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New immigration rules – summary of changes

You maybe aware of the Statement of Changes announced by UK Visas and Immigration. The publication is long winded and very lengthy. Here are some highlights………….

Changes relating to The Tier 1 (Exceptional Talent) category

  • A change is being made so that successful applicants will be granted 5 years’ leave (rather than 3 years’).
  • The English language requirement is being removed for extension applications in this category.  This is consistent with introducing a 5-year grant period, as some applicants will no longer need to apply for extensions.  The knowledge of language and life in the UK requirement will continue to apply for indefinite leave to remain applications.

Changes to The Tier 1 (Investor) category

  • The current £1 million minimum investment threshold is being raised to £2 million.
  • A change is being made to require the full investment sum to be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK Government bonds), rather than 75% of the sum as at present).
  • The current requirement that the migrant’s investment must be “topped up” if its market value falls is being removed; instead Tier 1 (Investor) Migrants will only need to purchase new qualifying investments if they sell part of their portfolios and need to replace them in order to maintain the investment threshold.
  • The existing provision under which the required investment sum can be sourced as a loan is being removed.
  • Transitional arrangements are being applied, so that Tier 1 (Investor) Migrants who have already entered the route before these changes are introduced will not be subject to these changes when they apply for extensions or for indefinite leave to remain.
  • Entry Clearance Officers and UK Visas & Immigration caseworkers are being empowered to refuse a Tier 1 (Investor) application if they have reasonable grounds to believe that:a)      the applicant is not in control of the investment funds;
    b)      the funds were obtained unlawfully (or by means which would be unlawful if they happened in the UK); or
    c)       the character, conduct or associations of a party providing the funds mean that approving the application is not conducive to the public good.

Changes to The Tier 1 (Entrepreneur) category

For applications made in the UK, a new requirement is being added that the funds to be invested in the business must also be in the UK, to assist in verifying that the funds are genuine.

A change is being made to require applicants for indefinite leave to remain to show they have invested their funds, if they have not been required to do so in a previous application.  This change will apply to applicants for accelerated indefinite leave to remain, who have not made an extension application before applying for indefinite leave.

A number of technical clarifications are being made to evidential requirements relating to funding held in joint accounts, multiple bank accounts, or another business

Changes relating to Tier 2

•    An assessment of whether a genuine vacancy exists is being added to Tier 2 (Intra-Company Transfer) and Tier 2 (General).  This change empowers Entry Clearance Officers and caseworkers to refuse applications where there are reasonable grounds to believe that the job described by the sponsor does not genuinely exist, has been exaggerated to meet the Tier 2 skills threshold, or (in respect of Tier 2 (General)) has been tailored to exclude resident workers from being recruited, or where there are reasonable grounds to believe that the applicant is not qualified to do the job.

•    An existing requirement in the published guidance for Sponsors is that Tier 2 Migrants cannot be sponsored to fill a position, undertake an ongoing routine role or to provide an ongoing routine service for a third party who is not the sponsor.  This requirement is being replicated in the Immigration Rules for transparency and completeness.  This also enables applications by individuals for entry clearance or leave to remain, and applications by Sponsors for Restricted Certificates of Sponsorship, to be refused in line with any wider compliance action relating to the Sponsor in question.

•    Provisions relating to overseas nurses and midwives are being amended, to reflect changes in practice by the Nursing and Midwifery Council (NMC).

•    A change is being made to the Tier 2 (General) provisions for extension applications where the applicant is continuing to work in the same occupation for the same sponsor.  Such applicants are exempt from the Resident Labour Market Test.  Currently the exemption only applies if the applicant still has current leave as a Tier 2 (General) Migrant when they make their extension application.  The change will enable them to benefit from the extension if their previous leave as a Tier 2 (General) Migrant expired no more than 28 days before they make their extension application.

•      It is not possible for applicants to switch from the Tier 2 (Intra-Company Transfer) category to other Tier 2 categories within the UK, unless they entered under the Tier 2 (Intra-Company Transfer) rules in place before 6 April 2011.  A drafting error meant that the time spent in Tier 2 (Intra-Company Transfer) counted towards the maximum period of 6 years that applicants may spend in other Tier 2 categories.  This is being corrected.

•    An amendment is being made to the conditions of leave for Tier 2 (Sportsperson) migrants, enabling them to take additional employment as a sports broadcaster, in line with the conditions for sportspeople in the Creative and Sporting sub-category of the Tier 5 (Temporary Worker) category.

Changes relating to Business Visitors

•    allowing scientists and researchers to share knowledge, expertise and advice on an international project which is being led by the UK, provided the visitor is not carrying out research that should be undertaken on a Tier 5 (temporary worker) or Tier 2 (skilled work) visa;
•    creating a provision for overseas lawyers, who are employees of international law firms which have offices in the UK, to provide direct advice to clients in the UK on litigation or international transactions provided they remain paid and employed overseas;

The following will have effect from 6 November 2014

•    Paragraph 245EE (e) – Investors will now need at least £2 million if the applicant was last granted leave under the Rules in place from 6 November 2014 and was awarded points as set out in Table 7 or Table 8A of Appendix A to these Rules in that last grant, or at least £750,000 if the applicant was last granted leave under the Rules in place before 6 November 2014 or was awarded points as set out in Table 8B of Appendix A to these Rules in his last grant.

•    “Investment and Business activity” does not include investment in any residential accommodation, property development or property management, and must not be in the form of a director’s loan unless it is unsecured and subordinated in favour of the business.  “Property development or property management” in this context means any development of property owned by the applicant or his business to increase the value of the property with a view to earning a return either through rent or a future sale or both, or management of property (whether or not it is owned by the applicant or his business) for the purposes of renting it out or resale.

•    Points will only be awarded in respect of UK Businesses. a business will only be considered to be a “new” business for the purposes of Tables 5 and 6 if it was established no earlier than 12 months before the start of a period throughout which the applicant has had continuous leave as a Tier 1 (Entrepreneur) Migrant, and which includes the applicant’s last grant of leave

Table 8B: Applications for entry clearance or leave to remain from applicants who initially applied to enter the category before 6 November 2014 as referred to in paragraph 56(b).

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