or for other visit purposes, must obtain a separate visa in order to transit the UK. The change introduced by these rules will enable visitors who hold a standard or marriage/civil partnership visit visa to transit the UK without the need to obtain a separate visa. Transit visas will still be available for transit only visits.
  • Appendix 3 to Appendix V also sets out the study that visitors are permitted to undertake in the UK. Appendix 3 is being changed to clarify that visitors are not permitted to study at an academy or a school maintained by a local authority.
  • Appendix 5 to Appendix V comprises a list of events that are Permit Free Festivals.
  • Permit Free Festivals are events that are assessed as contributing to the cultural heritage of the UK and at which performers can, exceptionally, be paid for their participation as visitors. Visitors cannot normally receive payment from a UK source for any permitted activities they undertake here. The list for 2017/18 has been updated to include the Africa Utopia festival.

Changes relating to Tier 1 of the Points-Based System

Tier 1 (Exceptional Talent)

  • The number of places is being doubled to 2,000. To ensure the places are allocated according to need, the additional 1,000 places will not be allocated between the Designated Competent Bodies (DCBs) at the start of each year. Instead they will form a pool of unallocated places which can be drawn on according to need on a first-come first-served basis by any DCBs which have used up their allocation.
  • Enabling current world leaders in their fields (those endorsed under a DCB’s “exceptional talent” criteria) to qualify for indefinite leave to remain in the UK after 3 years of continuous residence. This brings Tier 1 (Exceptional Talent) category into line with Tier 1 (Entrepreneur) and Tier 1 (Investor) categories, both of which currently offer similar accelerated settlement. Potential future leaders in their fields (those endorsed under a DCB’s “exceptional promise” criteria) will continue to qualify for settlement after 5 years of continuous residence.
  • Updates to the endorsement criteria used by the Royal Society, the British Academy and the Royal Academy of Engineering, at those DCBs’ request. These provide a simpler application process for applicants who hold specific peer-reviewed fellowships or who have been appointed to senior academic or research positions.
  • Minor changes to the criteria for endorsement by Arts Council England, at Arts Council England’s request.

Tier 1 (Entrepreneur)

In response to feedback, the “Attributes” requirements for this category in Appendix A are being rewritten to make them clearer and easier to follow. There are also consequential minor changes to Part 6A. The requirements themselves are unchanged, other than the following:

  • The job creation rules currently require jobs to have existed for at least 12 months during the applicant’s most recent period of leave. A change is being made to enable applicants to apply even if their current leave was granted less than 12 months ago; in such cases the jobs must have existed for at least 12 months before the date of the current application.
  • A transitional arrangement relating to the job creation requirement for applicants who entered the category before 6 April 2014, currently set out in published guidance, is being incorporated into the Immigration Rules. This transitional arrangement will only apply to extension and settlement applications made before 6 April 2019.
  • Applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
  • An amendment is being made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
  • An amendment is being made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the business, rather than the period before jobs were created. This provides a clearer demonstration of the applicant’s impact on the business.
  • Clarifications are being made to make clear that, where funds are currently held by another business, which is not the business the applicant is using to score points, that business is considered to be a third party providing funding.
  • Applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.
  • To prevent recycling of funds between applicants, a change is being made so that applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. Who is considered to be a close family member will depend on the facts in an individual application.
  • On 19 November 2015, Statement of Changes HC 535 introduced a requirement that investments made in the form of directors’ loans must be evidenced through readily identifiable transactions in applicants’ business bank statements. A change is being made so that this requirement only applies to investments made after 19 November 2015.
  • A provision is being removed because it contradicts the rule requiring applicants to be registered with Companies House within 6 months of the date the applicant entered the category. The removed provision requires that such registration has to be effected within 8 months of the same date.
  • Redundant transitional arrangements relating to applicants switching from Tier 1 (Post-Study Work) are being removed. This is because leave as a Tier 1 (Post-Study Work) Migrant was granted for two years and the category was closed on 6 April 2012.
  • A clarification is being made to the rule which excludes buying the business from its previous owner from being considered as a qualifying investment, to clarify that this means buying any business from its previous owner.
  • Minor amendments are being made to the requirements concerning format and contents of letters (used as evidence) for consistency.
  • Clarifications are being made to the evidential requirements for Tier 1 (General) migrants switching into the Tier 1 (Entrepreneur) category to make clear the relevant dates for evidence.

Tier 1 (Investor)

  • Minor technical changes are being made in relation to evidence of investments with National Savings and Investment (NS&I).
  • Investors who entered the category before 6 November 2014 may rely on the un-mortgaged portion of their main home. Changes are being made to this provision to clarify that the property must be the applicant’s main home, and also to provide, where the property is co-owned in a tenancy in common, that the investor’s share, and only the investor’s share, may count.

Changes relating to Tier 2 of the Points-Based System

Tier 2 (General)

  • Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently nonPhD students cannot apply to switch within the UK until they have received their final results.
  • Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.
  • Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.
  • Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.
  • A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change. The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.
  • A minor correction is being made to the Shortage Occupation List.

Tier 2 (Intra-Company Transfer (ICT))

  • A transitional arrangement which is no longer required is being removed. The arrangement ensured that migrants granted leave for 12 months or less under the rules in place before the Short Term Staff sub-category was introduced on 6 April 2011, were treated no less favourably than those granted in that subcategory in the context of the 12 month cooling-off period requirement.
  • The definition of the Long Term Staff sub-category is being amended, to reflect the closure of the Short Term Staff sub-category on 6 April 2017.

Changes to indefinite leave to remain in work categories

  • The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.
  • The maximum 180 days absences requirement is waived for absences when applicants have assisted with the Ebola crisis in West Africa. This provision is being widened to include assisting with any national or international humanitarian or environmental crisis.
  • An amendment is being made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.

Minor changes are being made to provide clarification, to remove duplication and inconsistencies relating to:

  • How the end date of the qualifying period for settlement is ascertained.
  • How the maximum 180 days of absence from the UK per year are counted for the purpose of a settlement application.
  • How time lawfully spent in the Isle of Man or Channel Islands in equivalent immigration routes can be counted towards time spent in the UK for the purpose of a settlement application.

Changes relating to Short-Term Study

  • The definition of a “state-maintained school” is being removed to avoid duplication, as this is already defined in paragraph 6 of the Immigration Rules.
  • A definition of “a course” within STS is being provided to give clarity that more than one programme of study can be undertaken on the STS route as long as they are completed within the validity of the visa period.
  • To allow students studying under the STS route to remain in the UK for up to 30 days at the end of their study to provide greater clarity and bring the route in line with other short-term visas.
  • The minimum age requirement within STS is being reduced from 18 to 16, to allow those aged 16 and over to apply for the longer English courses and to ensure the genuine student rule is applied consistently across the student visa categories.
  • The Higher Education Funding Council for England (HEFCE) is being added to the list of bodies that can provide institutional inspections.
  • STS students are not entitled to take part in any type of work, whether paid or unpaid. An amendment is being made to allow students to complete electives when they are studying towards a medical, dentistry or veterinary degree at an overseas HEI through the STS route. Those studying electives will continue to be unable to undertake any other type of work.
  • Amendments are being made to make the STS Rules gender neutral.
  • Sections relating to dependants within the STS rules are being deleted as they are now obsolete.

Changes relating to Tier 4 of the Points-Based System

  • References to Department for Employment and Learning in Northern Ireland are being updated as this has been renamed Department for the Economy.
  • The definition of a “Student Union Sabbatical Officer” is being updated as the current definition refers to rules which are no longer in effect.
  • The description of law conversion courses in England and Wales is being updated to reflect that these are now validated by the Solicitors Regulation Authority and Bar Standards Board instead of the Joint Academic Stage Board.
  • Part-time study at certain levels is being included within Tier 4. Tier 4 students studying part-time courses will not have work rights, will not be able to bring dependants and will not be able to extend in-country.
  • The rules on academic progression are being updated to allow students to apply for leave to remain from within the UK to complete a work placement or a study abroad programme, or to complete their course, after having completed a work placement or study abroad programme.
  • A clarification is being made within the table specifying maintenance requirements for Tier 4 (General) students to make clear which requirements are relevant to students who study in London and which to students who study outside London. Numbering is being added to all paragraphs in the table specifying maintenance requirements for Tier 4 (Child) students. Additionally, the language used in both tables is being altered so that it is consistent throughout.
  • The maintenance requirements for Tier 4 (General) and Tier 4 (Child) students are being aligned where applicants are applying to study at a residential Independent School. Additional funds for living costs will not need to be evidenced, as these will already have been accounted for in the boarding fees, which include course fees and lodging fees.

Changes relating to family members of Tier 4 migrants

  • Work rights for dependants of Tier 4 students are being updated to ensure these remain if the relevant main Tier 4 applicant is applying, or been granted leave, to study the same course for which they have previously been granted leave of 12 months or more, as a Tier 4 (General) Student.
  • Amendments are being made so that Tier 4 students studying part-time courses will not be able to bring dependants to the UK.

Other changes relating to family members of Points-Based System migrants

  • The wording in relation to genuine and subsisting relationships is being brought into line with that for family members applying under Appendix FM. This change is also being made in relation to dependants of migrants in other work categories set out in Part 5 of the Immigration Rules.
  • Minor technical changes are being made to the rules on maintenance funds, to remove an unintended consequence that a child applicant of a Points-Based System Page 11 of 12 Migrant cannot rely on funds held in a parent’s bank account unless that parent is either the main applicant or currently in the UK.

Changes to Tier 5 of the Points-Based System

  • At paragraph 1, the annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.
  • In Appendix N, the ‘BOND business internships’ is renamed as the ‘British Council Tech Trainees’ on the list of approved Government Authorised exchange schemes.
  • In Appendix N, the Khebrat Leadership for Change Programme has been added to the list of approved Government Authorised exchange schemes. This scheme will enable Saudi Arabian education professionals to undertake professional learning experience in the UK, through the Saudi national Khebrat programme.

Changes relating to sportspeople

  • The definition of professional sportsperson has been clarified.
  • In Appendix M, British Aikido has been added to the list of approved sports governing bodies.

Changes relating to domestic workers

  • At paragraph 159A(i), the minimum age limit for Overseas Domestic Workers has been increased to ensure that the worker has consented to their employment terms and conditions, and worked under those terms and conditions for a minimum of 12 months, as an adult.
  • At paragraph 245ZO(f), measures have been introduced to prevent overseas diplomats bringing extended family members to the UK in the guise of domestic workers, in order to circumvent the rules governing individuals permitted to accompany diplomats as dependants.
Cooling off period

Changes to Tier 2 (Intra-Company Transfer) Visa route

the Tier 2 (Intra-Company Transfer) Visa route can be used by an existing employee of a multinational employer who needs to be transferred to their UK branch for training purposes or to fill a specific vacancy that cannot be filled by a settled or EEA worker either on a long term basis or for frequent short visits. This route cannot be used by an employee of an overseas employer that is not linked by common ownership or control to the UK branch.

There are 3 sub-categories of Intra-Company Transfer (ICT):

  • Long Term Staff – if you have been working for your organisation for at least 12 months directly prior to your transfer and are being transferred to a skilled job in the UK to fill a post which cannot be filled by a settled worker. This is for a period of more than 12 calendar months, up to a maximum stay of 5 years. There are more flexible rules for high earners.
  • Short Term Staff – if you have been working for your organisation for at least 12 months directly prior to your transfer and are being transferred for a maximum period of 12 months to a skilled job in the UK to fill a post which cannot be filled by a settled worker. This route closed on 6 April 2017. You can only apply if your Certificate of Sponsorship was assigned on or before 5 April 2017.
  • Graduate Trainee – if you are a recent graduate recruit being transferred to a UK branch of your organisation for the purpose of training. (This route must not be used to fill long-term posts). You must be coming to the UK as part of a structured graduate training programme with clearly defined progression towards a managerial or specialist role within your organisation for a maximum period of 12 months.

Changes & Updates

There have been numerous changes to the Tier 2 (Intra-Company Transfer) Visa route since the launch of the Points-Based System (PBS) in 2008.

The time spent in any ICT sub-categories has not led to indefinite leave to remain (ILR) for all applicants did not obtain initial Tier 2 (ICT) leave under the Immigration Rules in place before 6 April 2010.

Further restrictions were imposed from 6 April 2011, including what was termed a ‘cooling-off‘ period after which persons who have been in the UK in the category are not allowed to re-apply to return. The length of the period depends on which sub-category they are in and which they are intending to return under.

Please note that no Tier 2 (Intra-company Transfer) migrant granted entry clearance under the rules in place on or after 6 April 2011 can switch into Tier 2 (General).

The latest major changes followed a full review of Tier 2 by the Migration Advisory Committee published in December 2015, and included closing two sub-categories (Skills Transfer, in relation to any CoS assigned on or after 24 November 2016, and Short Term Staff, in relation to any CoS assigned on or after 6 April 2017), and raising the minimum salary threshold for Long Term Staff applicants to £41,500 from 6 April 2017.

On the same date the Immigration Skills Charge and the extension of the Immigration Health Surcharge to Tier 2 (ICT) migrants were introduced.

Cooling-off periods

Subject to the  exceptions below, where a person has previously switched from any Tier 2 category into another category, they will not be able to apply for leave to remain to switch into Tier 2 (General) until 12 months have elapsed from the date that leave was granted in the non-Tier 2 category.

The cooling off period does not apply in the following cases:

  • the applicant is applying under Tier 2 (ICT) – Long Term Staff and was previously granted under Tier 2 (ICT) – Short Term staff, Graduate Trainee or Skills Transfer, or under the Tier 2 (ICT) Rules in place before 6 April 2011
  • the applicant is applying under Tier 2 (ICT) and the gross annual salary stated on the applicant’s current certificate of sponsorship (CoS) is £120,000 or higher (or £155,300 if their Certificate of Sponsorship was assigned before 6 April 2017)
  • the applicant is applying under Tier 2 (General), Tier 2 (Minister of Religion) or Tier 2 (Sportsperson) and the gross annual salary stated on the applicant’s current certificate of sponsorship (CoS) is £159,600 or higher (or £155,300 if their Certificate of Sponsorship was assigned before 6 April 2017)
  • the applicant was only in the UK as a Tier 2 migrant during the last 12 months for a short period or periods with a CoS which was assigned for 3 months or less, for example where the applicant

– was assigned a CoS of 3 months or less in the preceding 12 month period and had no other Tier 2 leave during that period, the cooling off period will not apply

– has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling off period will not apply If the applicant was assigned a CoS of 6 months in length, but the Home Office was notified by their sponsor that they ceased working in the UK after 2 months, the cooling off period will apply (as the CoS was assigned for more than 3 months)

Where the applicant left the UK before their Tier 2 leave expired, the 12 month period can start earlier than the date their leave expired but only if they can provide evidence of having not been in the UK for a period of 12 months immediately before that date.

The cooling-off period does not apply to the dependants of a Tier 2 ICT migrant. A spouse (partner) of a Tier 2 ICT visa holder may apply for Tier 2 (General) visa upon completion of the resident labour market test and issuance of the restricted certificate of sponsorship (CoS) by a UK-based sponsor (employer).

Acceptable evidence may include, but is not limited to:

  • travel tickets or boarding card stubs, but only if the applicant’s sponsor submitted an SMS report at the time, confirming that their employment in the UK had ended
  • exit or entry stamps in the applicant’s passport which confirms that they were not in the UK
  • a letter from the applicant’s overseas employer confirming the date they started or restarted work overseas, after returning from the UK
  • any other evidence that shows the applicant was not in the UK Page 32 of 124 Published for Home Office staff on 31 October 2017

Where evidence is produced and accepted, the cooling off period must be calculated to start from the earliest date supported by that evidence.

Immigration Law

Updated Guidance on policy for UK visas under Tier 1 (Exceptional Talent)

On 24 November 2017, the Home Office released the updated version of the full guidance on UK Visas and Immigration’s policy on visa applications under Tier 1 (Exceptional Talent).

This guidance must be used by those applying for an initial visa or a visa extension under Tier 1 (Exceptional Talent) and willing to understand the details of the policy for this immigration category.

Who is eligible for exceptional talent visa route?

The UK offers this route for exceptionally talented individuals in the fields of science, humanities, engineering, the arts and digital technology to enrich the United Kingdom’s knowledge economy and cultural life. The British government recognises that such talented individuals should have few restrictions on their economic activity once here. If you qualify, the route allows you to work and change employers, or to be self-employed, without the need for further authorisation or to be sponsored for employment in a specific post.

You may qualify under this route if you are already internationally recognised as having made significant contributions as a leader in your field, or you have already demonstrated potential to contribute significantly as a future leader in your field. Annex A of this Guidance describes the criteria you would need to meet.

Application Process

Applying for your first Tier 1 (Exceptional Talent) visa is a two stage process:

  • Stage One is submitted to the Home Office but considered by a Designated Competent Body and it is not an immigration application. It will assess your skills, abilities and achievements and decide whether you should be endorsed in order to progress your application. Application is submitted online. It can be submitted from wherever you are in the world but the supporting evidence must be sent to the UK for consideration.
  • Stage Two depends on where you are applying from and your nationality.

The recognised Designated Competent Bodies are:

  • Arts Council England – for arts and culture applications;
  • The British Academy – for humanities and social science applications;
  • The Royal Society – for natural sciences and medical science research applications; • The Royal Academy of Engineering – for engineering applications; and
  • Tech City UK – for digital technology applications.

Switching

This is only relevant if you make your application from inside the United Kingdom.

You can switch into Tier 1 (Exceptional Talent) from your current category of leave to remain in the United Kingdom if you have permission to stay as:

  • a Tier 1 Migrant;
  • a Tier 2 Migrant; or
  • a Tier 5 (Temporary Worker) Migrant, sponsored in the Government Authorised Exchange sub-category in an exchange scheme for sponsored researchers.

If you hold any other type of leave, you are unable to switch in-country into the Tier 1 (Exceptional Talent) category and you would instead have to return overseas to apply for entry clearance.

City of London by stillmiracle.com

UK Government doubles number of exceptional talent visas

On 15 November 2017, the Home Office announced that increased number of visas will be made available to leading figures and individuals who show promise in technology, science, art and creative industries.

As part of its ongoing commitment to welcome talented people from across the globe, and in recognition of the importance of these innovative industries to the UK, the number of visas available through the Tier 1 (Exceptional Talent) route is increasing from 1,000 to 2,000 a year.

The Government believes that this will ensure that more highly skilled people who enhance the UK’s economy can come to, and work in, this country.

The 2,000 visas will be made available to individuals who are recognised as existing global leaders or promising future leaders in the digital technology, science, arts and creative sectors by 1 of 5 UK endorsing organisations:

  • Tech City UK
  • Arts Council England
  • The British Academy
  • The Royal Society
  • The Royal Academy of Engineering

The current allocations of the 1,000 visas – which are split between the 5 endorsing organisations – will remain and the additional places will be made available across all of the endorsing bodies dependent on need. The government is keen to ensure that all nations and regions of the UK benefit from this change. The Home Office will look at how it can work with organisations across the UK to ensure wider take up of these visas outside London.

This announcement is part of the government’s ongoing reforms to routes to the UK from outside the EU.