Immigration Law Update – December 2017
19 December 2017
A statement of changes to the Immigration Rules was published on 7 December 2017, with most of the changes coming into effect on 11 January 2018. Some of the main changes include;
Changes to Immigration Rules
A statement of changes to the Immigration Rules was published on 7 December 2017, with most of the changes coming into effect on 11 January 2018. Some of the main changes include;
Partners of PBS migrants
There is a significant change affecting partners of Tier 1, 2, 4 and 5 migrants.
When the main visa holder applies for Indefinite Leave to Remain, they have to show they have not been out of the UK for more than 180 days, in any given 12 months, during the five year qualifying period. Currently there is no such restriction on dependants. However, the 180 day absence rule is being extended to partners of PBS migrants, who obtain leave after 11 January 2018.
This will particularly affect families where the partner spends time outside the UK, either to support children at school abroad, care for relatives such as elderly parents in another country, or due to their own work or business interests.
Tier 1 (Exceptional Talent)
As announced in the autumn Budget, the number of Tier 1 (Exceptional Talent) visas will be doubled from 1,000 to 2,000. The extra places will not be allocated to any particular body, but will be available to those who have already used up their initial allocation for the year.
Applications for endorsement by the Royal Society, the British Academy and the Royal Academy of Engineering will be simpler for those who hold a peer-reviewed research fellowship with Research Councils UK, Wellcome Trust, British Heart Foundation, Cancer Research UK or UK National Academies, or who have been appointed to particular senior academic or research positions.
Migrants with a Tier 1 Exceptional Talent visa will be able to apply for accelerated Indefinite Leave to Remain after three years of continuous residence. Those with a Tier 1 Exceptional Promise visa will still need to wait for the usual five year period.
Tier 1 (Entrepreneur)
As expected, there has been some tinkering with the rules regarding Tier 1 (Entrepreneur) migrants.
To prevent abuse, there are new provisions regarding the funds that can be relied upon:
- to prevent recycling of monies, applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) or their business or close family member.
- applicants relying on venture capital must provide a letter from the venture capital firm, confirming the date the funds were transferred/invested in the applicant’s business and that the firm was registered with the FCA at that time.
- directors’ loans made after 19 November 2015 must be evidenced through readily identifiable transactions in the business bank statements.
- buying any business from its previous owner will not count as a qualifying investment.
There are also some changes to the job creation requirements for renewals:
- jobs must have existed for at least 12 months before the date of application (as opposed to for 12 months during the last grant of leave).
- information must be provided about paid hours, as well as the hourly rate for each job.
Tier 2 (General)
The Tier 2 sponsor guidance already provides that once a Tier 2 (General) migrant has been granted their visa, their sponsor cannot delay their start date by more than 28 days. This requirement is now incorporated into the Immigration Rules.
Applicants switching from Tier 4 (Student) to Tier 2 (General) will be able to apply for their new visa as soon as they have completed their course. Currently non-PhD students cannot apply to switch within the UK until they have received their final results. However sponsors who require a degree for a particular role may still want to delay assigning a Certificate of Sponsorship until they are satisfied the student will be awarded the necessary qualification.
Further exemptions to the Resident Labour Market test have been added for supernumerary research positions, where the applicant has been granted a scientific research award or fellowship, and for established research team members sponsored by a Higher Education Institution of Research Council. The change should simplify the sponsorship process for these employers.
Tier 4 (Student)
Currently Tier 4 Students must study on a full-time basis. Changes are being made to permit part-time study. Part-time students will not be allowed to work, will not be able to bring dependants with them and will not be able to switch category or renew their visa from within the UK.
Tier 5 (Youth Mobility)
The annual quota of places available under the Tier 5 Youth Mobility Scheme has been updated. This is based on reciprocal arrangements with Australia, New Zealand, Canada, Japan, Monaco and Taiwan, who accept UK nationals on similar schemes. The number of places for Australians has reduced slightly, whilst there is an increase for Canada and New Zealand.
Electronic entry clearance
Currently entry clearance must be endorsed in a valid passport or other travel document; however, the new rules will allow entry clearance to be issued in electronic form. We understand that, so far, this has been trialled with a very small group of students.
It remains to be seen what impact this will have on the way employers are expected to carry out pre-employment right to work checks.
Immigration bail
The government is finally going to bring into force the provisions in the Immigration Act 2016 regarding immigration bail. This will replace temporary admission and temporary release.
Brexit negotiations
Following months of negotiations, the UK and EU have finally concluded the first phase of negotiations. A joint report was published on 8 December 2017 by the UK government and the European Commission. This confirms both parties have reached agreement, in principle, on protecting the rights of Union citizens in the UK, and UK citizens in the Union, the framework for addressing the circumstances in Northern Ireland and the financial settlement.
Role of the ECJ
Through the Withdrawal Agreement (negotiations for which have not yet been completed) and Implementation Bill, the rights of EU citizens will be written into UK law when we leave the European Union.
The future role of the European Court of Justice (ECJ) had been one of the most contentious areas of negotiation. The rights of EU citizens will be enforced by UK courts but, according to Theresa May, “where appropriate, our courts will pay due regard to relevant ECJ case law.” For a period of 8 years after we leave the EU, the UK courts may choose to ask the ECJ for an interpretation prior to reaching their own decision.
Settled status scheme
As we are already aware, a new settled status scheme will be introduced for EU citizens and their family members. According to the Home Office, “it will be easy to apply for settled status and there will be a full right of appeal.” Theresa May has reiterated the application will cost “no more than applying for a passport”, but the exact cost remains unknown.
On Tuesday 12 December 2017 the Immigration Minister, Brandon Lewis, added that the Home Office are looking to develop the online process of applying for settled status as “where somebody spends literally a few minutes online and within a couple of weeks your settled status is dealt with and granted.” They plan to draw on existing government data, for example HMRC records.
Considering there are nearly 3 million EU nationals living in the UK, it will be interesting to see how the government deals with such a large volume of applications. It is likely that they will need to find a way of staggering them, if they are to avoid being inundated as soon as the scheme opens.
EU citizens with a Permanent Residence document will be able to convert to settled status, free of charge, from the second half of 2018. They will need to provide an identity document, confirm they still reside in the UK and declare any criminal convictions (which will be checked).
After 29 March 2019
It has been confirmed that there will be a transition period, during which EU citizens can move freely to the UK and UK citizens to the EU. It is likely to be around two years, but this is still not confirmed and we still do not know yet what rules will apply to those people.
A key topic for negotiations was the rights of extended family members. EU nationals currently enjoy more generous rights than British nationals in the UK, and the UK government wishes to curb this. However, they have now agreed that EU nationals who are living in the UK by 29 March 2019 will still be able to bring existing extended family members to the UK after we leave the EU, for example dependant parents and grandparents. These rules will also apply to non-EEA spouses, so long as the couple were married before 29 March 2019.
Settled status will be lost if the individual leaves the UK for more than 5 years. Indefinite leave to remain is lost if the holder leaves the UK for 2 years, so this provision for EU nationals is more generous.
Net migration falls by 106,000 after Brexit vote
UK net migration has hit a three-year low following the EU referendum on 23 June 2016. Figures from the Office for National Statistics reveal that the difference between the number of people coming to the UK to settle and the number of people leaving to live elsewhere, fell to 230,000 in the year ending June 2017.
Over three-quarters of the decrease in net migration is accounted for by 123,000 EU citizens leaving the UK. It would be easy to attribute this to the Brexit vote. However, our experience is that people’s motivation to move to or from the UK is also driven by other factors, including the fall in value of sterling and the improvement in job opportunities elsewhere in Europe.
Whilst the government will be pleased by the fall in net migration, it is still in the hundreds of thousands, rather than the tens of thousands that they have promised.
20 directors disqualified for employing illegal workers
Following recent investigations by the Insolvency Service, 20 directors from 16 restaurant and takeaway businesses were disqualified for employing illegal workers. The companies involved were also issued with penalty notices totalling £505,000.
During the period 1 April to 30 June 2017, 68 penalties worth £1,115,000 were issued against employers in the Midlands and East of England for employing 109 illegal workers. The region has the dubious honour of being second only to London and the South East, where 220 penalties worth £3,985,000 were issued in respect of 334 illegal workers.
The content of this article is for general information only. For further information regarding immigration, please contact a member of Birketts’ Immigration Team.
This article is from the December 2017 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at December 2017.
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The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2017.