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LATEST
IMMIGRATION NEWS - UNITED KINGDOM
(as published in our newsletters)
 March
2012 - 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 – AUTOMATIC SETTLEMENT LINK TO BE SCRAPPED
March 2012 - 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.
UNITED
KINGDOM – IMMIGRATION QUOTA INTRODUCED
July 2010 - The UK government have announced that they are
pressing ahead with plans to implement a cap or quota on all
non-EU economic migrants. This was predicted in our previous
newsletter.
This is likely to affect all applications for Tier 1 and
Tier 2 visas.
A permanent cap is set to be introduced from April 2011. In
the meantime, a temporary cap is to be imposed which will
see overall numbers between now and April 2011, reduced by 5
%.
The criteria for Tier 1 visas (Highly Skilled workers) has
been tightened from July 19th by increasing the points
threshold by 5 points.
We therefore advise all applicants and employers to look at
applying for such visas, as soon as possible. The
announcement of a cap is unprecedented in UK immigration and
is likely to lead to an increase in applications.
This may then lead to visas being unavailable until the new
visa year commences in April 2011. The new criteria
effective from April 2011 may well see further restrictions
to ensure an immigration cap is effective.
A review by the Migration Advisory Committee has been
launched into the permanent cap. There are a broad range of
proposals on how the government should implement a cap and
also what the final quota numbers should be.
If you wish to go ahead with a Tier 1 or Tier 2 application,
then please contact us so that we can assess your
eligibility
UNITED
KINGDOM – NEW GOVERNMENT TO IMPLEMENT QUOTA?
June 2010 - The new UK government took office last
month with Damian Green appointed as Minister for
Immigration.
The coalition government between the Conservatives and
Liberal Democrats has reached compromise on many issues.
However the government has still retained the Conservative
idea of a “cap” or quota on numbers, as their main
immigration policy.
The following is an extract from the agreed Programme for
Government on the subject of immigration;
“The Government believes that immigration has enriched our
culture and strengthened our economy, but that it must be
controlled so that people have confidence in the system. We
also recognise that to ensure cohesion and protect our
public services, we need to introduce a cap on immigration
and reduce the number of non EU immigrants.”
No timeframe has been indicated for this and it is important
to stress that it does not affect EU migrants or migrants in
other categories such as spouses, students etc..
However, this may logically result in an annual quota of
visas to be granted, in categories such as Tier 1 and Tier
2. Applicants intending to apply in these categories may be
advised to start the process sooner rather than later, in
case a future quota would work to their detriment.
In any event, new figures show that net migration to the UK
is set to drop below 100,000 a year. This of course is a key
target of the new government - the aim of reducing the level
to "tens of thousands, rather than hundreds of
thousands".
New official immigration figures show that more eastern
European migrants (from the 2004 Accession countries such as
Poland) are leaving than arriving.
The annual citizenship figures for 2009 also published show
more than 203,000 people were granted UK citizenship last
year.
The overall statistics show a continued decline in net
migration to the UK – the number of people coming to work
and study minus the number of people leaving to live abroad
– to 142,000 in the year to September 2009. This compares
with a net migration figure of 160,000 in the previous year
to September 2009.
UNITED
KINGDOM – TIER 1 VISA CHANGES
March 2010 - The UK Border Agency has announced an
important change in UK immigration that will affect many
overseas migrants looking to work in the UK through the Tier
1 visa.
Effective April 2010, the minimum educational requirement
for the Tier 1 visa has now been amended from a Masters
degree to a Bachelors degree.
The points system has also been amended to change the
qualifying criteria for previous earnings.
The Tier 1 visa allows overseas professionals to enter the
UK to work or establish themselves as self-employed. Most
importantly - this visa does not require a sponsoring
employer. It is assessed on a points system with points
awarded for age, education, previous earnings etc...
This previous Masters degree requirement affected many
overseas migrants who scored well on other assessment
criteria but were ineligible for not having a Masters
degree. This is a very significant change and will now allow
many more overseas migrants to qualify to work in the UK
without a sponsoring employer.
UNITED
KINGDOM - RADICAL TIER 1 VISA CHANGES PROPOSED
December 2009 - A recent review of the Tier 1 visa
category has proposed some radical changes.
The review by the Migration Advisory Committee (MAC)
published December 2009 has recommended;
* Reopening Tier 1 to applicants with a Bachelor’s degree
as opposed to the current minimum Masters degree
requirement.
* Changes to the overseas salary multipliers and the points
awarded for earnings, requiring higher previous earnings.
* That migrants with previous annual earnings of UK £150,000
should not need to meet the educational requirements.
* Points should be awarded for age up until 39 years of age.
These are significant recommendations and would place a
greater emphasis on previous earnings. The removal of the
minimum Masters degree requirement would be very welcome.
The government have agreed to study the report carefully
over the next few weeks and announce what changes will be
introduced in early 2010.
The government have in the past followed many of the
recommendations of the MAC so we expect changes to be
introduced following this report.
We will of course keep subscribers updated through our
newsletter.
UNITED
KINGDOM - NEW CITIZENSHIP ELIGIBILITY AND NEW ADVERTISING
RULES
December 2009 - The new citizenship rules are due
to become effective on 13 January 2010.
These changes, introduced through the Borders, Citizenship
and Immigration Act 2009, will mainly affect those born
outside the UK to British mothers before 1961. Such
individuals will now be allowed to apply for registration as
“British citizens by descent”.
For employers looking to sponsor migrant workers through the
Tier 2 visa category, the government has now made changes to
the length of time that the position must be advertised for.
Effective from December 14th, this advertising period is
increased to 4 weeks. The type and medium of advertising
depends on the offered position.
If you are an employer looking to sponsor migrant workers,
then please contact us so that we can advise on how and
where you should advertise.
UNITED
KINGDOM - SOME RECENT ANNOUNCEMENTS
October 2009 - The Home Office have now announced the
timeframe for introducing changes to obtaining UK
citizenship.
The new process of “earned citizenship” will be
introduced in July 2011. All applications for indefinite
leave to remain and British citizenship received before
earned citizenship is introduced will be dealt with under
the current system.
The government is still engaged in a consultation exercise,
on the exact details of what “earned citizenship” will
involve. However, this recent announcement will go some way
to reassuring those who are hoping to secure indefinite
leave to remain or citizenship before July 2011.
Another recent announcement concerns those applying under
Tier 1 (General). Recent guidance published by the
government removes the route where students could use their
earnings from the 12 months BEFORE their studies commenced,
to claim points for earnings in the Tier 1 (General) visa.
This is no longer possible, effective from October 2009.
Only those on maternity leave / adoption absence can claim
earnings from an earlier period.
We will obviously keep applicants informed of any further
announcements regarding the new rules for UK citizenship.
UNITED
KINGDOM - NEW PROPOSALS FOR CITIZENSHIP
August 2009 - The Home Office have now announced proposals
on future plans for applicants to obtain UK citizenship.
At the moment, after complying with rules on residence and
character, applicants are normally eligible to apply for
full UK citizenship.
The new proposals would allow the Home Office to introduce a
points based system for UK citizenship. There would also
potentially be a system of “probationary citizenship”
before “full citizenship”.
As outlined by the Home Office, the new system
“would see people rewarded for economic contributions,
skills and English language proficiency above the level
already expected. Points could be removed and citizenship
withheld or delayed for those breaking the law or committing
anti-social behaviour”.
This would obviously be a radical departure from the current
system and potentially lead to much greater scrutiny of
applicants. The timeframe to achieve full UK citizenship
could also be longer.
At the moment, the proposals are still at the consultation
stage until 26 October. After that, we expect details on the
implementation of the new system.
We will obviously keep applicants informed of any further
announcements regarding the new rules for UK citizenship.
UNITED
KINGDOM - NEW RULES CLARIFIED
April 2009 - The government have now clarified the
April 1st changes to the UK Tier 1 General (Highly Skilled)
category.
All new applicants applying in this category will need to
have a minimum qualification of a Masters degree and
previous earnings equivalent to UK £20,000 (adjusted
for different countries).
The new rules do not apply to those already in the UK on a
Tier 1 General visa or the previous HSMP visa, who are
extending their status while in the UK. However, they do
apply to those in the UK such as students or work permit
holders changing their UK status.
Also, the rules have now been changed for the Tier 1 Post
Study Work visa. From April 1st, applicants who have been
awarded a Postgraduate Diploma or Postgraduate Certificate
(unless it is a PGCE Postgraduate Certificate in Education)
will not be eligible for this visa. There is no change for
applicants who have a UK Bachelors degree or postgraduate
degree.
UNITED
KINGDOM - NEW RULES FOR MIGRANTS
February 2009 - Significant changes have just been announced
for the UK Tier 1 General (Highly Skilled) category.
From 1 April 2009, overseas applicants applying in this
category will need to have a minimum qualification of a
Masters degree and previous earnings equivalent to UK
£20,000 (adjusted for different countries). The
Masters degree requirement is a major new development as
currently the minimum qualification is a Bachelors degree.
The new rules do not seem to apply to those already in the
UK on a Tier 1 visa or indeed switching / extending their
status while in the UK. The initial indication is that this
would not affect students or work permit holders changing
their UK status.
In relation to Tier 2 migrants (sponsored by a UK employer),
the government has asked the independent Migration Advisory
Committee to review if further changes are needed to the
list of occupations that can be sponsored.
These Tier 1 changes have just been announced and we are
still waiting further detailed advice from the government on
the new system and exactly how overseas applicants will be
assessed. If the government introduce any more changes,
we’ll let you know.
ake sure you remain up to date with our newsletter.
UNITED
KINGDOM – CITIZENSHIP CHANGES PROPOSED
February 2009 - The government is proposing to pass
legislation later this year to amend the requirements to
allow applicants to become British citizens.
The new requirements may involve a longer period of
residence before qualifying for citizenship. Another
proposal is that a new concept of “probationary
citizenship” will be introduced before one can become a
full citizen.
We must emphasise that the exact details of the new system
or the implementation date have not yet been decided.
However this is expected to receive approval by Parliament
at some point this year.
Our advice to all applicants is to consider applying now, if
you are eligible. Last week, the Home Office announced a
significant increase in the number of citizenship
applications being submitted.
If you wish to consider applying for UK citizenship at this
point, then please contact us.
UNITED
KINGDOM – FIRST IDENTITY CARDS FOR FOREIGN NATIONALS
ISSUED
December 2008 - The UK Home Office have started the process
of issuing Identity Cards for foreign nationals applying for
visas in the UK.
Initially, Identity Cards are being issued for applicants
applying for visa extensions as students or spouses /
partners. The aim is that within 3 years it will include all
visa categories.
The process involves applying for a visa extension in the
normal way, and then awaiting further instructions to attend
an appointment for fingerprinting and facial image scans.
These features are then incorporated into the new card.
Once the card is issued it is mandatory that the card and
your passport are presented to immigration upon returning to
the UK. Without the card, entry to the UK will be refused.
We will keep you updated on future developments of the card
as more and more visa categories will be included.
UNITED
KINGDOM - NEW RULES FOR MARRIAGE VISA
November 2008 - The UK government have just announced a
change in the minimum age requirements for a marriage visa
for the UK.
Effective from the end of November, the minimum age has been
raised from 18 to 21 years. Both parties in a marriage will
need to be 21 years before a marriage visa can be issued.
The Home Office have not clarified if this new regulation
will apply to other categories of relationships – such as
civil partners, unmarried partners and same-sex partners.
UNITED
KINGDOM - CURRENT WORK PERMIT SCHEME TO END
November 2008 - On 27 November, the current work permit
scheme in the UK will come to an end. From that date on,
employers looking to sponsor overseas workers from outside
the EU will need to apply through Tier 2 of the new Points
Based System.
Also on that date the current Working Holiday Maker visa
will no longer exist. Instead the new category will be
through Tier 5 Youth Mobility of the Points Based System.
We will bring full details on the new categories once
available.
UNITED
KINGDOM - GOVERNMENT ADVERTISING CAMPAIGN
September 2008 - Many of you may have seen and heard the new
government TV and Radio advertising campaign to promote the
launch of the next stage of the new Points Based System
(PBS).
The next stage – known as Tier 2, is due to be launched in
November and will largely replace the current work permit
scheme. The new category differs from the work permit scheme
in that it requires employers to register in advance on the
new Register of Sponsors.
However, so far the number of employers who have applied to
register is very low. By August, only 350 applications had
been received. It is believed the Home Office are very
concerned at the lack of applications to register, and
therefore have decided to launch their TV and Radio
advertising campaign.
It should be noted that the new Tier 2 visa will still
contain many of the current general criteria for issuance of
a work permit. There will still be a shortage occupation
list and approval can still be issued for other skilled
positions, where the employer has met the Resident Labour
Market Test (proof of advertising / recruitment to fill the
position).
The main difference is the requirement for employers to be
registered in advance on the new Register of Sponsors.
UNITED
KINGDOM - NEW “POST-STUDY WORK” CATEGORY INTRODUCED
July 2008 - As part of the launch of its new Points Based System (PBS)
throughout 2008 and 2009, the government have now introduced the new
Post-Study Work category (Tier1 of the new Points Based System). This will
replace the current International Graduate Scheme (IGS) available for overseas
students who graduate from a UK university.
The new category differs from the IGS in that allows applicants to apply for a
2 year visa, rather than the current 1 year.
Furthermore, those who are currently in the UK on the IGS visa can apply to
switch into the new Post-Study Work category for a 1 year extension.
The Post-Study Work category is seen as a viable “stepping stone” option
allowing overseas graduates to remain in the UK to work. After the end of 2
years in this category, applicants may be eligible to remain in the UK through
other categories such as Highly Skilled workers or employer sponsored work
permits.
The application process for this new category is quite detailed, so please do
not hesitate to contact us, to allow us to see if you are eligible.
UNITED
KINGDOM - COURT RULES AGAINST GOVERNMENT ON HSMP CHANGES
June 2008 - The High Court has recently ruled against the UK government, in declaring that
the changes to the Highly Skilled Migrant Programme (HSMP visa) introduced in
November 2006 were unlawful.
The changes introduced at that time, were applied retrospectively to those who
were already in the UK. In other words, those who were admitted under one set
of HSMP rules were now told that they had an additional set of new criteria to
meet to remain in the UK.
The government have agreed to implement the High Court judgement and will not
appeal against the decision. This means that those who were granted HSMP
approval prior to November 2006 will now not need to satisfy a different points
test to remain in the UK.
UNITED
KINGDOM – NEW WORKING HOLIDAY VISA TO BE INTRODUCED
June 2008 - As part of the launch of its new Points Based System (PBS) throughout 2008 and
2009, the government have provided details of the new Youth Mobility Scheme (Tier 5 of the new Points Based System). This will replace the current Working
Holidaymakers scheme for applicants from Commonwealth countries.
It is likely that the new scheme will initially only be open to those countries
who already have an existing Working Holiday scheme for UK citizens, such as Australia, New Zealand etc.. This may mean that many other Commonwealth
countries may not benefit from the scheme such as South Africa, India etc.
UNITED
KINGDOM – NEW MAINTENANCE FUNDS REQUIREMENT
IMPORTANT INFORMATION FOR UK EMPLOYERS
March 2008 - The UK government have announced details of the new requirement for maintenance
funds for applicants under the new Points Based System.
The new system is currently in place for applicants who are applying from within the UK. Over the next 6 months or so, the system will replace the HSMP
visa process for applicants applying from outside the UK.
For applicants currently in the UK, the required amount is UK£800.
For applicants applying from outside the UK, the proposed required amounts are;
Principal applicant UK£2,800
Spouse UK£1,600
Each child UK£800
The accepted evidence of such funds will be the applicant’s last 3 months bank
statements, showing a constant balance at or above the required level.
We are still awaiting exact details of the new application system and maintenance funds required for Out of Country applicants. Once we have this, we
will be detailing the process for you on our website and explaining exactly what it involves.
In the meantime, if you are outside the UK and are eligible to apply for the HSMP visa now, it may be advisable to do so, to avoid having to meet the new
maintenance rules.
Also if you are a UK employer, looking to take on overseas workers on work permits, then you need to be aware of the process to do so under the Points
Based System. This involves a pre-registration application to be included on the new “Register of Sponsors”.
The UK government will implement the new regime for work permits in September/October this year. Only employers who are registered, as approved Sponsors will
be permitted to apply for work permits. If you are a UK employer that requires
further information on the new process as it becomes available, then please contact us.
UNITED
KINGDOM – DETAILS ON THE NEW SYSTEM
February 2008 - The UK government have just announced that the first stage of
the new Points Based System will be introduced on 29th February 2008.
From that date any highly skilled foreign nationals (such as current HSMP
holders) currently working in the UK who want to extend their stay will need
to apply under the new system. In April, the new system will begin to be
rolled out overseas when anyone from India who wants to work in the UK as a
highly skilled migrant will need to apply under the new system. By the summer
the new highly skilled system will operate worldwide.
At the moment, the initial guidance from the Home Office is that the new
system from 29th February will only apply to those in the UK looking to obtain
or extend a HSMP visa. Other categories such as work permits would not yet be
affected.
We are still awaiting exact details of the new application system for
applicants in the UK from 29th February. Once we have this, we will be
detailing the process for you on our website and explaining exactly what it
involves.
For further information on the overall changes to be introduced gradually in
the new Points Based System, please see back issues of the newsletters on our
website.
We hope that these news have been informative for you. However, remember
everyone's circumstances are different so if you or a friend or family member
want to check your eligibility to emigrate then either
1) complete the Online
Assessment Form on our website or
2) give us a call on Tel. +44 (0) 1223 830 916
We would love to hear from you!
Regards
Tim McMahon
Commonwealth Immigration
www.commonwealthimmigration.com
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