NEWSLETTER No. 38 – March 2012

NEWSLETTER No. 38 – March 2012

AUSTRALIA – JULY 2012 INTRODUCTION OF SKILLSELECT

At a recent seminar at the Australian High Commission, a detailed presentation was unveiled on the new selection model for skilled migration, which will be implemented on 1st July 2012.

The new system will be called “SkillSelect” and will be the standard process to apply for residence through all the General Skilled categories. This will not affect any applications currently in the system or those who apply by 30 June 2012.

SkillSelect will also be available for migrants who wish to be sponsored by an Australian employer on a work visa, such as subclass 457.

Before one can apply for permanent residence through SkillSelect, a migrant must have received a positive Skills Assessment and meet the basic entry requirements on age, English language, recent experience etc. The Skills Assessment still remains a vitally important and time consuming part of the process.

Prospective migrants must then submit an Expression Of Interest (EOI) and can then subsequently be invited by the department to make a skilled migration visa application. These invitations will be issued monthly.

Migrants can also be offered state sponsorship or employer sponsorship after lodging an EOI.

Only pre-approved employers will have the option to access SkillSelect —allowing them to locate and contact prospective migrants that have shown an interest in employer sponsorship through their EOI.

State governments will also be allowed to access SkillSelect – so it is in your interest to highlight the different states you are interested in, when applying for the EOI.

However, the new system will also allow immigration to impose occupation-specific Pass Marks instead of the current Pass Mark which applies to all occupations. So, where applications in a specific occupation are oversubscribed or undersubscribed, an occupation specific Pass Mark will be implemented.

Immigration can also impose a numerical cap on occupations. This would mean that only a set amount of migrants in a certain occupation would be permitted entry in that particular Program Year (for instance if too many Accountants apply, that occupation might be capped).

This is a radical change from the current system, where migrants are able to assess themselves against a fixed Pass Mark with no occupation capping.

However the main advantage to SkillSelect is that it serves as a “one stop shop”, allowing migrants to make their details available for selection by state governments and employers. Under the current system, a migrant would have to submit separate applications to every state government and every employer. This new approach is a real benefit and will assist many more migrants to have employment secured beforehand.

Most importantly – SkillSelect will still allow migrants to apply for and secure permanent residence as Independent Migrants without state or employer sponsorship.

To recap,

Independent migration will still be on offer under SkillSelect

Migrants who fall below the Pass Mark will have the options of state sponsorship or employer sponsorship

All migrants must have a valid Skills Assessment and meet the basic entry requirements to apply

If you are interested in applying for Australian residence, then please contact us so that we can check your eligibility. We can advise you on your ability to qualify through the new SkillSelect process.

UNITED KINGDOM – AUTOMATIC SETTLEMENT LINK TO BE SCRAPPED

In another change to the UK’s immigration policy, the Immigration Minister has announced that the right to “automatic settlement” after 5 years working in the UK will be abolished in 2016.

This follows on from a consultation completed last year.

At the moment, there is no general minimum income for migrants looking to settle in the UK after 5 years on a work permit or Tier 2 visa.

This will change in the future, when migrants will have to earn at least £35,000 or the minimum recommend salary for that occupation (whichever is higher). There will be exemptions for those in shortage occupations.

In order to ensure that the Tier 2 visa is seen as a temporary visa, the total amount of time allowed to stay in the UK will be 6 years. After this, the migrant will need to return to their home country for at least 1 year.

The minimum salary will not affect those who are in the UK on ancestry visas, HSMP, Tier 1 (General).

In summary, the government intends to:

* continue to provide a direct route to settlement for investors, entrepreneurs and exceptionally talented migrants under Tier 1.

* continue to provide a route to settlement for the best Tier 2 migrants, if they meet a minimum salary threshold of £35,000.

* allow those who enter as PhD-level scientists and researchers to qualify for settlement without having to meet the £35,000 minimum salary threshold.

* make all workers in shortage occupation jobs (currently including specialist nurses, teachers and social workers) exempt from the minimum settlement salary threshold of £35,000;

* allow Tier 2 migrants to extend their temporary permission to stay in the UK up to maximum of 6 years, and introduce a 12-month ‘cooling off’ period;

If you need assistance on any aspect of UK settlement, then please feel free to contact us.

FOCUS ON
– UK Indefinite Leave to Remain (ILR)

Overview

We have many years experience in assisting migrants to obtain UK Indefinite Leave to Remain (ILR) visas, also known as settlement or permanent residence.

The normal qualifying period to obtain ILR is 5 years. However if one is married to a British citizen, then the qualifying period is 2 years. However, not every visa category is counted as “qualifying” for ILR. For instance, time spent in the UK on a Working Holiday visa or a student visa does not count.

The following visa categories DO count towards the 5 year qualifying period;

Tier 1 (General)

Tier 2 (General)

Work permit

Tier 1 (Investor)

Tier 1 (Entrepreneur)

Ancestral visa

Highly Skilled Migrant Programme (HSMP)

You can obtain your qualifying 5 years by living in the UK on one of these visas or a combination of these visas. However, applicants need to note that EEA visas and residence cards cannot be used in combination with any of the above categories to apply for ILR.

EEA visas and residence cards can lead to permanent residence in their own right under EEA law but not ILR through UK immigration.

Absences in the 5 Years

The main residence requirement is that the applicant has been living in the UK throughout the qualifying period.

All absences from the UK need to be declared in the application. The UK Border Agency will of course disregard short absences for annual leave every year or for business trips.

New guidance has been issued to UK Border Agency case officers in April 2011 on calculating the continuous period in the UK and permitted absences.

The guidance states that discretion can be used where absences are for up to 3 months for a single absence or total absences of up to 6 months. The UK Border Agency can look at longer absences where these were for;

“compelling grounds either of a compassionate nature of for reasons related to the applicant’s employment or business in the UK”.

As detailed in their guidance, the case officer will want to see that;

“the applicant has clearly continued to be based in the UK“

Proof of employment, self-employment throughout the 5 years

The applicant needs to provide evidence to show that they were employed or self-employed in the UK or otherwise resident here in accordance with the terms of their visa.

So, for instance, Ancestral visa holders need to show that they have been working or self-employed in the UK throughout the qualifying 5 years – i.e. that the visa holder complied with the terms of their visa throughout the 5 years.

This previously was a very flexible requirement. However it is now being viewed much more strictly by the UK Border Agency.

Applicants need to be diligent in compiling as much material as possible throughout the 5 years. Many applicants may need assistance in this situation especially where a previous employer is no longer trading or in providing the correct proof of self-employment.

Applicants married to British citizens do not usually need to show employment or self-employment throughout the qualifying period.

Criminal convictions

In 2011, the government issued much more stringent rules relating to any criminal convictions when applying for ILR.

In short, an applicant cannot have any “unspent convictions” when applying for ILR. Most convictions become “spent” after a set period of time passes. This has proved a major hindrance for many applicants who may only have been convicted of a minor offence.

Please contact us, in strictest confidence, if you wish to see if a criminal conviction is seen as “unspent” and when it can be “spent”.

Life in the UK Test

Unless exempt through age or disability, applicants need to sit the Life in the UK Test. This is available at centres throughout the UK and is designed to test applicants’ knowledge of UK society, history, politics and government.

The test is not seen as particularly onerous – however applicants should take some time to prepare and read the recommended text book on “Life in the UK”

If you are applying for ILR on the basis of an initial application through the old HSMP visa category, then please contact us so we can see if you need to sit the Life in the UK Test.

Spouses, Partners, Children

Previously, applicants could include their spouse, partners or children on their ILR application. Once declared on the application they would be granted ILR with the main applicant regardless of how long they had lived together.

The rights of dependents changed in 2011, when the government removed the automatic rights of spouses and partners to apply at the same time.

We now have to prove that spouses or partners have been living at the same address as the main applicant for a minimum of 2 years before they can apply for ILR.

2011 changes and future developments

The following are some of the main changes to apply for ILR announced in 2011, and future proposals

Applicants applying for ILR whose current visa is Tier 1 (General) are now points tested. This is a major change from the previous position where applicants just needed to show they were economically active through employment or self-employment. The new system requires the applicants to pass a points test based on age, qualifications and most importantly – recent earnings.

Applicants applying for ILR whose current visa is Tier 2 (General) need to provide specific documents to show that they are being paid at the correct rate of pay for their occupation’s code of practice.

Revised guidance has been published on absences from the UK throughout the qualifying period for ILR.
A recent consultation on family migration has proposed increasing the residence period for ILR for spouses and partners from 2 to 5 years.

Retaining ILR

Once granted, ILR allows the holder to remain indefinitely or permanently in the UK. After living in the UK for another 1 year, the applicant may be eligible to obtain UK citizenship.

The main requirement to retain ILR is to continue living in the UK.

Any absences of more than 2 years at any one time outside of the UK, can result in one’s ILR being revoked.

Our ILR service

We have many years experience in securing ILR for our clients. The process can be complicated and is not granted easily by the UK government – it does, after all, allow permanent residence and is a very important step on the route to British citizenship.

We can handle the whole application from start to finish. The service includes everything from pre-application advice, document review, completing forms, covering letter, drafting your personal statement, submission to the authorities and bringing to a successful conclusion. This continues throughout the whole process until your visa is approved.

You will only deal with one dedicated immigration adviser to provide you with a focused one to one service.

Our success rate is second to none and we can provide numerous verifiable references from satisfied clients for you to review and inspect.

At this stage, we just need you to complete this quick registration form on our website;

* Online Assessment Form

This should give us all the information we need to give you the correct advice.

We can then review in full and get back to you.

* United Kingdom info page with the latest migration news

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