Immigration Law Update - June 2018

26 June 2018

EU Settlement Scheme FAQs, Tier 2 visa cap, Tier 1 Exceptional Talent, sponsored scientific researcher roles, new start-up visa route, a reminder re Croatian nationals, illegal working penalties and a stream-lined application process for students are covered in this month's update. 

EU Settlement Scheme - FAQs

On 21 June 2018 the Government announced further details of the new settled status scheme for EU nationals. These still need to be approved by Parliament.

How do I apply?
Applications will be made online. You will need to prove your identity and provide evidence of your residence in the UK. If you would prefer not to send away your passport/ id card, you will be able to use an app to upload this. However at the current time this app only works on Android phones (not iPhones).

The Government will automatically check HMRC and DWP records for proof of residence. If these are inconclusive then you will be invited to provide further documentary evidence. There will be a list of preferred evidence and then alternative acceptable evidence of residence. The Government has said it will take a flexible approach, but of course it remains to be seen how this will be implemented in practice.

Finally a criminal record check is required. Criminal conduct will be treated differently depending on whether it occurred before or after 31 December 2020, with stricter rules applying after this date.

Will I have to prove I have been exercising EU Treaty rights?
The Government has said that to obtain settled status you just need to have been living in the UK for five years. They will be looking to grant applications rather than to refuse them.

Whereas students and self-sufficient individuals currently have to provide evidence that they held comprehensive sickness insurance before they can get a permanent residence document, this will not be required for the new settled status.

What if I have not been in the UK for five years?
In this case you will generally get “pre-settled status” instead. The Government has said this will allow you to stay in the UK for a further five years, after which you are expected to apply for settled status.

When can I apply?
The scheme is still in the testing stages. There will be a phased roll-out of the scheme from late 2018. We are still waiting for details of how this roll-out will work.

The Government expects the scheme to be fully open by March 2019. The deadline to apply is 30 June 2021.

How much will it cost?
The cost will be £65 per person for those age 16 or over and £32.50 for under-16s.

Anyone who already has a permanent residence document, or indefinite leave to remain, can apply for free. There is also no charge to move from pre-settled, to settled status.

Applicants will not be required to pay the Immigration Health Surcharge.

What documentation will I receive to prove my new status?
You will not receive a physical document. Instead you will be able to get proof of your status through an online service. Presumably the Home Office will update its guidance on right to work and right to rent checks accordingly.

What will my rights be?
Settled status will mean you are eligible for public services such as healthcare and schools, public funds and pension.

Once you have settled status, you can leave the UK for up to five years and return again with your settled status intact.

What about EU nationals arriving after we leave the EU?
The agreement with the EU provides for an “implementation period” from 30 March 2019 to 31 December 2020. EU nationals who arrive during this time will be expected to apply for “pre-settled status” and then eventually progress to settled status as appropriate.

But what if there is no deal?
Even if we were to exit the EU with no deal (at least theoretically possible as nothing has been signed to date), the fact the Government has made such clear assertions upon which people are entitled to rely, means they would struggle to renege on this commitment.

What about non-EU EEA nationals?
The Government intends for the scheme to also apply to nationals of Iceland, Lichtenstein, Norway and Switzerland, but this still needs to be formally agreed.

What about Irish nationals?
Irish citizens may choose to apply for settled status, but they will not be required to do so as they have a separate right of residence in the UK that is not related to EU membership.

Doctors and nurses to be taken out of Tier 2 visa cap

The cap on restricted Certificates of Sponsorship (“RCoS”) has been causing problems for employers since December 2017. In particular the NHS has complained that it has been unable to sponsor junior doctors from overseas.

To alleviate the situation, from 6 July 2018, doctors and nurses will be removed from the cap. This means there will be no restriction on the number of doctors and nurses who can be employed through the Tier 2 visa route. As a result the NHS should be able to recruit the doctors it has been waiting for.

Whilst we are still awaiting the publication of new sponsor guidance, we anticipate that sponsors will simply use unrestricted CoS for roles in SOC codes 2211 (doctors) and 2231 (nurses). NHS trusts which plan to take advantage of the new rules should check how many unrestricted CoS they currently have available in their sponsor management system and should be prepared to pay £200 to have any request for an increased allocation expedited.

Currently around 1/3 of RCoS are used by the NHS (and around 40% of all Tier 2 visas are for NHS staff). Taking these workers out of the cap means that from July, those RCoS should be available for other employers.

However given the number of people who have been waiting for RCoS, we do not expect the backlog to clear any time soon and we believe it will continue to be difficult to obtain RCoS for roles with a salary of below for example £40k.

Tier 1 Exceptional Talent widened

The Tier 1 Exceptional Talent visa route is open to up to 2,000 people per year. It is designed to provide visas for leading talent in the fields of science, humanities, engineering, medicine, digital technology or the arts.

From 6 July 2018 it is being widened to include top fashion designers. Applications must be endorsed by a specific sector body. For fashion this will be the British Fashion Council under the endorsement remit of Arts Council England (“ACE”).

Changes to the criteria applied by ACE will also open the scheme to a wider range of film and TV applicants.

At a time when Tier 2 visas are under pressure, employers who have a star candidate in a relevant field would be well advised to consider whether the Tier 1 Exceptional Talent route might be suitable instead.

Sponsored scientific researcher

From 6 July 2018 there will be a new visa route under Tier 5 (Temporary Worker – Government Authorised Exchange Scheme), for sponsored scientific researchers to come to the UK for up to 24 months. This replaces the old Sponsored Scientific Researcher Initiative.

UK Research and Innovation (UKRI) will engage with sponsored researchers within its own organisation and endorse select Independent Research Organisations to hold a Tier 5 Licence. Those already endorsed are:

  • Babraham Institute
  • John Innes Centre
  • The Pirbright Institute
  • The Francis Crick Institute
  • Diamond Light Source Ltd
  • Plymouth Marine Laboratory
  • Quadram Institute Bioscience
  • The Welding Institute
  • The Sainsbury’s Laboratory, Norwich
  • Wellcome Trust Sanger Institute
  • National Institute of Agricultural Botany (NIAB)
  • Natural History Museum

The route is suitable for academics, researchers, scientists, research engineers or other skilled research technology specialists. They must be filling a supernumerary role. They may give lectures (not amounting to a formal teaching post), act as an examiner, undertake skill development/knowledge transfer, undertake a period of work-based training/work experience/internship/placement or work on research collaborations.

New start-up visa route

The Home Secretary has recently announced a new “start-up” visa route for people who want to start a business in the UK. The route has been designed following advice from the Migration Advisory Committee and feedback from the tech sector and other stakeholders.

It will replace the Tier 1 (Graduate Entrepreneur) visa, which currently enables foreign national graduates (who graduated within the last two years) to apply for an endorsement from an authorised UK university or Department for International Trade as part of an elite global graduate entrepreneur programme.

The new entrepreneur route is expected to launch in spring 2019 and will “widen the applicant pool of talented entrepreneurs and make the visa process faster and smoother for entrepreneurs coming to the UK”. Further details will be announced in due course.

Reminder re Croatian nationals

As explained in an earlier update, from 30 June 2018, Croatian nationals will be able to work freely in the UK and will no longer require worker authorisation.

Illegal working penalties

The Home Office continues to clamp down on illegal working. The latest quarterly report shows 990 illegal workers were found across the UK between 1 October and 30 December 2017 – a 17% increase on figures released in the previous quarter. As a result, 624 penalties were issued to employers, amounting to £11.6m in fines in just a three month period.

Right to work checks remain essential for employers. We can support employers with a right to work check masterclass and mock audits. Please contact our Immigration Team for further details.

Stream-lined application process for students

The Home Office has expanded the list of countries from which students will be able to benefit from a streamlined Tier 4 visa application process. The Home Office reserves the right to see full evidence and will continue to request samples at random, but the relaxation of the rules should speed up applications at this peak time of year.

This light-touch to documentation will apply to students from:

  • Argentina
  • Australia
  • Bahrain
  • Barbados
  • Botswana
  • Brunei
  • Cambodia
  • Canada
  • Chile
  • China
  • The Dominican Republic
  • Indonesia
  • Japan
  • Kuwait
  • Malaysia
  • The Maldives
  • Mexico
  • New Zealand
  • Qatar
  • Serbia
  • Singapore
  • South Korea
  • Thailand
  • Trinidad and Tobago
  • United Arab Emirates
  • United States of America

Tier 4 sponsors should nevertheless continue to ensure they are holding all documents required under Appendix D of the Tier 4 sponsor guidance.

The content of this article is for general information only. For further advice on any of these topics, please contact Clare Hedges, Janice Leggett or another member of Birketts' Immigration Team.

This article is from the June 2018 issue of Employment Law Update, 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 June 2018.

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