It's that time of year again! Following the Statement of Changes in Immigration Rules dated 26 February 2015, there are numerous changes to the UK Immigration Rules, procedures and application
It's that time of year again! Following the Statement of Changes in Immigration Rules dated 26 February 2015, there are numerous changes to the UK Immigration Rules, procedures and application fees. The majority of these changes took effect yesterday. We highlight the most significant changes below:
Visitor Rules
The Home Office has announced changes to the Visitor visa category which will affect those wishing to visit the UK from outside the European Economic Area ("EEA"). The previous 15 routes available has been consolidated into just four visitor routes: (i) visitor (standard); (ii) visitor for marriage or civil partnerships; (iii) visitor for permitted paid engagements; and (iv) transit visitor.
The visitor (standard) sub-category now comprises some of the following existing routes: general; business; sport; entertainer; visitors for private medical treatment; and prospective entrepreneur. In practice, this means that individuals will be able to undertake a wide range of activities if entering under the visitor (standard) route than previously permitted. There are also new activities added to the "Permitted Activities" that an individual can undertake whilst visiting the UK. However, the message remains the same: visitor visas will only be valid for a period of no more than six months and visitors will still be prohibited from taking employment in the UK.
NHS Surcharge
Following secondary legislation, the "immigration health surcharge" is being rolled out. Migrants applying for a visa of more than six months’ duration will now be required to pay the surcharge in advance, at the same time as their visa application fee. Failure to pay the surcharge will result in a refusal. The surcharge is £150 per year for students and £200 per year for other applicants. However, Tier 2 (Intra Company Transfer) migrants and nationals from Australian and New Zealand are exempt from the surcharge but must still complete the online process.
Therefore, a single Tier 2 (General) migrant applying for a five year visa will be required to pay an upfront health surcharge of £1,000. Add to this a number of dependants (for each of whom the charge will be payable) and it will represent a significant increase in the cost of obtaining a visa. The NHS surcharge will also apply to migrants applying to renew their leave to remain from within the UK. Employers may need to factor in these costs and consider wider tax implications.
Biometric Residence Permits for Non-EEA Nationals
The Home Office has started to implement the issuance of Biometric Residence Permits ("BRP") to overseas applicants applying for leave to enter beyond six months (in accordance with EC Regulation). The implementation has started in Pakistan and is planned to be carried out in four phases country by country. The scheme is expected to be rolled out in Australia and the USA by 31 May 2015 and completed for the rest of the world by 31 July 2015.
Once the new process has been rolled-out, applicants from overseas will receive a travel vignette with only 30 days validity instead of receiving a visa sticker detailing their full duration and purpose. Applicants will subsequently need to visit a designated UK-based Post Office within ten days of arrival to the UK to collect their BRP. As a result of this change, applicants will need to have greater certainty around their travel date and where they expect to stay upon arrival in the UK. The consequence of delaying arrival in the UK may involve a financial penalty or worse cancellation of their leave. It also means that employers must not only check the travel vignette upon arrival in the UK but must also ensure that the issuance of the migrant's BRP confirms their right to work in the UK.
Changes to English Language Test
The list of Approved Secure English Language Tests and Test Centres has been updated. Many of the previously accepted tests have been removed (including Pearson) and some new providers added to the list. The introduction of a list of approved test centres is to ensure appropriate security features in the booking, administration and invigilation procedures. A transitional period has been introduced to help migrants who have taken their test ahead of these changes - providing that the test was passed before 6 April 2015, the test results may be used as part of immigration applications until 6 November 2015.
Tier 1 (Investor)
Three significant changes have been introduced for Tier 1 (Investors). The most important change now requires prospective investors to open a UK-regulated investment account before making an initial application. Applicants will no longer need to invest additional capital if they sell part of their investment at a loss – they need only reinvest the sale price of the investments to maintain the minimum £2 million investment. Buying and selling investments will continue to be permitted, providing the investor does not withdraw any capital. The other important change reflects the minimum age of applicants in this category rising from 16 to 18.
Tier 1 (Entrepreneur)
A number of changes are in place since 6 April 2015. The "genuineness" test is extended to applications for extensions and Indefinite Leave to Remain. This is likely to lead to a higher number of refusals and careful review of each application should take place before submission. All initial applications must now submit a business plan (it was previously always recommended but not mandatory). Applicants who have held the qualifying funds for fewer than 90 days prior to the date of application must now provide evidence of all third-party sources of those funds. Furthermore, clarifications have been made to the rules regarding how investment funds may be spent and the restriction on engaging in businesses principally concerned with property development or property management.
Tier 1 (Graduate Entrepreneur)
Applicants in this category are being restricted from engaging in businesses principally concerned with property development or property management, for consistency with the Tier 1 (Entrepreneur) category.
Tier 1 (Exceptional Talent)
Migrants with exceptional talent were previously granted leave to enter or leave to remain for five years. From 6 April 2015, migrants applying under the Exceptional Talent category are being given the option of how much leave they wish to apply for (up to a maximum of five years or five years and four months for entry clearance). This change is being introduced to prevent migrants being penalised by the NHS surcharge if they intend to be in the UK for shorter periods.
Tier 1 (General)
The Tier 1 (General) category is now closed to extension applications. Migrants with a Tier 1 (General) visa who wish to remain in the UK may apply for Indefinite Leave to Remain until 6 April 2018. Additionally, restrictions have been placed on the ability of Tier 1 (General) migrants to switch into Tier 1 (Entrepreneur) unless that have already established a UK business. However, a Tier 1 (General) migrant may still apply for Entry Clearance without such a restriction.
Tier 2
The key changes to the Tier 2 category are listed below:
UK Super Priority Visa Service
The super priority visa service was launched in New York in March 2015 and enables customers to receive a decision on their immigration application within 24 hours. The service costs an additional USD $936 per applicant and is available to eligible customers who can attend their biometric appointment in person at the British Consulate-General in New York. Applicants must book a biometrics appointment at the British Consulate-General 48 hours in advance. There are currently five slots available every day on Monday to Thursday from 8:30 am to 9:30am.
Eligible customers (and their dependants) include those applying for a tourist and short stay (visitor) visa; those applying under Tier 2 and Tier 5 of the Points Based System with authority to be living in the USA; and Tier 5 (Temporary worker – Creative and Sporting) or Tier 5 (Youth Mobility Scheme) applicants who are currently in the USA for a similar purpose to the activity proposed to be undertaken in the UK.
Loss of Appeal Rights
Refusals of all applications under the Points Based System and all categories under the Immigration Rules no longer have the right of appeal. The right of appeal is replaced by Administrative Review.
For more information on any of the above topics, please contact Lynn McCloghry.
Visitor Rules
The Home Office has announced changes to the Visitor visa category which will affect those wishing to visit the UK from outside the European Economic Area ("EEA"). The previous 15 routes available has been consolidated into just four visitor routes: (i) visitor (standard); (ii) visitor for marriage or civil partnerships; (iii) visitor for permitted paid engagements; and (iv) transit visitor.
The visitor (standard) sub-category now comprises some of the following existing routes: general; business; sport; entertainer; visitors for private medical treatment; and prospective entrepreneur. In practice, this means that individuals will be able to undertake a wide range of activities if entering under the visitor (standard) route than previously permitted. There are also new activities added to the "Permitted Activities" that an individual can undertake whilst visiting the UK. However, the message remains the same: visitor visas will only be valid for a period of no more than six months and visitors will still be prohibited from taking employment in the UK.
NHS Surcharge
Following secondary legislation, the "immigration health surcharge" is being rolled out. Migrants applying for a visa of more than six months’ duration will now be required to pay the surcharge in advance, at the same time as their visa application fee. Failure to pay the surcharge will result in a refusal. The surcharge is £150 per year for students and £200 per year for other applicants. However, Tier 2 (Intra Company Transfer) migrants and nationals from Australian and New Zealand are exempt from the surcharge but must still complete the online process.
Therefore, a single Tier 2 (General) migrant applying for a five year visa will be required to pay an upfront health surcharge of £1,000. Add to this a number of dependants (for each of whom the charge will be payable) and it will represent a significant increase in the cost of obtaining a visa. The NHS surcharge will also apply to migrants applying to renew their leave to remain from within the UK. Employers may need to factor in these costs and consider wider tax implications.
Biometric Residence Permits for Non-EEA Nationals
The Home Office has started to implement the issuance of Biometric Residence Permits ("BRP") to overseas applicants applying for leave to enter beyond six months (in accordance with EC Regulation). The implementation has started in Pakistan and is planned to be carried out in four phases country by country. The scheme is expected to be rolled out in Australia and the USA by 31 May 2015 and completed for the rest of the world by 31 July 2015.
Once the new process has been rolled-out, applicants from overseas will receive a travel vignette with only 30 days validity instead of receiving a visa sticker detailing their full duration and purpose. Applicants will subsequently need to visit a designated UK-based Post Office within ten days of arrival to the UK to collect their BRP. As a result of this change, applicants will need to have greater certainty around their travel date and where they expect to stay upon arrival in the UK. The consequence of delaying arrival in the UK may involve a financial penalty or worse cancellation of their leave. It also means that employers must not only check the travel vignette upon arrival in the UK but must also ensure that the issuance of the migrant's BRP confirms their right to work in the UK.
Changes to English Language Test
The list of Approved Secure English Language Tests and Test Centres has been updated. Many of the previously accepted tests have been removed (including Pearson) and some new providers added to the list. The introduction of a list of approved test centres is to ensure appropriate security features in the booking, administration and invigilation procedures. A transitional period has been introduced to help migrants who have taken their test ahead of these changes - providing that the test was passed before 6 April 2015, the test results may be used as part of immigration applications until 6 November 2015.
Tier 1 (Investor)
Three significant changes have been introduced for Tier 1 (Investors). The most important change now requires prospective investors to open a UK-regulated investment account before making an initial application. Applicants will no longer need to invest additional capital if they sell part of their investment at a loss – they need only reinvest the sale price of the investments to maintain the minimum £2 million investment. Buying and selling investments will continue to be permitted, providing the investor does not withdraw any capital. The other important change reflects the minimum age of applicants in this category rising from 16 to 18.
Tier 1 (Entrepreneur)
A number of changes are in place since 6 April 2015. The "genuineness" test is extended to applications for extensions and Indefinite Leave to Remain. This is likely to lead to a higher number of refusals and careful review of each application should take place before submission. All initial applications must now submit a business plan (it was previously always recommended but not mandatory). Applicants who have held the qualifying funds for fewer than 90 days prior to the date of application must now provide evidence of all third-party sources of those funds. Furthermore, clarifications have been made to the rules regarding how investment funds may be spent and the restriction on engaging in businesses principally concerned with property development or property management.
Tier 1 (Graduate Entrepreneur)
Applicants in this category are being restricted from engaging in businesses principally concerned with property development or property management, for consistency with the Tier 1 (Entrepreneur) category.
Tier 1 (Exceptional Talent)
Migrants with exceptional talent were previously granted leave to enter or leave to remain for five years. From 6 April 2015, migrants applying under the Exceptional Talent category are being given the option of how much leave they wish to apply for (up to a maximum of five years or five years and four months for entry clearance). This change is being introduced to prevent migrants being penalised by the NHS surcharge if they intend to be in the UK for shorter periods.
Tier 1 (General)
The Tier 1 (General) category is now closed to extension applications. Migrants with a Tier 1 (General) visa who wish to remain in the UK may apply for Indefinite Leave to Remain until 6 April 2018. Additionally, restrictions have been placed on the ability of Tier 1 (General) migrants to switch into Tier 1 (Entrepreneur) unless that have already established a UK business. However, a Tier 1 (General) migrant may still apply for Entry Clearance without such a restriction.
Tier 2
The key changes to the Tier 2 category are listed below:
- The Tier 2 (General) cap remains at 20,700 for the twelve month period starting 6 April 2015 but the monthly Restricted Certificate of Sponsorship allocation has been rebalanced by UK Visas and Immigration to approve up to 2,550 Restricted Certificate of Sponsorship requests in April 2015 and up to 1,650 in each subsequent month.
- The annual minimum salary thresholds and SOC Code salary rates for Tier 2 have increased by 1.2% (in line with changes in average weekly earnings for resident workers). For example, £20,800 is now the salary to qualify for Tier 2 (General) whilst Tier 2 (Intra Company Transfer) Long Term Staff has risen to £41,500. The "high earner" threshold has also increased from £153,500 to £155,300.
- The twelve month "cooling off period" will no longer apply to Tier 2 migrants assigned a Certificate of Sponsorship for three months or less. This is particularly good news for clients that wish to send overseas assignees to the UK for short periods.
- There have been some changes to the Shortage Occupation List in the health sector. The Government intends to implement further changes following the MAC's (Migration Advisory Committee) recommendations relating to graduate occupations in the digital technology sector.
- For intra company transfers, the qualifying twelve months prior employment may include time spent lawfully employed by a group company in the UK as well as overseas.
UK Super Priority Visa Service
The super priority visa service was launched in New York in March 2015 and enables customers to receive a decision on their immigration application within 24 hours. The service costs an additional USD $936 per applicant and is available to eligible customers who can attend their biometric appointment in person at the British Consulate-General in New York. Applicants must book a biometrics appointment at the British Consulate-General 48 hours in advance. There are currently five slots available every day on Monday to Thursday from 8:30 am to 9:30am.
Eligible customers (and their dependants) include those applying for a tourist and short stay (visitor) visa; those applying under Tier 2 and Tier 5 of the Points Based System with authority to be living in the USA; and Tier 5 (Temporary worker – Creative and Sporting) or Tier 5 (Youth Mobility Scheme) applicants who are currently in the USA for a similar purpose to the activity proposed to be undertaken in the UK.
Loss of Appeal Rights
Refusals of all applications under the Points Based System and all categories under the Immigration Rules no longer have the right of appeal. The right of appeal is replaced by Administrative Review.
For more information on any of the above topics, please contact Lynn McCloghry.