On the 16th November 2014, the Home Office announced a number of changes to the Immigration Rules. We have summarised the most relevant changes below.
Administrative Review – changes as of 20/10/2014
A new Administrative Review process is being introduced for applicants who are refused Leave to Remain and who are not given the right of appeal, often because their existing visa has not yet expired. This will be especially useful for applicants who have had Points Based System applications refused due to minor errors by caseworkers, in much the same way as the Administrative Review system currently works for Entry Clearance applications. The service standard for the determination of such an application will be 28 days, although anyone familiar with Home Office service standards will know that this does not necessarily mean that all requests for Administrative Review will be processed within 28 days! From the 20th October, in-country Administrative Review will only be open to Tier 4 applicants, although it is envisaged that this will be extended to other categories in due course.
Validity of applications – changes as of 06/11/2014
The Home Office intends to show greater flexibility in considering whether an application is valid, and will provide opportunities for applicants to remedy minor errors or omissions that in the past may have led to the invalidation of an in-time application.
In addition, the Home Office has clarified that in order to be considered ‘valid’, postal applications must be sent to the address listed on the specified application form.
Dependent children – changes as of 06/11/2014
Dependent children aged 18 or over at the time of application will now be permitted to apply on the same application form as the main applicant. Previously dependent children aged 18 or over have needed to submit their application on a separate application form.
Visitors – changes as of 06/11/2014
The Home Office has added several new scenarios to the list of activities that business visitors are able to perform in the UK. These are as follows:
- Scientists and researchers may share knowledge, expertise and advice on an international project which is being led by the UK provided the research is not work that fits within the remit of Tier 2 or 5 of the Points Based System, which would require sponsorship.
- Overseas lawyers who are employees of international law firms with UK offices may provide direct advice to clients in the UK on litigation or international transactions provided they remain paid and employed overseas.
- Graduates of overseas nursing schools may be admitted as a Business Visitor to sit the Objective Structured Clinical Examination (OSCE).
Tier 1 (Investor) – changes as of 06/11/2014
Following advice from the Migration Advisory Committee, the Home Office will increase the investment threshold from £1m to £2m. In order to extend the visa, the full investment sum must now be invested in the UK rather than 75% as was previously the requirement. Further, it will no longer be permissible for the investment sum to be sourced as a loan.
On a more positive note, the investment no longer needs to be ‘topped up’ if its market value of the investment falls below £2m. Instead investors will only need to purchase new qualifying investments if they sell part of their portfolio and need to replace them in order to maintain the investment threshold.
Lastly, Home Office caseworkers will now be able to refuse an application where they have reasonable grounds to believe any of the following:
- That the applicant is not in control of the investment funds;
- That the funds were obtained unlawfully or by means that would be unlawful if they occurred in the UK;
- That the character, conduct or associations of the investor would make the approval not conducive to the public good.
This change in particular raises concerns that the Home Office is continuing to move back towards a highly subjective style of decision making, based on the caseworker’s own opinions rather than an objective standard.
Tier 1 (Entrepreneur) – changes as of 06/11/2014
To cut down on perceived abuse of the Tier 1 (Entrepreneur) scheme, the Home Office has decided that for applications submitted in the UK, the investment funds must be present in the UK. It has previously been acceptable for the funds to be located outside of the UK provided they were in a qualifying bank account and were freely movable to the UK. This continues to be acceptable for out of country applications.
Tier 1 (General) – changes as of 06/11/2014
It will now be policy that extensions granted under this scheme will be granted for three years or the time the applicant needs to take their time in the UK within this scheme to five years, whichever is longer.
Once the Tier 1 (General) scheme has closed to extensions in April 2015, the Home Office will consider making further changes to the scheme, presumably in relation to the requirements for Indefinite Leave to Remain as a Tier 1 (General) visa holder. As it stands, applications for ILR under this scheme will only be accepted up until April 2018.
Tier 2 – changes as of 06/11/2014
The Home Office has announced that they will now consider whether a genuine vacancy exists as part of the Tier 2 application. Home Office caseworkers will be able to refuse an application where there are reasonable grounds to believe any of the following:
- That the job does not exist;
- That the skill level has been exaggerated;
- That the Resident Labour Market Test (the process of advertising the job for 28 days) has been conducted with the specific purpose of excluding settled workers;
- That the applicant is not qualified to do the job.
Again this raises concerns that the Home Office is moving back towards a more subjective system of decision making – something that the Points Based System was created to avoid. In relation to point 3 in particular, the Home Office is clearly suggesting that there is a tendency among employers to ‘tailor’ a job description or advert so that it closely matches the skills and experience of the migrant worker they wish to sponsor. It has never been more important to consider the RLMT requirement carefully and with an understanding of all the rules.
The Home Office will also confirm in the Immigration Rules that Tier 2 migrants may not be sponsored to undertake an ongoing routine role or provide ongoing routine services for a third party who is not the sponsor. This has always been policy, but again it is likely that the Home Office is moving to combat what it sees as abuse of the system within the contracting industry.
Finally the Immigration Rules are being corrected so that Tier 2 (ICT) migrants switching onto a Tier 2 (General) visa no longer have their time spent on the ICT visa counted towards the six year cap on their stay in the UK. A previous drafting error meant that although certain Tier 2 (ICT) visa holders could switch onto a Tier 2 (General) visa, they would not reach five years in the UK (and thus qualify for ILR) before they reached the six year cap. This error has now been corrected.
Tier 5 (Youth Mobility Scheme) – changes as of 01/01/2015
From the start of 2015, the Home Office will increase the annual allocation of places on the scheme for New Zealand nationals from 9,500 to 11,000.
For more detailed information on the above or an assessment of how these changes might affect you, please don’t hesitate to get in touch.