Changes to the Immigration Rules coming into effect on 6 April 2013
The written ministerial statement was laid in on 14 March 2013 in the House of Commons by Theresa May and in the House of Lords by Lord Henley. As a result of this, the UK Border Agency is making the following changes as detailed below.
Tier 1 (Graduate Entrepreneur)
New provisions are being made to the Tier 1 (Graduate Entrepreneur) route, which were introduced in 2012 The category is being expanded to include additional places for talented MBA graduates from UK Higher Education Institutions (HEIs) and to accommodate UK Trade and Investment’s elite global graduate entrepreneur scheme.
Tier 1 (Exceptional Talent)
Changes are being made to the Tier 1 (Exceptional Talent) route, for world leaders in science, engineering, humanities and the arts. These changes split the application process so that applicants will no longer have to pay the full fee up front, or have their passports held by the UK Border Agency, while a Designated Competent Body is considering whether to endorse them.
Changes are being made to Tier 2, the route for skilled migrant workers with a job offer from a licensed employer. These changes further improve flexibility for Intra-Company Transferees and for employers carrying out the Resident Labour Market Test. The Shortage Occupation List, Codes of Practice for employers, overall salary thresholds and minimum appropriate salary rates for individual occupations are being updated. The UK Border Agency has also made changes that will remove the need to continually lay further Rules changes to renew the Tier 2 (General) limit. This means that the limit will continue to be set at 20,700 places per year unless further Rules changes are made to amend it. The UK Border Agency has previously confirmed that the current limit will remain in place until April 2014.
Changes are being made to Tier 4 recently announced by the Home Secretary that will extend the opportunities for talented graduates to stay and work after their studies. All completing PhD students will be allowed to stay in the UK for one year beyond the end of the course to find skilled work or to set up as an entrepreneur.
The provisions in Tier 5 for temporary workers coming to the UK under the relevant commitments in certain international trade agreements to which the UK is a party are being updated. The changes will delete temporary Immigration Rules which facilitated the entry and stay of certain Olympic and Paralympic participants and personnel during the 2012 Olympic and Paralympic Games. The rules ceased to have effect on 9 November 2012.
Other Immigration categories
Minor changes are being made to the Immigration Rules on long residence and on work-related settlement, including clarifying the treatment of time spent working; in business or self-employment; or other economic activity in the Channel Islands and the Isle of Man.
Minor changes and clarifications are being made to the Immigration Rules relating to family and private life.
The changes also include the removal of the provision in the Immigration Rules for parents and siblings of EEA national children who exercise free movement rights in the UK as self-sufficient persons, following the amendment of the Immigration (European Economic Area) Regulations 2006 to create provision for such persons which is compliant with European and domestic case law. This provision gave effect to the judgment of the Court of Justice of the European Union in the case of Chen (C200/02).
In the subsequent case of M (Chen parents: source of rights) Ivory Coast , the Upper Tribunal found that ‘Chen’ carers persons have a right of residence under European law. This determination effectively prevented the UK Border Agency continuing to require Chen carers to apply for leave under the Immigration Rules, because section 7 of the Immigration Act 1988 says that a person who has ‘an enforceable Community right’ shall not require leave to enter or remain in the UK.
Amendments were made to the Immigration (European Economic Area) Regulations 2006 (‘the Regulations’) on 16 July 2012 to recognise a right of residence for persons with a derivative right of residence on the basis of Chen and to create provision for such persons to be issued with documentation confirming this right under the Regulations.
This provision rendered paragraphs 257C-E of the Immigration Rules obsolete, as all applications for a document confirming a right of residence on the basis of Chen are now assessed under the Regulations.
Changes will be made to safeguard against an offender returning to the UK lawfully but in breach of a conditional caution. It replicates the effect of Paragraph 320(7B)(vii) of the General Grounds for Refusal.
A new protection route is being introduced recognising Stateless persons who are unable to leave the UK. According to Article 1(1) of the 1954 UN Convention an individual is stateless if they are not considered to be a national of any State under the operation of its law. This new route has been formulated in line with the 1954 Convention Relating to the Status of Stateless Persons in cooperation with UNHCR and Asylum Aid. It is limited in its scope and requires applicants to demonstrate that they are stateless and cannot leave the UK.
Changes are being made to ensure the requirements necessary for granting discretionary leave to unaccompanied asylum seeking children are within the Immigration Rules.
For specific questions, please contact your Global Immigration professional at Hudson McKenzie, or email one of our London Immigration Lawyers at firstname.lastname@example.org.