UK: Business Immigration - Amendment To Immigration Rules On 22 November 2012

Last Updated: 5 December 2012
Article by Shahram Taghavi


Yesterday (22 November 2012) the Government made changes to the Immigration Rules. This is the eighth amendment to the Immigration Rules in 11 months. The changes introduced yesterday relate to Tier 1 (Entrepreneur), Tier 1 (Investor), Tier 2 (General), Tier 2 (Intra-Company Transfer), Tier 4 (General), Tier 5 (Temporary Worker) and Tier 5 (Youth mobility scheme) migrants. There were also changes to the Rules relating to applications for settlement (indefinite leave to remain) by Tier 1 (General) and Tier 2 migrants.

The changes were laid before Parliament on 22 November 2012 and the majority will come into force on 13 December 2012, with the remainder coming into force from 1 January 2013 and 28 February 2013. Some changes represent a relaxation of current Rules, whilst others tighten the current Immigration Rules. The majority of the changes in the new Immigration Rules are an attempt by the UKBA to comply with the recent Supreme Court decision of R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants Intervening) [2012] 1 WLR 2208.

Supreme Court decision in Alvi

Alvi was a case that arose from an appeal by the UKBA against JCWI's successful judicial review challenge to the legality of the interim immigration cap introduced by the Government in 2010 in the case of R (JCWI) v Secretary of State for the Home Department [2010] All ER (D) 244 (Dec). The lead lawyer in both the Alvi and JCWI cases was Charles Russell's Head of Immigration Shahram Taghavi. In July of this year the Supreme Court in Alvi dismissed the Secretary of State's appeal and ruled that the Immigration Rules (which have to be laid before Parliament for approval) should include all visa criteria which will or might be determinative of a visa or settlement application and that the Secretary of State cannot rely upon requirements set out in her Tier 2 "Guidance" documents to refuse applications for visas for Tier 2 migrants.

Since the Supreme Court's ruling in Alvi, the UKBA has made a number of rushed changes to the Immigration Rules (including the changes introduced yesterday) in order to import any requirements in Guidance documents into the Immigration Rules. This has and will continue to make the exact law clearer for employers and migrants, as all mandatory provisions will be found in one place: the Immigration Rules.

Earlier changes to the Immigration Rules

As mentioned above, this is the eighth amendment to the Immigration Rules in eleven months and follows the numerous earlier changes to them. The main changes to the Immigration Rules introduced in the last two years include:

  • Closing Tier 1 (General) category.
  • Closing Tier 1 (Post - Study Work).
  • Introducing an accelerated settlement (ie indefinite leave to remain) criteria for Investors and Entrepreneurs.
  • Creating the Tier 1 (Exceptional Talent) and Tier 1 (Graduate Entrepreneur) routes.
  • Applying a limit on the number of migrants who can be employed under Tier 2.
  • Raising the skills levels for Tier 2 migrants to graduate level.
  • Introducing the maximum permitted years of leave to six for Tier 2 (General) migrants and five for Tier 2 (Intra-Company Transfer) migrants.
  • Introducing an unpopular 12 month "cooling off" period.
  • Introducing in 2016 a minimum salary threshold for Tier 2 migrants seeking settlement (indefinite leave to remain).
  • Restricting the entitlements of Tier 4 (General) migrants.
  • Tightening the English language requirements.
  • Making various changes to the sponsorship regime for educational providers.
  • Introducing a new visitor route for "permitted paid engagements" for professionals coming for short-term fee paid activities.

The changes that may be of relevance to your business

The changes in this bulletin are limited to business immigration changes that we believe may be of relevance to your business. Please feel free to contact us if you would like to receive the bulletin relating to the personal immigration changes.

The following is a brief summary of the main changes introduced yesterday:

  • The maximum stay in the UK for senior Tier 2 (Intra-Company Transfer) migrants earning £150,000 or above will be increased from 5 years to 9 years.
  • The operation of the Tier 2 (General) and Tier 2 (Intra-Company Transfer) "cooling off" rule will be made more flexible so that the cooling off period can start from the earliest date that the migrant can demonstrate departure from the UK, rather than the date of expiry or curtailment of Tier 2 leave. This change will mean that it is no longer necessary for migrants to rely on curtailment from the UKBA to start the "cooling off" period. The onus will, however, be on the migrant to demonstrate that they have left and remained outside the UK earlier than the expiry of their leave.
  • Changes will be made to the Code of Practice and the Resident Labour Market Test requirements for salaries and recruitment practices relating to barristers and pupils sponsored under Tier 2.
  • Migrants in Tier 2 and Tier 5 (Temporary Worker) will be permitted to undertake an additional 20 hours a week supplementary employment in a shortage occupation, even if this is a different occupation to the one they are being sponsored to work in.
  • A new 12 month work experience/professional teacher training scheme, run between South Korea and the University of Chichester, will be added to the list of approved Tier 5 (Temporary Worker – Government Authorised Exchange) schemes.
  • The Tier 5 (Temporary Worker - International Agreement) sub-category will be amended to make more specific provision for contractual service suppliers employed by overseas businesses seeking admission in the context of the supply of a service to a UK client and where relevant commitments in certain international trade agreements to which the UK is a party are engaged.
  • As with Tier 2, a change is being made to permit Tier 5 (General) migrants to take up supplementary employment in a shortage occupation, even if this is a different occupation to the one they are being sponsored to work in.

There will be an increase in the 2013 Tier 5 (Youth Mobility Scheme) allocation of places for Australia (from 32,500 to 35,000 places), Canada (from 5,000 to 5,500 places) and South Korea (minimum 1,000 places). Allocations for all other participating countries will remain the same in 2013 as those in 2012.

  • Tier 1 (General) and Tier 2 migrants will be permitted absences of up to 180 days in each 12 calendar month period of their qualifying period, in line with Tier 1 (Investor) and Tier 1 (Entrepreneur) migrants. However, absences must be for a reason that is consistent with the person's employment or economic activity so for example business trips, conferences, research collaborations, periods of annual leave or for serious or compelling reasons such as the serious illness of a close relative.
  • Tier 1 (Investor) migrants will no longer be able to work as professional sportspeople and will therefore have to comply with the Sports Governing Body Tier 2 and Tier 5 endorsement criteria.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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