U.K. immigration update : Changes to the immigration rules to take force on 6 April 2011

The Government's Statement of Changes in the Immigration Rules, laid before Parliament on 16 March 2011, sets out significant changes to Tier 1 and Tier 2 of the Points-Based System that will take force on 6 April 2011.  These changes aim to further the Government's strategy for reducing non-EEA economic migration whilst encouraging entrepreneurs and investors.

Tier 1 (Exceptional Talent)

The new Tier 1 (Exceptional Talent) category will be for migrants who are internationally recognised, or who show exceptional promise, in scientific and cultural fields.  With an initial limit of 1,000 endorsements (700 in science and 300 in the arts), migrants will not need employer sponsorship, instead, applicants must score attribute points for being endorsed by a Designated Competent Body (DCB) (these will be listed on the UKBA website) and must demonstrate sufficient maintenance funds.  There will be no English language competency requirement.

Entry clearance will be initially granted for 3 years and 4 months with potential to extend for a further 2 years.  After 5 years, migrants may apply for settlement.  To qualify for both extension and settlement applications, migrants must continue to be economically active in their expert field and the DCB must not have withdrawn their endorsement.

Tier 1 (General)

After 6 April 2011, Tier 1 (General) will be closed to new applicants.  Extension applications, for those with existing leave under Tier 1 (General) and its predecessor categories, will continue to be possible.  A new attributes points test will be introduced for applications for Indefinite Leave to Remain (ILR), similar to the requirements for the Tier 1 (General) applicant's previous leave to remain application - this will have the affect of requiring a minimum earnings threshold for ILR applications.

Tier 1 (Entrepreneur)

To seek to attract more entrepreneurs to the UK, a reduced level of funding will be permissible for Tier 1 (Entrepreneur) applicants who have access to £50,000 funding (rather than the full £200,000 normally required) where the funding is from one or more of the following:

·         Registered venture capitalists regulated by the Financial Services Authority (FSA);

·         Registered UK entrepreneurial seed funding competitions; and/or

·         UK Government Departments.

Moreover, pairs of entrepreneurs will be able to access the category relying on the same funds (rather than requiring twice the minimum level of finding) provided both have equal access to the funds. 

The time frame in which entrepreneurs must register as a director/as self-employed in the UK will be extended from 3 months to 6 months after entry.

Leave will be granted for an initial period of 3 years 4 months, with a potential extension for 2 further years and settlement after 5 years. 

However, migrants may qualify for accelerated settlement after 3 years (instead of 5) if they have created either the equivalent of 10 full-time jobs or at least £5 million in income from business activity within a 3 year period.  Absences from the UK for up to 180 days in any 12 month period (for any reason) will be permitted, representing a significant relaxation of the current policy.

Prospective Entrepreneur

This new category will be for migrants coming to the UK to seek funding or to create a team for a new business idea.  In contrast to the business visitor rules, migrants will be permitted to switch into the Tier 1 (Entrepreneur) from the Prospective Entrepreneur category without having to leave the UK.  However, unlike the business visitor category, entry clearance is mandatory for all nationals which may make this bridging category less attractive to non-visa nationals.

Tier 1 (Investor)

The Tier 1 (Investor) route for those bringing at least £1 million to the UK remains in place and will be enhanced. 

Initial leave will be granted for 3 years 4 months, with extensions for 2 years and settlement after 5 years.   New provisions will allow investors to qualify for accelerated settlement if they have invested larger sums: after 3 years for an investment of at least £5 million and 2 years for £10 million (in all case 75% of the investment sum must be invested in the prescribed types of the investment and the full sum maintained in the UK throughout the qualifying period).  Investors will be permitted to be absent from the UK for up to 180 days in any 12 months without jeopardising settlement.  

Changes to Tier 2

As previously indicated, the Tier 2 eligibility criteria will change and a new permanent annual limit on Tier 2 migrant numbers will replace the current interim limits.  Certificates of Sponsorship (CoS) will be subdivided into "restricted" (which are subject to the cap) and "unrestricted" (which are not subject to the cap) categories. 

The minimum skill threshold for Tier 2 jobs which may be sponsored will be raised from NQF level 3 to jobs at the 'graduate' level.  Migrants in this category, however, will no longer need to submit evidence of academic or vocational qualifications (though the sponsor must retain the appropriate evidence to support the CoS). 

Tier 2 (General)

Tier 2 (General) jobs to be filled by a migrant entering the UK from overseas and with a salary of less than £150,000 will be subject to an annual limit of 20,700. These jobs will fall into the "restricted" subcategory. Salaries less than £20,000 will not qualify under Tier 2 (General).  minimum English language requirement will be raised to intermediate level (B1 on the Council of Europe's Common European Framework for Language Learning).

The annual limit will be divided into monthly allocations for the UK Border Agency to award to sponsors, who must apply on a case by case basis for each specific migrant. If a month is undersubscribed, the balance will be added to the following month and if it is oversubscribed, the applications will be prioritised according to occupation.  Points will be awarded to occupations on the shortage occupation list (75 points), followed by occupations at PhD level that pass the Resident Labour Market Test (RLMT) (50 points) and then other occupations meeting the RLMT (30 points).  Points will be awarded for salary, ranging from 2 points for salaries of £20,000 and over to 30 points for salaries of £100,000 to £149,999.99 (as noted, salaries of £150,000 fall outside of the annual limit). A minimum of 32 points is required, therefore a role with a salary under £20,000 will not be sufficient.

Tier 2 migrants and pre-Tier 2 predecessor categories who are already in the UK under the pre-6 April 2011 Rules may extend without being subject to the annual limit or new requirements.

Tier 2 (ICT)

Tier 2 (ICT) is currently divided into three subcategories - Established Staff, Graduate Trainees and Skills Transfer.  After 6 April 2011, the Established Staff subcategory will be further divided into two sub-categories: Long Term Staff and Short Term Staff. 

Short Term Staff will be granted a maximum leave in the UK of 12 months, after which time they must spend a minimum of 12 months overseas before they may return in this sub-category.  Short Term Staff must have a minimum salary of £24,000 and must be paid equivalent to the UK appropriate rate for the job.

Long Term Staff may be granted leave for up to 3 years and 1 month with possible extension to 5 years.  Thereafter, they must spend 12 months overseas before they can return as a Tier 2 (ICT).  Long Term Staff must have a minimum salary of £40,000 and must be paid equivalent to the UK appropriate rate for the job.

Migrants in the Graduate Trainees and Skills Transfer subcategories will be granted a maximum leave in the UK of 12 months and 6 months respectively, after which time they must spend a minimum of 12 months overseas before they may return in either sub-category or a Short Term Staff subcategory.  Additionally, they must receive a minimum salary of £24,000 and must be paid equivalent to the UK appropriate rate for the job.  There will be no switching categories while in the UK permitted, but, migrants in the Graduate Trainee, Skills Transfer, or Short Term Staff subcategories may return as a Long Term Staff without having to spend 12 months overseas.

Current Tier 2 (ICT) migrants and pre-Tier 2 predecessor category migrants in the UK under the rules in place before 6 April 2011 may extend without needing to meet the graduate level job requirement or the new salary thresholds.  Those migrants in UK as Established Staff may apply to extend their stay beyond 5 years.  Where current Tier 2 (ICT) migrants qualify for Indefinite Leave to Remain, they will be required to evidence that they continue to earn at least the UK appropriate rate for the job they are doing.

Further changes to ILR

Tier 2 (General) Migrants and Work Permit Holders will be required to evidence that they earn at least the UK appropriate rate for the job they occupy and all applicants must be clear of unspent convictions. Except where transitional arrangements apply, skilled and highly skilled migrants will also be required to pass the 'Life in the UK' test before they will be granted ILR.