Employment and Immigration Law Update – Immigration Law Update July 2019

Tier 2 and Tier 5 Sponsor Guidance, visas, an update on the Settled Status Scheme and the new PM are all covered in this month’s Immigration Law Update.

Settled Status Scheme update

In June 2019 the Home Office received 121,000 applications to the Settled Status Scheme, taking the total number of applications received up to 30 June 2019 to 909,300. Of those, 805,500 have been concluded.  65% were granted settled status and 35% were granted pre-settled status.  However, we don’t know how many of those applied for settled status and were only granted pre-settled instead.

The top three nationalities to apply are Polish, Romanian and Italian. Approximately 42,300 applications were also received from family members who are nationals of non-EEA countries. The current processing time is around one to four calendar days.

If you would like assistance with an application for pre-settled or settled status, or wish to discuss what other options you may have, please contact a member of our Immigration Team.

Planning our future immigration system – salary thresholds

We are delighted that the Home Secretary has now asked the Migration Advisory Committee (MAC) to review and advise on salary thresholds for the new immigration system, planned for 2021.

The MAC previously recommended retaining the existing minimum salary thresholds.  However, they have now been asked to reconsider and report by January 2020 on:

• how future salary thresholds should be calculated
• the levels of salary thresholds
• whether there is a case for regional salary thresholds for different parts of the UK; and
• whether there should be exceptions to salary thresholds, for example for shortage occupations.

Approved English language tests

The list of approved English tests and test centres has been updated.  Applicants who need to sit a test to show that they have the required level of English for their visa should refer to the new list. 

Restricted Certificates of Sponsorship (RCoS)

Tier 2 General migrants applying for a visa from outside the UK require a restricted Certificate of Sponsorship (RCoS).  There is a quota on the number of RCoS available each month.  At one point the demand for RCoS was far in excess of the quota.  However, since doctors and nurses were removed from the numbers, it has been possible for sponsors to obtain RCoS so long as the basic minimum requirements are met.  Latest data released by the Home Office shows that this continues to be the case.  There will be 2,220 RCoS available for allocation in July 2019. 

Visit visas vignette

The type of vignette used for most visit visas has changed.  The vignette is the physical visa that is added to a traveller’s passport or travel document.  Instead of a green Category C vignette, most visitors will now be given a red Category D vignette.

The change does not affect who needs to apply for a visa, how the decision is made, visa validity or visa service standards.  Any of the old vignettes already issued will continue to be valid until the date that the visa expires.

Tier 4 Students – sporting activities

Many immigration categories contain a condition of stay which prohibits an individual from performing activities in the UK as a “professional sportsperson”. In January 2019, the Home Office made substantial changes to how this is defined, which caused significant concern. As a result some visa holders were prevented from coaching their child’s team or taking part in an amateur match.  In March 2019 further changes were made but these failed to adequately address the problem.

The Home Office has now published updated guidance for Tier 4 Student visa holders, which states:

“you are permitted to play, participate or coach in grassroots/amateur sport, for instance at and for local and community teams, as well as at your Tier 4 sponsor, and in amateur competitions and leagues, such as those organised through British Universities and Colleges Sport (BUCS), providing you are doing so on a wholly amateur basis.”

This means that those in the UK with a valid Tier 4 Student visa can, for example, represent their university in competitions, or coach a sports team in their spare time, without breaching their visa conditions, so long as they are not being paid and it is a strictly amateur activity.

The change is yet to appear in the Immigration Rules but for now, this is good news for international students and Tier 4 sponsors.

Addendum to Tier 2 and 5 Sponsor Guidance

Earlier this month an addendum to the Tier 2 and 5 Sponsor Guidance was rushed through, without any corresponding changes in the Immigration Rules.  The change warned current and prospective sponsors against “fostering hatred or inter-community division; fomenting, justifying or glorifying terrorism; and/or;  rejecting the rights of, or discriminating against, other groups or individuals on the basis of their gender, gender identity, sexual orientation, marital status, race, religious belief (including lack of belief), or any other protected characteristic under the Equality Act 2010.”

Immigration lawyers around the country debated what had triggered this sudden addition and who it was aimed at.  The answer was provided by the Home Secretary in a speech on 19 July 2019 about countering extremism.

He explained “I have amended the guidance for sponsoring migrant workers.  This will allow us to refuse or revoke a sponsor licence where an organisation behaves in a way that is inconsistent with British values, or that’s detrimental to the public good.”  He went on to identify a particular organisation whose licence he wished to revoke.  However at the time of writing the sponsor in question is still showing in the register, which means the licence has not yet been suspended.

Tier 1 Investor – controversy continues

Following undercover reporting by The Times and Channel 4’s Dispatches programme, concerns have been raised that it is still too easy for individuals with £2m of ‘dirty money’ to obtain an Investor visa.

Changes to the scheme earlier this year have reinforced the obligations of financial institutions to complete full anti-money laundering checks and identify the source of their client’s wealth.  However the programme suggested that some may still take a more ‘flexible’ approach than others.

It was suggested that the Home Office should stop outsourcing this gate keeper function and carry out its own proper checks.  Dame Margaret Hodge MP, the former chairwoman of the public accounts select committee, has demanded suspension of the scheme pending a parliamentary inquiry and an audit of all past applicants.

However the Home Office has maintained: “The UK has some of the most rigorous checks in place for investor visas across the world. Recent reforms, including the forthcoming wealth audit requirement, are substantial and will further cement our position as a world leader in the fight against financial crime and corruption.”

Indefinite Leave to Remain – can overstaying ever be disregarded?

The Court of Appeal found that the Home Office’s own guidance on how to assess applications for indefinite leave to remain based on long residence in the UK is wrong and should be amended.

R (Ahmed) v Secretary of State for the Home Department [2019] EWCA Civ 1070

Facts

Mr Ahmed applied for indefinite leave to remain (ILR) on the basis that he had spent ten years in the UK with continuous and lawful leave.  He had lived in the UK for ten years but ‘overstayed’ on two occasions – for a total of 12 days.  The first in May 2008 where there was a three day gap between the expiry of his visa and the submission of the application for another visa.  The second gap was a gap of nine days, in December 2016.

Whilst this did amount to overstaying, the Home Office internal guidelines provide for discretion to be exercised in certain circumstances.  Mr Ahmed’s circumstances fell within the permitted discretion.  However, the Home Office refused Mr Ahmed’s ILR application on the basis that his continuous leave had been broken by these gaps.

Court of Appeal decision

The Court of Appeal agreed with the Home Office’s refusal.

Lord Justices Floyd and Haddon-Cave found it was “a short point of construction” and interpreted the Immigration Rules to mean that the discretion could not be exercised so as to create ten years of continuous lawful residence.  They acknowledged that there were inconsistencies in the Rules but found that “applying ordinary rules of statutory construction and the presumption of ideal, rational legislation, these differences in drafting should not be read as accidental or unintended”.

They stated that the current guidance which disregards such overstaying is simply wrong and should be changed.

Consequences

At the time of writing the guidance has not been changed and we anticipate this will cause further confusion for applicants.  The current position is that even if overstaying has been disregarded and further visa applications allowed, it will still come back to haunt the applicant if they wish to apply for ILR.

Apparently there are currently numerous other cases in the system on the same point and we wait to see if anyone will try to take the issue to the Supreme Court, perhaps on the basis that the Immigration Rules are neither ideal nor rational.

Of course the other option would be for the government to amend the Immigration Rules to reflect the more generous approach suggested by the guidance, but in the current climate that seems unlikely to happen.

Tier 2 General sponsorship – genuine vacancy

The Court of Appeal criticised the Home Office’s refusal of a Tier 2 (General) visa on the grounds it was not to fill a genuine vacancy.

R (Suny) v SSHD [2019] EWCA Civ 1019

Facts

Mr Suny entered the UK as a Tier 4 student in December 2007.  He was granted a series of visa extensions, but his leave was eventually curtailed. He overstayed and then applied for leave to remain on the basis of his family and private life. That application was refused. On 12 August 2015 he applied using the priority service for a Tier 2 General visa as a sales account and business development manager. 

Almost 18 months later, the Home Office refused Mr Suny’s application, on the basis that the job vacancy was not genuine. Mr Suny requested an administrative review, following which the Home Office maintained the decision.  He then applied for permission to bring an application for judicial review, but the Upper Tribunal declined permission.

Court of Appeal Decision

The Court of Appeal granted Mr Suny permission to purse his application for judicial review.  They remitted the case to the Upper Tribunal and made it clear that they should quash the Home Office refusal.

Lord Justice Irwin, who gave the lead judgment, found that none of the concerns raised by the Home Office were sufficient to justify the refusal and actually none of them related to the definition of “genuine vacancy”.

The Home Office had argued that Mr Suny was not suitably qualified for the position.  Lord Justice Irwin noted that to infer that a lack of qualifications meant the vacancy was not genuine would require facts that were “much more stark: where the job applicant lacked an essential qualification, or essential experience, or was otherwise evidently unsuitable.”

The Home Office had also argued that Mr Suny lacked experience. Lord Justice Irwin found that neither Mr Suny nor his sponsor had ever claimed he had direct experience, rather they acknowledged some training may be required.  He noted that an inexperienced but otherwise suitable applicant may be cheaper and also that the system allows sponsors to distinguish between new entrants and experienced workers.

The Home Office had queried why the Respondent wanted to recruit a migrant worker. Lord Justice Irwin noted that an exemption from the Resident Labour Market Test applied and so this point was irrelevant.

The Home Office also alleged that the job description was just a copy of that in the Code of Practice and therefore the job could not be genuine.  Lord Justice Irwin accepted that most employers will use job descriptions that are prepared without reference to the code of practice.  He could see that using a description that was so similar could cause concern, but at the same time he sympathised with sponsors who are anxious to ensure they are meeting exacting Home Office requirements.  He said that “mirroring” of the text from the Code of Practice did not necessarily mean the vacancy is not genuine and something more would be required.

The other Judge, Lord Justice Underhill criticised the Home Office for the “extraordinary delay” in making the original decision, particularly where the priority fee had been paid.  He noted his disappointment that no apology had been offered for this.

Sponsors will take comfort from the Court of Appeal’s willingness to pin down the Home Office’s grounds for the sometimes rather nebulous “not genuine vacancy” refusal.  However they should take warning from the Home Office’s readiness to challenge employers where they are not convinced the recruitment is genuine.  In particular it would be prudent to ensure that the job description used in a CoS is properly considered and is not just copied and pasted from the Codes of Practice.

Consequences

Although the Upper Tribunal is now expected to quash the refusal, it does not mean that Mr Suny will be granted his visa.  Rather the Home Office just has to make the decision again.  Meanwhile it remains to be seen whether after a four year delay his sponsor will actually still want to employ him.

Sponsors will take comfort from the Court of Appeal’s willingness to pin down the Home Office’s grounds for the sometimes rather nebulous “not genuine vacancy” refusal.  However they should take warning from the Home Office’s readiness to challenge employers where they are not convinced the recruitment is genuine.  In particular it would be prudent to ensure that the job description used in a CoS is properly considered and is not just copied and pasted from the Codes of Practice.

Stop press – new PM and new cabinet

In his first speech to Parliament as Prime Minister, Boris Johnson re-confirmed the guarantee previously given to EU nationals living and working in the UK, saying “under this government they will have the absolute certainty of the right to live and remain”.

He went on to say: “We will also ensure that we continue to attract the brightest and best talent from around the world. No-one believes more strongly than me in the benefits of migration to our country. But I am clear that our immigration system must change. For years, politicians have promised the public an Australian-style points based system.  And today I will actually deliver on those promises – I will ask the Migration Advisory Committee to conduct a review of that system as the first step in a radical rewriting of our immigration system. I am convinced that we can produce a system that the British public can have confidence in.”

He has appointed Priti Patel as the new Home Secretary.  We are still waiting for a new Immigration Minister to be announced.

Meanwhile, as a parting gift, Sajid Javid confirmed in Parliament on 23 July 2019 that the Government is accepting all of the recommendations made by the Migration Advisory Committee regarding the Shortage Occupation List. See our previous article for further details.

These articles are from the July 2019 issue of Employment and Immigration 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 July 2019.

The content of this article is for general information only. For further information please contact a member of our Immigration Team.