Tag: Immigration Rules

Changes to the Immigration Rules: Tier 2 (General) Visa

The Home Office announced on 15 June 2018, changes to the Immigration Rules will affect a number of categories including Tier 2 of the Points-Based System.

Changes are being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017.

The changes will mean that health sector employers will be able to sponsor doctors and nurses without requiring restricted Tier 2 certificates of sponsorship or putting pressure on the limit. This will free up places within the limit for other key roles which contribute to the UK economy and other public services. The changes will be kept under review.

In all other respects, the change preserves the existing arrangements. This means that all applications for nurses, and all applications for doctors not currently recognised on the Shortage Occupation List, will continue to be required to demonstrate that they have met the requirements of the Resident Labour Market Test.

Doctors currently recognised on the Shortage Occupation List will continue to be exempt from the RLMT.

The following additional changes are being made to Tier 2 Visa category:

  • Amendments are being made so that applications for Restricted Certificate of Sponsorship for Croatian nationals no longer count towards the Tier 2 limit. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion of the fifth anniversary of Croatia’s accession to the EU.
  • From 14 June 2012, the skills threshold for jobs sponsored under Tier 2 (General) and Tier 2 (ICT) increased from Regulated Qualifications Framework (RQF) level 4 to RQF level 6. The transitional arrangements, for those previously in these routes to extend their stay, are no longer needed and are being closed. Provisions for these migrants to apply for indefinite leave to remain are being retained. The Government signalled in March 2016 that this closure would take place in July 2018, and set this out in the published guidance for Tier 2 sponsors.
  • A change is being made to expand the restriction on Tier 2 migrants holding more than 10% of shares in their sponsor so as also to restrict such ownership being held indirectly, such as via another corporate entity.
  • A change is being made to the evidential requirements for Tier 2 migrants applying for settlement, who have been absent from work on maternity, paternity, shared parental or adoption leave. These applicants are additionally required to provide evidence of the underlying adoption or birth that necessitated their leave. These changes bring the requirements in line with similar requirements elsewhere in the Immigration Rules.
  • References to Find a Job, the service replacing Universal Jobmatch, have been included for the Resident Labour Market Test.
  • Minor drafting corrections are being made to correct the Standard Occupational Classification (SOC) code used for midwives. These corrections have no impact on the way applications for midwives are considered.

These changes to the Immigration Rules will come into effect on 6 July 2018.

More information is available in the statement of changes.

For more details, please feel free contact our please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

New changes in the Tier 1 (Exceptional Talent) Visa Category

New changes to the Immigration Rules were prepared and laid by the Home Office before Parliament on 15 June 2018. These changes will come into effect on 6 July 2018.

In addition to the removal of doctors and nurses from the Tier 2 visa cap there are a number of changes to other UK’s visa routes, including Tier 1 (Exceptional Talent), Tier 1 (Investor) and Tier 1 (Entrepreneur).

Tier 1 (Exceptional Talent) Visa Changes

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. The applicants must be endorsed by a Designated Competent Body.

The following changes are being made to this category:

  • Opening up the exceptional talent visa to include leading fashion designers. The endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses. These applicants will be assessed by the British Fashion Council operating within the endorsement remit of Arts Council England.
  • Tier 1 (Exceptional Talent) route has also been opened up to a wider pool of TV and film applicants, under the remit of ACE. This is due to the changes to the criteria and list of eligible awards for applicants in film and television.
  • Other changes are being made to the criteria for endorsement by each Designated Competent Body, at those bodies’ requests. These include changes to the evidential requirements for applicants holding a peer-reviewed research fellowship; and changes for digital technology applicants to reflect the rebranding of “Tech City UK” as “Tech Nation”.
  • Amendments are being made so that endorsements for Croatian nationals no longer count against the number of allocated endorsements available to each Designated Competent Body. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion, this July, of the fifth anniversary of Croatia’s accession to the EU in July 2013.

More information is available in the statement of changes.

For more details, please feel free contact our please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile / Viber: +447463382838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

UK Visa Fees

Changes to the Immigration Rules: HC895, 15 March 2018

The Secretary of State initiated certain changes to the Immigration Rules with the purpose to: (i) Ensure that an asylum claim can be deemed inadmissible, and not be substantively considered by the UK, if, another EU Member State has already granted the claimant international protection; (ii) make changes and clarifications to the Immigration Rules relating to family life; and (iii) make the annual update to the list of Permit Free Festivals.

The below specific changes to the Immigration Rules shall take effect on 6 April 2018.

Changes relating to asylum claims

The change to Part 11 is being made to provide that an asylum claim will be deemed inadmissible, and will not be substantively considered by the UK, if another EU Member State has granted either refugee status or subsidiary protection (known collectively as international protection). This change is in line with both the UK’s established policy on safe third countries, and the EU’s objective in reducing the
secondary movements of those granted international protection.

Article 25(2)(a) of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”) permits a Member State to apply the principle of inadmissibility to asylum claims in certain circumstances.

The rule change is made further to the Procedures Directive, in line with the stated aim of the European Union to limit secondary movements of applicants for international protection.

The UK has operated a safe third country policy for many years. Broadly, this means the identification of circumstances in which an individual has arrived in the UK and sought international protection, but where there is an alternative country that would be regarded as capable of granting sufficient protection. This policy is a key element of the UK’s asylum policy and allows the UK to prevent misuse of the asylum system.

Changes relating to family life

To clarify, in Appendix FM, that those on a 5-year route to settlement must meet all eligibility requirements, including the immigration status, financial and English language requirements, at every application stage including where indefinite leave to remain is sought after five years, in order to be granted leave under these Rules.

Changes relating to visitors

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 has been updated for 2018/19.

Immigration Assistance

For expert advice and assistance in relation to your particular immigration case, please contact our immigration lawyers on Tel. +44(0)20 7822 8535, Mobile/Viber: 074 6338 2838, by e-mail: contact@sterling-law.co.uk or via our online appointment booking form.

Insurmountable obstacles rule featured in Appendix FM of Immigration Rules in cases concerning partner relationships

The application and interpretation of the “insurmountable obstacles” rule aims for a balance between the Article 8 rights and the legitimate aims of immigration control. The Rules therefore account for the cases where people apply for a leave to remain as partners and the following applies:

“(b) the applicant has a genuine and subsisting relationship with a partner who is in the UK and is a British citizen, settled in the UK or in the UK with refugee leave or humanitarian protection, and there are insurmountable obstacles to family life with that partner continuing outside the UK.”

“Insurmountable obstacles” are defined as very serious difficulties, which would be faced by the applicant or their partner in continuing their family life together outside the UK and which could not be overcome or would entail very serious hardship for the applicant or their partner. Therefore, the focus is on the difficulties to be faced by the couple in continuing their family life outside the UK.

Although this entails a high test, it does not mean literally insurmountable obstacles. In practice, interpretation of this rule is practical and realistic. In establishing insurmountable obstacles, the following factors may be taken into consideration, as per Jeunesse v Netherlands [2014] ECHR 1036:

  • Whether family life would be effectively ruptured;
  • Whether there are any ties in the Contracting State (and their extent);
  • Factors of immigration control (eg, history of immigration law breaches);
  • Public order

There are a few other considerations that can influence the application of insurmountable obstacles to a particular case.  

  • Firstly, it is important if the applicant’s stay in the UK is unlawful or precarious. This affects the weight attached to the public interest in removing the person from the UK. Accordingly, the weight of public interest is determined by the outcome of immigration control over the applicant.  This can be illustrated by two contrasting scenarios. If the applicant’s stay in the UK was unlawful and they would be deported as a foreign criminal, the public interest in their removal is elevated. By contrast, if it is certain that the applicant would be granted leave to enter the UK after being removed, the interest in such removal is diminished, as illustrated by the Chikwamba rule.
  • Secondly, a less stringent approach might be appropriate if the applicant and their partner were under a reasonable misapprehension of their ability to maintain a family life in the UK. In practice, this would apply, for example, in cases when someone is brought to the UK as a child and not informed of their immigration status.

Nevertheless, even though it is established that the test of insurmountable obstacles is high, the Agyarko case also notes that if the test is not met, but the refusal of the application would result in unjustifiably harsh consequences, the refusal will be disproportionate and a leave granted under “exceptional circumstances”. Therefore, despite a high threshold of the test, there are many factors that affect the decision of a court or tribunal when each individual case is being decided.