On 14^th November 2011 the UK Border Agency introduced changes to the Shortage Occupation List. These changes are based on recommendations received from the Migration Advisory Committee (MAC) in relation to skills that are in shortage in the UK, or are no longer in shortage.

Positions on the Shortage Occupation List do not need to be advertised by the employer before a migrant worker can be employed, as there is an accepted shortage of resident workers able to fill these skilled roles.

These positions have been added to the Shortage Occupation List:

• actuaries;
• high integrity pipe welders;
• environmental scientists; and
• geochemists.

The following positions have been removed from the Shortage Occupation List:

• secondary education biology teachers;
• speech and language therapists;
• pharmacists;
• orthoptists;
• veterinary surgeons; and
• rank and file orchestral musicians.

Those positions that have been removed from the Shortage Occupation List will now be subject to the Resident Labour Market Test, i.e. they will need to be advertised to check that there is no resident worker who can fill the role.

Advertising must be carried out in line with the UK Border Agency’s guidelines, and appropriate evidence must be kept.

If you need help completing the Resident Labour Market Test, or with any other requirement, please contact us.

The Minister of state for Immigration, Damian Green, has confirmed that restrictions on Bulgarian and Romanian workers in the UK will remain in force.

The initial restrictions on employment, in place since Bulgaria and Romania’s accession to the EU on 1^st January 2007, could have been lifted after the initial 5 year period finished at the end of this year.

However, it has been confirmed that these restrictions will stay in place until the end of 2013. At the end of 2013 the UK will be obliged to lift any restrictions on Bulgarian and Romanian workers, as restrictions may only stay in place for seven years in total, in accordance with EU law.

Under the current rules, Bulgarian and Romanian nationals may be self-employed in the UK without first gaining permission. If a Bulgarian or Romanian national wishes to work as an employee, they must first obtain permission from the UK Border Agency, unless they are exempt from this requirement.

There are a number of different ways in which a Bulgarian or Romanian may gain permission to work in the UK, including:

• Having family members in the UK;
• Having studied a degree in the UK;
• Qualifying under HSMP criteria; or
• Having a firm job offer for a position at NVQ level 3 or above.

If you are looking to employ a Bulgarian or Romanian, or you are a Bulgarian or Romanian national looking for permission to work, we would be happy to help you with the necessary application(s); please contact us.

In line with the UK Border Agency’s request, the Migration Advisory Committee (MAC) has recently suggested a number of options aimed at reducing settlement from skilled workers. Rather than a ‘do nothing’ option that the MAC mentioned in its response, which would nevertheless see settlement levels drop due to increasingly stricter requirements to enter the UK, the UK Border Agency has announced that it will likely introduce a minimum salary as a requirement for Indefinite Leave to Remain (ILR).

The range within which the minimum salary should be set has been outlined as £31,000 – £49,000. The MAC report does suggest that some exceptions should be allowed to this bracket, so that key industry sectors with comparatively low salaries (e.g. nurses) are not excluded from settlement. However, the UK Border Agency has not yet clarified whether such exceptions will be worked into the new rules.

The UK Border Agency states that this salary requirement for settlement will not have any direct affect until 2016, five years after its introduction, as Tier 2 migrants need to have completed five years in the UK before they can apply for ILR.

It is unclear when in 2011 the new rules will be considered to have started. There was mention, in the initial consultation document published in June 2011, of new settlement rules being backdated to April 2011. The new rules would therefore include any Tier 2 migrants who entered the UK under the ‘cap’, in place since April 2011. However, the UK Border Agency’s statement on 8^th November outlines that the required income threshold will be set for migrants at the time of entry to the UK. In this case, it should not be possible for the requirements to be backdated and should only affect Tier 2 migrants who enter the UK once the new rules have been clarified and introduced. We await further clarification on this point.

Tier 2 ICT visas are already capped at five years, after which the individual must leave the UK. Those Tier 2 General migrants who do not meet the salary requirement would also be required to leave the UK after this five year period is complete.

If you’d like us to carry out a free initial assessment of your case for Indefinite Leave to Remain, please contact us.

Clients and prospective clients should please take note of the following. UK Work Permits Ltd will be closed for business between 5.30pm Friday 23rd December 2011 and 9.00am Tuesday 3rd January 2012.

The Tier 1 (Post Study Work) scheme closing in April 2012 – don’t miss your chance to apply!

The Tier 1 (Post Study Work) scheme is aimed at graduates from UK institutions who wish to stay in the UK after completing their course of study. The visa is issued for two years and offers the most freedom of any current work-related visa: you can work as self-employed, as an employee in any position or a combination of the two. For more information, see our main Tier 1 (Post Study Work) article here.

We can normally obtain a Premium appointment at the Croydon Public Enquiry Office within 3 – 4 weeks. A decision on the application is then made within 48 hours of submission, compared to a processing time of around 10 – 12 weeks for a postal application. We suspect that the processing time for postal applications will increase further, due to the increased number of applications submitted before the scheme is abolished.

Please note that the closure of the category will be final. Tier 1 (Post Study Work) applications can usually be made up to 12 months after the date of award, however closure of the category will cut short this window of opportunity for potential applicants.

You don’t need to have your original certificate to make the application – we can provide you with a ‘tried and tested’ template for the letter from your University, as part of our service, to ensure that you meet the UK Border Agency’s strict requirements.

The application must be made by April 2012, but we recommend that you contact us as soon as possible, as our Premium appointment requests are filling up quickly.

Alternatively, we can help with a postal application, with a processing time of around 10 – 12 weeks. It is important that you get this application right first time as the deadline approaches – there may not be time to reapply if you initially make an unsuccessful application on your own.

Please contact us for a free initial assessment of your case.

Taiwan joins the Youth Mobility Scheme

The Tier 5 Youth Mobility Scheme allows nationals of participating countries to spend up to 2 years in the UK, during which time they are free to work.

Taiwan is now a participant of the Youth Mobility Scheme, since joining in November this year.

The full list of nationalities that can participate in the Youth Mobility Scheme is:

• Taiwan;
• Japan;
• Australia;
• Monaco;
• Canada;
• New Zealand; and
• British Nationals (Overseas).

There is a limit of 1000 places on the scheme in 2012 for Taiwanese nationals.

1000 application places will be distributed at random within the pool of people who express their interest in the scheme. To officially express interest, Taiwanese nationals should contact the National Youth Commission through their website between 1^st December and 20^th December 2011. From this pool of people, 1000 will be contacted with details of how to apply.

Changes for Japanese nationals

There is a limit of 1000 places on the scheme in 2012 for Japanese nationals.

In previous years, application places had been allocated on a first come first served basis. However, this year, the 1000 application places will be distributed at random within the pool of people who express their interest in the scheme.

To officially express interest, Japanese nationals should email YMS2012-APPOINTMENT@vfshelpline.com between 12pm on Wednesday 4^th January and 12pm on Friday 6^th January 2012 (Japan time). From this pool of people, 1000 will be contacted with details of how to apply.

Japanese nationals living outside Japan should follow the same process to apply for a place.

To find out if you may qualify for the Youth Mobility Scheme, please contact us.

The UK Border Agency has announced that they are today laying regulations before Parliament which will result in almost all visa applications becoming ‘Biometric’.

If a visa application is ‘Biometric’, the applicant is required to give their fingerprints and have a photo taken as part of the application process. Any dependants (partner and child/ren) will also need to attend a Biometric enrolment centre to give their fingerprints and have a photo taken.

Several visa applications are already ‘Biometric’, such as Tier 1 and Tier 2 applications, Transfer of Conditions applications and Spouse visa applications.

The UK Border Agency wants to extend the ‘Biometric’ requirement to all visa types issued from inside the UK, where the visa will have a validity of 6 months or more.

These changes will likely be introduced from 29^th February 2012 and mean that applicants will be required to attend a Biometric enrolment centre to give their Biometric data as part of the visa application process.

The main application that these changes will affect is Indefinite Leave to Remain. Currently, ILR applicants are not required to give their fingerprints or have a photo taken. This means that we can submit applications on behalf of our clients without them attending the appointment at all. At present, we can use one of our pre-booked appointments on a Wednesday or Friday to make an application on our clients’ behalf, and the application is considered and the decision made without the client ever needing to attend in person. This will no longer be possible once ILR has become ‘Biometric’.

Further, our previous experience with applications that have become ‘Biometric’ suggests that once ILR changes in this way, there will be a significant reduction in the number of premium appointments available to applicants.

In addition, once Indefinite Leave to Remain becomes a ‘Biometric’ application, applicants will no longer be issued with a sticker in their passport showing their new ILR status. They will instead receive a separate Biometric Residence Permit (BRP), which is a credit card sized ID card. There will no longer be any indication in the person’s passport of their status in the UK. This means that the individual will need to present their passport and their BRP card together whenever they are required to prove they have a valid visa – at the border or to a potential employer, for example. If the applicant loses their BRP card, an application must be made for a replacement, which incurs a further cost.

If you would like to make your Indefinite Leave to Remain application under the current system, with the advantages of:

• UK WP attending the appointment on your behalf;
• Appointment availability at short notice; and
• Receiving a sticker in your passport showing your ILR status,

You will need to apply before the changes are introduced on 29^th February 2012.

We have a number of pre-booked appointments on Wednesday and Fridays, which we can use for Indefinite Leave to Remain applications. We usually have an available Premium Same Day appointment within 1 – 2 weeks. If you’d like to find out if you’re eligible to apply for Indefinite Leave to Remain, please contact us.

The UK Border Agency has recently released a public consultation, looking at the visa categories open to family members of British citizens and other visa holders.

It is important to note that the possible changes outlined below are only at consultation stage. No changes will be finalised before the consultation closes on 6^th October.

Changes to the Immigration Rules are usually introduced in April of each year, so we expect that any changes adopted from this consultation will come into force in April 2012.

Spouses or partners of British citizens or people settled here

Spouse visa maintenance

Currently the spouse of a British citizen or person settled here is able to apply for a 27 month spouse visa. They must meet an English language requirement, show the relationship is subsisting and demonstrate that they have access to finances of at least income support level – around £100 per week for the couple.

The UKBA plans to introduce new clear minimum income requirements for sponsors of spouse visa holders. The UKBA plans to take into account only the income and savings of the sponsor (the British or settled person). They may stop an individual from sponsoring a spouse visa if they have claimed benefits in the twelve months prior, as this could demonstrate they are unable to support themselves.

Settlement from a spouse visa

Currently, non-EEA Nationals who have lived outside the UK for four years with their British spouse or civil partner are able to apply for Indefinite Leave to Enter immediately. This applies only to spouse or civil partners. This provision allows the spouse or civil partner to enter the UK with no time limit on their stay, as the relationship has already proven to be durable outside the UK.

Other applicants (spouses, civil partners, unmarried or same sex partners) can apply for a spouse visa, which is issued for 27 months. After two years in the UK, they can apply for Indefinite Leave to Remain.

The UKBA plans to abolish Indefinite Leave to Enter for spouses. All spouses* will be required to complete a five year probationary period. Only after five years in the UK, if the relationship is still subsisting, will the spouse* be able to apply for Indefinite Leave to Remain.

The UKBA is also considering introducing a requirement that couples demonstrate their attachment to the UK. The couple should have more ties to the UK than to any other country. This may be measured by the duration of each person’s residence in the UK, any qualifications undertaken in the UK and work or children in the UK.

Other dependant relatives of British citizens or people settled here

English language requirement for adult dependants

Dependants, other than spouses*, do not currently have to demonstrate any English language ability when applying for limited leave.

The UKBA plans to introduce an English language requirement for dependants aged 16 – 64. These applicants would need a basic level of English (level A1 of the CEFR) in order to make a successful dependant visa application.

Settlement for adult dependants

Adult dependants of British citizens or people settled here are currently able to apply for Indefinite Leave to Enter. This allows them to enter the UK with no time limit on their stay.

The UKBA plans to abolish Indefinite Leave to Enter for adult dependant relatives of British citizens or people settled here. All adult dependant relatives will be required to complete a five year probationary period. Only after five years in the UK, if the relative remains dependant on the sponsor, will they be able to apply for Indefinite Leave to Remain.

Dependant relatives of PBS migrants

English language requirement for dependants of PBS migrants

Currently dependants do not have to demonstrate any English language ability when applying for limited leave. Dependants aged 18 – 64 only need to demonstrate their English language ability at the time of their Indefinite Leave to Remain application.

The UKBA plans to introduce an English language requirement for dependants aged 16 – 64. These applicants would need a basic level of English (level A1 of the CEFR) in order to make a successful dependant visa application.

Settlement for adult dependants of PBS migrants

Currently partners of PBS migrants need to complete two years in the UK before they can be included on the main applicant’s Indefinite Leave to Remain (ILR) application.

The UKBA plans to change the qualifying period for ILR for spouses of PBS migrants. All dependant partners will be required to complete a five year probationary period. Only after five years in the UK, if the relationship is subsisting, will they be able to apply for Indefinite Leave to Remain.

ECHR Article 8

Article 8 of the European Convention on Human Rights is concerned with respect for private and family life.

This right, however, is not an absolute right. This means, that where other interests are in opposition to this right, it can be ‘overruled’. The government is currently looking at when it would be necessary to interfere with a person’s right to private and family life.

The government states that it may be appropriate to interfere with this right when it is in the public interest, e.g. when it is necessary for public protection or would be in the country’s economic interest.

The government will be looking at how to balance the individual’s right to private and family life, and public protection. Once these decisions have been made, the Immigration Rules will be amended to reflect them.

*Where ‘spouse*’ is used in this article, the term covers spouses, civil partners, unmarried partners and same sex partners.

The qualifying period for Indefinite Leave to Remain (ILR) for spouse visa holders is two years. Applications can be made up to 28 days before the two year period in the UK is completed.

The two year qualifying period can be completed entirely on a spouse visa, or can include time previously spent on a PBS dependant visa.

The provision for time spent on a PBS dependant visa to contribute to the qualifying period is outlined in the Immigration Rules. However, this section has been mis-drafted, and currently contains a significant error. We have brought this mistake to the UK Border Agency’s attention and they are now in the process of correcting the wording.

The UK Border Agency Policy Team has categorically confirmed that the two year qualifying period for spouse visa holders can include time spent on a PBS dependant visa, despite the outstanding mistake in the Rules.

We have been assured that all caseworkers will be informed of the correct interpretation of the Immigration Rules, as outlined above, and that applications will be decided accordingly while the Rules are being amended.

Who does this apply to?

PBS dependant partners need to have spent two years in the UK with the main applicant in order to be included on their ILR application. If the dependant partner has not been in the UK for two years when the main applicant applies for ILR, they cannot be included on the application. When the main applicant is granted ILR, the dependant partner would need to apply for a spouse visa.

If you have switched from a PBS dependant visa to a spouse visa, and in total have completed two years in the UK, you may be able to apply for ILR now. To clarify, you do not need to have spent two years on the spouse visa itself, as long as your time in the UK with the previous PBS dependant visa and the current spouse visa totals two years.

What should I do?

If you currently have a spouse visa, and have almost completed two years in the UK with either the spouse visa alone, or in combination with time spent on a PBS dependant visa, you may be eligible to apply for ILR now.

We would be happy to carry out a free initial assessment of your case, to offer you personalised advice. Please contact us for up to date information and guidance.

The UK Border Agency has recently released a public consultation, looking mainly at routes to settlement.

It is important to note that the possible changes outlined below are only at consultation stage. No changes will be finalised before the consultation closes on 9^th September.

Changes to the Immigration Rules are usually introduced in April of each year, so we expect that any changes adopted from this consultation will come into force in April 2012.

The UKBA has stated that any changes will apply to people who first entered the affected categories from April 2011 onwards, thereby affecting a small number of people already in the UK as well as people entering the UK after the changes have been implemented. We await further clarification on this point.

Tier 1

The UKBA has proposed that limited leave (visas with expiry dates) under Tier 1 be restricted to 5 years in total. Migrants will continue to qualify for settlement (ILR) as they do currently. However, any migrants that do not qualify for settlement would not be able to extend their temporary leave. They would therefore need to leave the UK after 5 years.

Tier 2

The UKBA has proposed that Tier 2 become a temporary category, with Tier 2 migrant having no automatic route to settlement (ILR) in the UK. They suggest that the ‘best’ Tier 2 migrants could either be given a different visa from the start, leading to settlement, or be allowed to switch into a new category after 3 years in the UK. In both cases, the qualifying period for ILR would remain 5 years. The UKBA has suggested several possible methods of choosing which Tier 2 migrants should be able to qualify for settlement, including a lottery system or a points test. There may also be a limit on the number of people allowed to qualify for settlement.

Any migrants who were not chosen to enter or switch into the new category leading to settlement would have their total leave under Tier 2 capped at 5 years. Therefore, any Tier 2 migrants not selected to settle would have to leave the UK at the end of 5 years.

Furthermore, the UKBA suggests that these migrants would then have to spend a minimum period of 12 months outside the UK before applying for another Tier 2 visa.

As outlined above, the UK Border Agency has stated that those who entered Tier 2 before April 2011 should not be affected by any potential changes brought into force after the consultation.

English language for dependants

The UKBA proposes to introduce an English language requirement for dependants, where the main applicant’s visa leads to settlement. The suggested level would be A1 of the CEFR; a basic English language level.

Potentially, dependants of Tier 2 migrants entering with the new visa leading to settlement, or switching into the new route for settlement after 3 years in the UK, would have to demonstrate their English language ability at this stage.

Tier 4

There are no further proposed changes to Tier 4, as it does not lead to settlement.

Tier 5

The UKBA has suggested capping the total leave of migrants in the UK under the Tier 5 temporary workers category to 12 months. Currently, some Tier 5 leave can be extended for up to 6 years.

In addition, the UKBA proposes to remove the provision for dependants to join Tier 5 migrants in the UK. Currently, the spouse and children of some Tier 5 migrants are able to join them in the UK, and are usually free to work in the UK.

The Tier 5 Youth Mobility Scheme will be unaffected by these proposals.

Overseas domestic workers – in private households

The UKBA has suggested that most overseas domestic workers should be granted entry to the UK as visitors, thereby limiting their stay to 6 months. Only overseas domestic workers employed by Tier 1 and Tier 2 migrants would be allowed to stay for a longer period, with their leave being capped at 12 months. Currently, overseas domestic workers can extend their stay in the UK, and can qualify for settlement after 5 years.

In addition, the UKBA proposes removing the provision for dependants to join overseas domestic workers. Currently, the spouse and children of overseas domestic workers in private households are able to join them in the UK, and are usually free to work in the UK.

UK Ancestry

There are no proposed changes to the UK Ancestry category.

10 years Long Residence route to Indefinite Leave to Remain

The 10 years Long Residence route has not been mentioned in the UKBA’s current consultation document. However, it has previously been made clear that the UKBA would like to abolish this route to settlement. Unfortunately, there is no confirmation at this stage of whether the 10 years Long Residence route to settlement will remain unchanged.

Your opinion

This consultation is open to the public, and anyone is able to respond to the UKBA’s proposals.

The full consultation document is available here.

The response form is available here.

UK Work Permits would advise anyone who wishes to apply for a visa in any of the affected categories to apply as soon as possible. Please contact us for up to date information and guidance.