Changes to Immigration Rules Forthcoming

---

Executive Summary

The UK government has announced changes to the Immigration Rules, which will take effect in January 2018. The key changes include:

• The introduction of an electronic entry clearance visa to replace a physical vignette in the passport;
• Flexibility for Tier 4 students switching to Tier 2 sponsorship; and
• A new requirement for PBS dependants to not spend more than 180 days in any 12-month period outside the United Kingdom in order to qualify for Indefinite Leave to Remain.

 

This is independent to the UK and EU Joint Statement of Citizenship Rights, reported on earlier today.

---

The situation

The UK government published the Statement of Changes of the Immigration Rules on December 7.  The changes outlined below will be effective January 11, 2018. This is independent to the UK and EU Joint Statement of Citizenship Rights, reported on earlier today.

Below is a summary of the key policy changes which will potentially affect businesses and/or their migrant workers.

Changes relating to electronic entry clearance

The government will introduce entry clearance in an electronic form as opposed to the traditional stamp in the passport. There will be an initial trial with specific groups with a broader roll out at a later date. 

• Impact. These changes mean that applicants who hold an electronic entry clearance will not be required to present their visa to an Immigration Officer on arrival, as it will be checked electronically. Details remain to be seen but in theory, this could help streamline the application process for migrants applying from outside the United Kingdom.

 

Changes relating to the Points Based System (PBS)

• Tier 1 (Exceptional Talent).
  • The number of available endorsements will double from 1,000 to 2,000 places per year.
  • Instead of a set number distributed to five Designated Competent Bodies (DCBs), there will be a pool of unallocated places which can be drawn on by any of the five bodies on a first-come-first-serve basis.
  • Furthermore, Tier 1 (Exceptional Talent) visa holders who are classed as “world leaders” in their field may be able to qualify for accelerated settlement after three years of continuous residence, instead of five years.
    • Impact. This category, while relatively limited in its application, could potentially offer another immigration option for very highly-skilled migrants working in specific industries.
• Tier 1 (Entrepreneur).
  • To prevent recycling of funds, applicants will no longer be able to rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. The interpretation of a “close family member” will depend on the facts of the case.  
  • Changes to the job creation rules for extension and settlement applications will be implemented to enable applicants to apply even if their current leave was granted less than 12 months ago. However, in such cases, the jobs must have existed for at least 12 months before the date of the current application.
• Tier 2 (General). The UK government is welcoming researchers into the United Kingdom. Exemption from the Resident Labour Market Test (RLMT) will be applied to researchers 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.
• Tier 4 Students switching to Tier 2.
  • Tier 4 students who have successfully passed their course in the United Kingdom are typically able to switch to Tier 2 sponsorship without the Sponsor being required to undertake the RLMT.
  • From January 11, 2018, United Kingdom Visas and Immigration (UKVI) will apply some welcome flexibility, in that Tier 4 students will no longer be required to pass their course before being able to switch to Tier 2. Instead, the requirement will be that they have completed their course and are able to evidence this.
    • Impact. This in theory should allow students to apply for their Tier 2 visas much more quickly, without having to wait for their exam results.
• Tier 4 students studying part-time. Tier 4 (General) Students can now apply to study a part-time course under their Tier 4 visa as long as the course is studied at an academic level over Scottish Credit and Qualifications Framework Level 11 or Regulated Qualifications Framework level 7. Part-time students will not, however, be able to:
  • Extend their leave in the United Kingdom under the new Tier 4 rules;
  • Bring family members into the United Kingdom as a dependant under their visa; 
  • Work during their studies; or
  • Switch visa categories in country.
• Tier 5. The annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.
  • There is a slight reduction in the number places available for Australia Nationals from 35,500 to 34,000.
  • There is an increase of 1,000 places from 13,000 to 14,000 for New Zealand.
  • There is also a small increase from 5,500 places for Canada to 6,000.
• PBS dependants.
  • Dependants of PBS migrants (including Tier 2) have not historically been subject to the absences requirement (i.e. spending no more than 180 days per year outside of the United Kingdom) when applying for Indefinite Leave to Remain. The new Immigration Rules confirm, however, that dependants of PBS migrants who make any visa application (including an extension application) on or after January 11, 2018 will need to ensure they are not away from the United Kingdom more than 180 days during any 12-month period from that point onwards.
    • Impact. This is a significant departure from the existing provisions. Companies may wish to establish whether this could affect its PBS population whose family members do not regularly reside in the United Kingdom.
• PBS dependants submitting an application on or after January 11, 2018 will have to prove to the UKVI that their relationship to the main applicant is both subsisting and genuine. Previously, there was no requirement to evidence that the relationship was genuine.

 

Impact on foreign nationals

There are some positives from this recent round of Immigration Rule changes, particularly when compared with previous updates. Nonetheless, some of the changes, particularly those in relation to PBS dependants, could have a significant impact.

The above guidance should be reviewed in line with other non-immigration-related requirements.

This alert is for informational purposes only. If you have any questions, please contact the global immigration professional with whom you work at Fragomen or send an email to [email protected].