New UK Visa Immigration Rules Affecting NHS Nurses and What You Can Do About It
By Oshin Shahiean of OTS Solicitors
Earlier this week the Royal College of Nursing sounded out an alarming warning to the UK Government that the new Immigration rules due to come into force in April 2016 could cause chaos for the NHS.
Under the new rules, non-EEA migrants who are not earning at least £35,000.00 gross per annum can be sent home after six years. Based on basic pay, the £35,000.00 threshold will exclude overtime, allowances and bonuses.
Although the focus has been on nurses, the new requirements will affect all individuals who wish to apply for Indefinite Leave to Remain as a Tier 2 migrant.
If you are a nurse or skilled migrant currently residing in the UK, and you do not meet the new income threshold, the first question on your mind is likely to be, “What can I do to stay in the country after my visa expires?” This blog is designed to answer this question, and provide some guidance as to the options available to those affected by these changes due to come into force in less than twelve months.
What are the New Immigration Changes Comprised Of?
Prior to the new Immigration rules coming into effect in 2011, the ability to apply for Indefinite Leave to Remain in the UK was based primarily on the amount of time an applicant had spent in the country.
Under the new rules, applicants who gain entry to the UK on a 2 Visa must demonstrate they have a gross annual salary of £35,000.00 if they apply for Indefinite Leave to Remain on or after 6th April 2016 (this rises to £35,500.00 for those applying on or after 6th April 2018). The only exception to this new requirement is if the applicant is being sponsored for a job that appears on the Shortage Occupation List in Appendix K.
Options Available to Affected Applicants
If you are concerned about being removed from the UK next year due to being unable to meet the new financial threshold, you essentially have two options:
- Switching to a different category of visa; or
- Challenging the decision to remove you
Switching to a different category of visa
If you seek legal advice regarding being able to remain in the UK after your visa expires the first option your solicitor will investigate is whether or not you can switch to another visa. An example of this is switching to a spouse visa if you have married a UK citizen whilst you have been residing in the UK. Another example would be switching to a student visa if you wished to embark on a course of study.
Challenging the decision
There are a number of ways your solicitor could seek to challenge the decision to remove you from the UK due to not meeting the financial requirements under the new rules.
The first avenue your solicitor should explore is whether there is an opportunity to apply for a reconsideration of the Home Offices’ decision. A reconsideration will check for any administrative errors in the processing of your application, such as the miscalculation of your earnings.
If an administrative review is unsuccessful, you can look for relief by challenging the Home Offices’ decision in the courts. Applicants who have established a family and a home in the UK may be able to argue that the decision to remove them breaches Article 8 of the European Convention on Human Rights. Article 8 states:
‘Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’
If the Court, fails to grant relief, you can apply for leave to have the decision of the Home Office made subject to judicial review. A judicial review involves the Administrative Court examining the decision of the Home Office and checking its legality.
Acts or omissions will be unlawful and open to review by the Administrative Court if they fall under one of the available grounds of judicial review:
- illegality, where there was an error of law in the making of the decision—one example is where the decision maker did not have the power to make the decision, but this ground also includes unlawful delegation and the fettering of discretion
- irrationality or unreasonableness—note that the relevant test is very high
- procedural impropriety and unfairness
- the decision was in breach of the Human Rights Act—usually involving an assessment of proportionality, and
- the decision breaches EU law
Conclusion
Although this week’s media reports regarding the deportation of nurses and other skilled migrants who fail to meet the income threshold required to obtain permanent leave to remain in the UK from April 2016 may seem alarming, it is important to remember that there are a number of legal options available to challenge or circumvent removal from the UK.
To find out more, please call our office on 0207 936 9960 to talk to us about the options that may be available to you.