Further Guidance on Immigration Law Changes

---

At a Glance

The UK Home Office has updated its guidance documents in line with the changes in immigration rules which took effect January 11, 2018. The update provides further clarification on sponsorship obligations under Tier 2 and on the entrepreneur visa category.

---

The situation

The UK Home Office has updated its guidance documents in line with the changes in immigration rules which took effect January 11, 2018. Key updates are noted below:

Changes to sponsorship obligations under Tier 2

• Restrictions on timing of applications
  • New rule. Tier 2 visa applications can be filed no more than three months before the intended start date.
  • Prior rule. There was no restriction on the timing of applications.
  • Impact. Since processing times in the United Kingdom are relatively predictable, this should not affect the foreign workers’ start dates.
• Start date delay restriction
  • New rule. The start date of a foreign worker can be delayed for no more than 28 days. If the start date is delayed further, a new application is required.
  • Prior rule. The start date could be delayed for any period. 
  • Impact. This was already introduced in the policy guidance but it is now also reflected in the rules. Foreign nationals are advised to check the start date of their entry visa to ensure timely travel. Sponsors are advised to carefully plan start dates.
• Change in notification requirement
  • New rule.  Sponsors must notify the Home Office if their business size definition change, according to Home Office guidance, changes from small to large or vice versa. A small business is defined as having less than 50 employees or turnover less than GBP 10.2 million.
  • Prior rule. Sponsors whose business size changed were required to notify the Home Office only upon filing a renewal application.
  • Impact. This imposes an additional administrative burden on the sponsor.
• Employees can no longer certify documents
  • New rule. Employees of sponsors are no longer authorized to certify documents.  
  • Prior rule. Lawyers employed by sponsors could certify copies of documents.
  • Impact. The change only affects applications where certified copies are accepted, such as sponsor license applications. For those applications, applicants must now go through external counsel or non-employed notaries to certify documents. 
• Relaxed rule for ILR eligibility.
  • New rule. Tier 2 migrants applying for indefinite leave to remain (ILR) will no longer be required to have been continuously employed throughout the qualifying period to be eligible for ILR. Note that Tier 2 migrants who are no longer working for their sponsor are still liable to have their leave curtailed to 60 days if the migrant stops working for the original sponsor.
  • Previous rule. Tier 2 migrants must not have had more than 60 days' break in employment to be eligible for ILR.
  • Impact. Foreign nationals under the Tier 2 category may benefit from the removal of this requirement but must still act promptly to regularise their status or leave the United Kingdom if their sponsored employment ends.

 

Changes to Entrepreneur Visa

• Restriction on third-party funding
  • New rule. Close family members are no longer permitted to provide funding for foreign entrepreneurs.
  • Prior rule. Any third party could provide eligible funding for entrepreneur applications.
  • Impact. Applicants must submit declarations confirming the relationship with third parties providing funding.
• Changing from student to entrepreneur status
  • New rule. Students changing to Tier 1 (Entrepreneur) status inside the United Kingdom can only use funding from the Entrepreneurial Seed Competitions Department, UK Government Departments or Devolved Government to support their application.
  • Prior rule. All eligible types of funding for entrepreneur status could be used for in-country change of status applications.
  • Impact. Students are required to leave the country and apply from abroad to use funding from other sources.
• Changing highly-skilled permit to entrepreneur status
  • New rule. Applicants must submit extensive additional documents, including previous client contracts for services, to change status from Tier 1 (General) to Tier 1 (Entrepreneur) from inside the United Kingdom. 
  • Prior rule. Applicants were required to submit standard documents for entrepreneur applications for in-country changes of status.
  • Impact. Foreign nationals must leave the country and apply from abroad if they cannot submit the additional documents.

 

Other clarifications

• Tier 1 Exceptional Talent. As the Home Office originally stated, the number of available endorsements (places available) for the Tier 1 Exceptional Talent category will double from 1,000 to 2,000 places per year. The new guidance states that half this limit will be split between the designated competent bodies and the other half will be on a first-come-first-serve basis available to all designated bodies.
  • Background. The designated competent bodies are The Royal Society (sciences), The Royal Academy of Engineering (engineering), The British Academy (humanities and social sciences), Arts Council England (performing, visual and literary arts) and Tech City UK (digital tech companies).
  • Impact. There will be more Tier 1 Exceptional Talent visas available as the government is encouraging applications to this route.
• Researchers and Resident Labour Market Test (RLMT). Exemptions from the RLMT are being added for researchers who are in supernumerary research positions (those that are in addition to normal staffing requirements) and have been issued a scientific research award or fellowship, and also for established research team members sponsored by either a Higher Education Institution or a Research Council. The rules as published in December did not state that this was for supernumerary roles.
  • Impact. Employers who sponsor qualifying researchers will see a faster Tier 2 application process.

 

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].