On 7 December 2017 the government announced changes to the Immigration Rules. Below is a summary of the main changes:
Changes to the points based system categories which will come into effect from 11 January 2018
Tier 2 (General)
- Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently non-PhD students cannot apply to switch within the UK until they have received their final results.
- Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.
- The start date for employment cannot be put back by more than 28 days after entry clearance or leave to remain has been granted, or the start date as stated on the Certificate of Sponsorship, if later. This provision clears up some ambiguity which existed when the provision was first introduced in the Tier 2 sponsor guidance.
- Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.
- Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.
- A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change. The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.
Changes to indefinite leave to remain
- The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. This will not have retrospective effect and therefore will only apply to absences from the UK during periods of leave granted under the rules in place from 11 January 2018. In practice this means that dependants will need to maintain schedules of absences from the UK from 11 January 2018.
- A change has been made to provide flexibility relating to how the end date of the continuous period for settlement is ascertained. This will be one of the following, whichever is most beneficial to the applicant:
- The date of application;
- The date of decision; or
- Any date up to 28 days after the date of application
Tier 1 entrepreneur
- The job creation rules currently require jobs to have existed for at least 12 months during the applicant’s most recent period of leave. A change is being made to enable applicants to apply even if their current leave was granted less than 12 months ago; in such cases the jobs must have existed for at least 12 months before the date of the current application.
- Applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
- An amendment is being made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
- An amendment is being made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the business, rather than the period before jobs were created. This provides a clearer demonstration of the applicant’s impact on the business.
- Clarifications are being made to make clear that, where funds are currently held by another business, which is not the business the applicant is using to score points, that business is considered to be a third party providing funding.
- Applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.
- To prevent recycling of funds between applicants, a change is being made so that applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. Who is considered to be a close family member will depend on the facts in an individual application.
- On 19 November 2015, Statement of Changes HC 535 introduced a requirement that investments made in the form of directors’ loans must be evidenced through readily identifiable transactions in applicants’ business bank statements. A change is being made so that this requirement only applies to investments made after 19 November 2015.
- A provision is being removed because it contradicts the rule requiring applicants to be registered with Companies House within 6 months of the date the applicant entered the category. The removed provision requires that such registration has to be effected within 8 months of the same date.
- A clarification is being made to the rule which excludes buying the business from its previous owner from being considered as a qualifying investment, to clarify that this means buying any business from its previous owner.
- Minor amendments are being made to the requirements concerning format and contents of letters (used as evidence) for consistency.
Tier 1 (Investor)
- Investors who entered the category before 6 November 2014 may rely on the un-mortgaged portion of their main home. Changes are being made to this provision to clarify that the property must be the applicant’s main home, and also to provide, where the property is co-owned in a tenancy in common, that the investor’s share, and only the investor’s share, may count.
Tier 1 (Exceptional Talent)
- The number of spaces available under this route will double from 1,000 to 2,000 per year.
- the 1,000 extra spaces will be allocated according to need.
- Those endorsed under the exceptional talent criteria will be able to apply for indefinite leave to remain after three years.
- Simpler application process for applicants who hold specific peer reviewed fellowships or who have been appointed to senior academic or research posts.
Visitors cannot study at an academy or a school maintained by a Local Authority.
Criminal record certificates
Changes have been made to the wording relating to the obtaining of criminal record certificates, to say the certificates must be obtained from each country where the applicant has been present for 12 months or more in the last 10 years. The wording in the rules has changed from ‘resident’ to ‘present’ and therefore a person who has been present in a country for 12 months or more cumulatively over a 10 year period will need to apply for a criminal record certificate from that country.
Changes relating to electronic entry clearance
The Government proposes to commence issuing entry clearance in electronic form. This will initially be trialled with specified groups with a view to general introduction of entry clearance in electronic form at a subsequent date.
Applicants who hold an entry clearance issued in electronic form will not be required to present such an entry clearance to an Immigration Officer on arrival in the UK. The issue of such an entry clearance will be checked electronically.