Immigration Vanish

This month saw another round of changes introduced into the Immigration Rules. Some of these changes are minor and of a technical nature, other changes are more significant. In this blog post, Jacqueline Moore, our Deputy Head considers the most significant changes which affect those in the UK under the Points Based System.

Tier 2 (General) – Settlement Applications

  • Change in Calculation of absences for settlement - the most controversial of the changes relates to how absences are calculated. The rules previously prohibited absences of 180 days or more in any of the five consecutive 12-month calendar periods preceding the date of the application. This was interpreted as falling in a single fixed 12 month period. Applicants are now limited to 180 days “in any 12 calendar months” during the period. This rolling 12 month period may catch migrants who are preparing for settlement having arranged their leave under the previous regime.  It is worth noting that representations are being made by Immigration Lawyers Practitioners Association (ILPA) to the Home Office of this retrospective change. We will keep you updated if this changes.
  • Change in the requirement to have been continuously employed - a very welcome change has been the removal of the requirement to have been continuously employed throughout the 5 year period. The explanation provided by the Home Office is that this is unnecessary due to the curtailment procedure.   This is a very positive change, as previously applicants who had changed employers faced a refusal where there was more than 60 days between the end of their employment with their previous employer and the date they made their change of employment application.
  • Introduction of Absence Requirement for dependents - another significant and controversial change has been to introduce an absence requirement to dependants who are granted leave after 11 January 2018. Partners will now require to keep a schedule of absences and be careful not to be outside the UK for more than 180 days in any rolling 12 month period. Absences outside the UK which occurred during periods of leave granted prior to 11 January 2018 will not be considered as absences towards the 180 day total.
  • Extension of West African Ebola crisis absence disregard - The rules have now been extended to disregard any absences in respect of time spent assisting with any national, humanitarian or environmental crisis.

Tier 2 (General) - Other Changes

  • Expansion of the Resident Labour Market Test (RLMT) Exemption – this has been extended to include 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.
  • Clarification on what changes are permitted to a start date - The changes have brought about a clarification to the existing rules. A Tier 2 (General) migrant’s start date cannot be changed to more than 28 days from the later of
  • The date on which their entry clearance or leave to remain is granted, OR
  • The start date specified on the CoS, or as appropriately reported by the sponsor before entry clearance or leave to remain is granted

If a change to a start date leads to a later date than above, a new Tier 2 (General) application and a new CoS would be required. To employ in breach of this would be grounds for revocation of a Sponsor licence.

  • Change to Criminal Record Overseas certificate - Tier 2 (General) migrants and their dependants applying for posts in educational categories are now required to provide a criminal record certificate as part of their application in respect of every country where they have been “present” for 12 months or more (either continuously or in total) in the last 10 years. The previous rules imposed the requirement only where applicants were “resident” in an overseas country. 

Changes to Tier 1 (Entrepreneur)

This route, widely considered to be the most complex category in which to switch for students has been subjected to a further series of changes which the Home Office state are designed to simplify the route.

  • Applicants will require to declare both their settled employees paid hours as well as the hourly rate
  • The job creation rules previously required 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 job must have existed 12 months before the date of the current application.
  • A prohibition has been introduced on funds being made available by other Tier 1 (Entrepreneur) Migrants or that migrant’s close family members. This is to prevent the “re-cycling of funds”, a long held Home Office concern.

Changes to Tier 1 (Exceptional Talent)

Good news for students considering this route with the quota doubled from 1000 to 2000 places.  Further, once an endorsing body has used up their allocations they can receive further allocations from the pool. The route has also become more attractive with the right of accelerated settlement, i.e. settlement after 3 years for those endorsed on the basis of Exceptional Talent. Whilst all this is very welcome news, it is worth noting that is an under-subscribed route with the 1000 places previously not being utilised, and an overall increase in places being likely to have limited effect.

Changes to Tier 2 (General)

  • In a further welcome move, students can switch into Tier 2 (General) once they have completed their eligible studies instead of having to wait until they have passed their course.

Changes for Tier 4 (Migrants)

  • Part-time students - Students can now obtain Tier 4 leave in respect of part-time courses, providing studies lead to a qualification at RQF Level 7 or above. Students with leave under this heading cannot work, undertake a course-related work placement nor bring dependants.
  • Short-term students - the minimum age for a short-term student has been reduced from 18 to 16. This is to enable individuals aged 16 or over to undertake short-term English language study for up to 11 months and to require students aged 16 or over to meet the genuineness test.

If you need help with an immigration application then get in contact with a member of our Immigration team either in Edinburgh or in Glasgow.