Statement of changes released
Last night the government released a statement of changes. For ease of reference, Hudson McKenzie has highlighted the most important points that may affect employers and migrants.
Tier 1 of the Points Based System
Tier 1 (General) – This category was closed in April 2011 for new applicants, those who are still on a Tier 1 (General) visa must apply for Indefinite Leave to Remain by 5 April 2018. Settlement will be withdrawn after this date, it is therefore important to check you will qualify and submit your application in time. If you cannot qualify, it would be essential to check if you can switch in to another immigration category from within the UK.
Tier 1 (Exceptional) Talent – At present there are 1,000 places available per year under this immigration category, however, the number of places is now being doubled to 2,000 a year. Our article dated 15 November 2017 for full details.
Tier 1 (Entrepreneur) – The “Attributes” requirements for this category in Appendix A are being re-written following feedback, to make them clear and easier to follow. The following amendments have been made:
“· The job creation rules currently require 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 jobs must have existed for at least 12 months before the date of the current application.
- A transitional arrangement relating to the job creation requirement for applicants who entered the category before 6 April 2014, currently set out in published guidance, is being incorporated into the Immigration Rules. This transitional arrangement will only apply to extension and settlement applications made before 6 April 2019.
- Applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
- An amendment is being made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
- An amendment is being made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the business, rather than the period before jobs were created. This provides a clearer demonstration of the applicant’s impact on the business.
- Clarifications are being made to make clear that, where funds are currently held by another business, which is not the business the applicant is using to score points, that business is considered to be a third party providing funding.
- Applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.
- To prevent recycling of funds between applicants, a change is being made so that applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. Who is considered to be a close family member will depend on the facts in an individual application.
- On 19 November 2015, Statement of Changes HC 535 introduced a requirement that investments made in the form of directors’ loans must be evidenced through readily identifiable transactions in applicants’ business bank statements. A change is being made so that this requirement only applies to investments made after 19 November 2015.
- A provision is being removed because it contradicts the rule requiring applicants to be registered with Companies House within 6 months of the date the applicant entered the category. The removed provision requires that such registration has to be effected within 8 months of the same date.
- Redundant transitional arrangements relating to applicants switching from Tier 1 (Post-Study Work) are being removed. This is because leave as a Tier 1 (Post-Study Work) Migrant was granted for two years and the category was closed on 6 April 2012.
- A clarification is being made to the rule which excludes buying the business from its previous owner from being considered as a qualifying investment, to clarify that this means buying any business from its previous owner.
- Minor amendments are being made to the requirements concerning format and contents of letters (used as evidence) for consistency.
- Clarifications are being made to the evidential requirements for Tier 1 (General) migrants switching into the Tier 1 (Entrepreneur) category to make clear the relevant dates for evidence.”
Tier 1 (Investor) – Two changes have been made to this category, first one in relation to the evidence of investments with National Savings & Investments. The second amendment will be that those who entered under this category before 6 November 2014, may rely on un-mortgaged portion of their main home, as follows:
“only the mortgaged portion of the applicant’s own main home, excluding any share owned by any other person in the case of a tenancy in common, will count towards the balance of funds. The valuation of the portion of the property that the applicant may rely on, must be provided in a report issued by a surveyor (who is a member of the Royal Institution of Chartered Surveyors), which is dated not earlier than six months prior to the date of application.
The property must be:
(1) wholly owned by the applicant or
(2) co-owned by the applicant and their spouse, civil partner, or partner, or
(3) co-owned by the applicant with one or more persons as tenants in common;”.
Tier 2 of the Points Based System
Tier 2 (General) – There seem to be a fair few changes being made to this category for skilled workers, as follows:
Switching from Tier 4 to Tier 2 – At present, Tier 4 students who have completed their studies have to wait until they have received their final results before switching in to Tier 2 (General). There will be flexibility applied to enable Tier 4 students to apply as soon as they have completed their studies in the UK.
Resident Labour Market Test – Exemptions are being added for 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.
Health Care Sector – Pay rates are being brought in-line with pay scales in England and each of the devolved administrations, and consolidated in a new table.
Nurses – Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.
Migrant Start Date – The restriction below applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.
“(za) If a migrant is a Tier 2 (General) Migrant, their start date is changed to a date more than 28 days from either of the following, whichever is later:
- the date on which their entry clearance or leave to remain is granted; or
- the start date as stated on their Certificate of Sponsorship, taking into account any changes to the start date that have been properly reported by his employer before the date on which entry clearance or leave to remain is granted.”.
Entry Clearance – The Government proposes to commence issuing entry clearance in electronic form. This will initially be trialled with specified groups with a view to general introduction of entry clearance in electronic form at a subsequent date.
At present the Immigration Rules require an entry clearance vignette to be endorsed in a valid passport or other identity document. The amendment to the rules will allow entry clearance to be issued both in an electronic form and by endorsement in a valid passport or identity document.
Applicants who hold an entry clearance issued in electronic form will not be required to present such an entry clearance to an Immigration Officer on arrival in the UK. The issue of such an entry clearance will be checked electronically.
Family members of the PBS System – The wording in the current guidance for dependants, in respect to a “genuine and subsisting relationship” is being bought in-line with that set out for family members applying under Appendix FM.
Maintenance – Remove a part which states that a child applicant of a PBS migrant cannot rely on funds held in a parent’s bank account unless that parent is either the main applicant or currently in the UK.
If you like to discuss this article further, please contact one of our highly qualified immigration solicitors on 020 3318 5794 or by email at email@example.com
Author: Amisha Jethwa