By Paul Gulbenkian, of OTS Solicitors
The UK government has recently announced significant changes to the immigration rules, which will start coming into effect from 11th January 2018.
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In an explanatory note, the Home Office states the purpose of the imminent changes includes:
- clarifying rules for Tier 1 Entrepreneur Visa applicants
- allowing for electronic entry clearance issuing
- allowing standard and marriage/civil partnership visit visa holders to transit using the same visa
- eliminating inconsistencies relating to Indefinite Leave to Remain (ILR) for applicants and their dependents in work visa categories such as Tier 2
- increasing the number of Tier 1 Exceptional Talent Visa issued to 2,000 per annum and provide for accelerated settlement for certain applicants
- developing new Tier 2 provisions for research positions and for students switching from a Tier 4 Visa
The key changes due to come into effect next month are as follows:
The “Attributes” requirement in Appendix A are being rewritten to make them clearer and easier to follow. The changes include (but are not limited to):
- Under the current ‘job creation’ rules, the positions must have existed for 12 months or more during the applicant’s most recent period of leave. The change will 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.
- Applicants will need to submit the paid hours of employees as well as the hourly rate they are paid.
- Regarding job creation, the required evidence will in future relate to the period before the applicant joined the business, rather than the period before the positions were created. This is to obtain a stronger idea of the applicant’s impact on the business.
- If the investment funds of £50,000 or £200,000 are being held by a third-party business, that particular business will be considered to be a third party providing funding for the purposes of eligibility.
- If the funds are being provided by a Venture Capital Firm, a letter from that firm detailing the dates the funds were transferred to the applicant and/or invested, and the date the firm was registered with the Financial Conduct Authority (FCA) will be required.
- To prevent reusing of funds, 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. What constitutes a close family member will be decided on a case by case basis (and is therefore likely to be left to the courts to clarify should a dispute arise between an applicant and the Home Office).
Electronic entry clearance
Providing electronic entry clearance will be trailed by the British government in 2018. If successful, the issuing of entry clearance electronically will be rolled out fully at a later date. As the information will be accessible online, entry clearance documents will not need to be presented at the UK border once the change is fully in place.
Visit visa transit rights
Visitors holding a valid visit visa will be able to transit the UK without having to obtain another visa. Those holding a standard or marriage/civil partnership visit visa will be permitted to transit the UK using the same document.
The requirement for continuous employment throughout the qualifying period for ILR for Tier 2 migrants is to be abolished. At present, only breaks in employment of 60 days or less can be disregarded by an immigration official deciding on an ILR application. However, as the Home Office reserves the right to curtail leave after 60 days if a Tier 2 migrant is no longer working for their sponsor, the rule is now considered redundant. However, due to the current pressures on the Home Office thanks to Brexit, most curtailments are not carried out within 60 days, leaving a Tier 2 migrant time to change employment whilst still qualifying for ILR.
Tier 1 Exceptional Talent Visa
To encourage highly-talented people in the fields of science, humanities, engineering, medicine, digital technology and the arts to come to the UK under very favourable immigration conditions (ie the ability to work on a freelance basis), the number of Tier 1 Exceptional Talent Visas issued each year will be doubled to 2,000.
New exemptions to the Resident Labour Market Test (RLMT)
Posts held by researcher applicants who have received extra research Awards and Fellowships, and established research teams who are sponsored by certain bodies will be exempted from the RLMT.
ILR residency requirement of 180 days extended
Currently, main applicants on a points-based visa wishing to apply for ILR must prove they have not been absent from the UK for more than 180 days each year during their leave to remain. This requirement will now apply to partners of the main applicant granted leave after 11th January 2018. The change is not retrospective, but all partners of points-based-system migrants should be aware of the change if they are travelling overseas for extended periods of time.
OTS Solicitors is a highly-regarded London Immigration Law firm. On behalf of my colleagues, we would welcome the opportunity to clarify any of these changes and illustrate how they may affect you and your business.
Paul Gulbenkien is a former retired immigration judge and a consultant at OTS Solicitors. He is a founding member of the Immigration Law Practitioners Association (ILPA) and President of the European immigration lawyers Group. Paul also advises the British government and the Migration Advisory Committee (MAC) on business immigration issues.
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Posted on: Monday, 11 December, 2017