Changes to Point Based Immigration System, All You Need to Know.

Introduction

British citizens have an inviolable right to live in the UK and EU nationals (despite Brexit uncertainty) have the right to live and work in the UK either for someone or for themselves. This area of law just like other areas are dynamic. As such, there have been changes to the points-based system. Read on to find more about the changes and some good news especially for Tier 4 Visa students. Note that general visitors have no inviolable right to work and foreign students have a limited right to work (hourly restrictions). The following is derived from a 7th March 2019 explanatory memorandum by the Home Office.

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KEY POINTS

  • Tier 1 Migrants and changes (Start-up and Innovator)
  • Tier 2
  • Tier 4
  • Visitors too
  • Commonwealth citizens
  • Tier 5
  • Tier 5 Youth Mobility Scheme

Tier 1 Migrants and changes

Start-up and Innovator visa categories have been launched. These replace the existing Tier 1 (Graduate Entrepreneur) and Tier 1 (Entrepreneur) categories, which were subject to a review by a 2015 independent Migration Advisory Committee (MAC). The MAC had two main points: the Tier 1 (Graduate Entrepreneur) category, with its endorsement approach, was working well and should be expanded into a broader Start-up category and the Tier 1 (Entrepreneur) category was in need of substantial reform, as it had a long tail of low quality projects which contributed little or nothing to the UK economy.

Officially recognised as an exceptional talent within the fields of science, humanities, engineering, and art, an exceptional entrepreneur, a graduate with exceptional entrepreneurial skills and all investors are treated as Tier 1 Migrants. Also known as ‘high value migrants’

The exceptional talent tier 1 category refers to an individual who is renowned for their expertise in everything from the arts to the sciences. They need an official endorsement from the Home Office’s specified Designated Competent Body. (75 points) The number of people (under this category) allowed into the UK has been increased to 2000. At the request of Arts Council England, evidential requirements have been added, to bring this in line with requirements that their sub-endorsers impose on applicants and ensure clarity

The Tier 1 entrepreneur has to set up a business in the UK. There can be two entrepreneurs and they may take over an existing business as well. Minimum amount to invest is £200,000 where a person wants to invest in any type of business but the amount required to invest is £50,000 where the amount is invested in a Home Office approved source.

The Tier 1 investor for a person who is willing to invest at least £2 million in the United Kingdom.  The money must be held in a regulated financial institution and able to be withdrawn for use at a moment’s notice. This gives 75 points. The changes to the Tier 1 investor category mean that investments in UK government bonds are excluded. All banks that open an account on behalf of a potential tier 1 investor must carry out Know Your Customer checks to combat money laundering or embezzlement. The definition of “active and trading” companies is being strengthened so that there must be stronger evidence that such companies are trading in the UK and clarification is being made to confirm that “price of the investments” means the price the applicant paid for the investments, not the face value (which does not in itself demonstrate that an applicant has invested £2 million in the UK, as required by the rules). If investment funds were obtained unlawfully, then subsequent applications will be refused if evidence permits. The applicant must be in full control of the funds. Getting a loan to inflate your bank account may not suffice.

Tier 1 Graduate entrepreneur must have passed/obtained his degree from a Home Office approved HEI, they must be recognized as having developed a unique business idea or entrepreneurial skills in order to stay in the UK. This person is granted leave for 12 months and at the expiry, they may have to leave the UK unless they switch to another category.

Graduate Entrepreneur and Entrepreneur have to prove that they can support themselves in the UK.

Entrepreneur must hold at least £3,310 in personal savings for 90 consecutive days, ending no more than 31 days before the date of application. The Graduate Entrepreneur must hold at least £995 in personal savings for 90 consecutive days, ending no more than 31 days before the date of application.

Visa holders under the exceptional talent criteria will be able to apply for indefinite leave to remain after three years instead of five years

After scoring 75 points, the exceptional talent person and investor will not have to secure the remaining 20 points in the form of English Language and Maintenance Funds requirements. However, where an exceptional talent applies for extension after first three years, he/she has to fulfil the English Language criteria like the Graduate Entrepreneur and Entrepreneur

Note that Tier 1 Investors who entered the category before 6 November 2014 may rely on the un-mortgaged portion of their main home. The property must be certified to be the applicant’s main home. And in the case where the property is shared by tenancy in common (where each owner has a distinct interest) only the investors share may count.

Very important to note that The Start-up category is an expanded version of the Tier 1 (Graduate Entrepreneur) category. It is for those starting a new business for the first time in the UK. Applicants will not need to be graduates and the need to secure initial funding is nullified. Successful applicants will be granted 2 years’ leave (doubled from 1 year) and will be able to progress into the Innovator category to continue developing their businesses in the UK after that time.

“The Innovator category is intended for more experienced businesspeople. As well as an endorsement, applicants will need £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 (Entrepreneur) category). The funding requirement will be waived for those switching from the Start-up category who have made significant achievements against their business plans. The category may lead to settlement in the UK.” The baseline for gauging success will be viability, innovation and scalability

As these new categories are being transitioned into and the old categories are being replaced, a host of mitigating factors are being used to help those in the former categories.

Key ones include: Extension applications for Tier 1 (Entrepreneur) migrants remaining open until 5 April 2023, and settlement applications until 5 April 2025. Also Tier 1 (Graduate Entrepreneur) migrants will be able to switch into the new Start-up route if they have not yet had their maximum two grants of leave under the Tier 1 (Graduate Entrepreneur) route. If their Start-up endorsement is from the same endorsing body as in their previous Tier 1 (Graduate Entrepreneur) application, their business ideas will not need to meet the new Start-up criteria in relation to innovation and scalability.

Both routes will see endorsing bodies and business experts rather than the Home Office assessing applicants’ business ideas.

Tier 2

Includes skilled (general) workers, ministers of religion or sports persons and upon a successful application, they are granted limited leave to remain in the UK for three years which can be extended for two more years. Upon the completion of five years under Tier 2 Migrant Category, a person can apply for settlement

“Tier 2 General migrant must hold a job offer from a UK employer (licensed by the Home Office) The Tier 2 (General) category is the main immigration route for UK employers seeking to recruit non-EEA skilled workers. It is subject to an annual limit of 20,700 places, divided into monthly allocations.” Following a review published by the independent Migration Advisory Committee (MAC) on 19 January 2016, the Home Office increased the minimum salary threshold for Tier 2 to £30,000. A 3rd November 2016 Statement of Changes to the Immigration Rules provide an exemption from this increase and was introduced for nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin. The exemption was due to end in July 2019 but is being extended and will be reviewed as part of the introduction of the future border and immigration system.

“Changes are being made to amend the points table at Table 11D, used for allocating places to Sponsors under the Tier 2 (General) limit. This technical change is intended to maximise the monthly allocation of Tier 2 places within the annual limit. Under the current system, all monthly applications for Tier 2 places are awarded points based on attributes including on the level of salary – with priority given to applications with the highest salaries. 7.40 Salaries over £45,000 received 5 points for each £5,000 of salary. Wide bands, such as these, increased the chance that many applications would score the same number of points. If the limit was oversubscribed, this could result in Tier 2 applications being refused, despite there still being places available (as all applications with the same points must receive equal treatment and therefore must all be granted, or all refused). To address this issue, the Government has removed the bands and instead awarded one point for each £1,000 of gross annual salary. The effect of this change will mean more applications could be awarded within a monthly allocation, reducing potential refusals.”

Tier 2 Intra Company Transfers

Applies to existing employees of multinational organisations. These employees are generally transferred from outside the European Union by their overseas employer to a training position, or skilled job in a related UK entity. The transfer has to be for training and to fill a vacancy which cannot be fulfilled by British residents or EEA nationals and must be of graduate or higher level. The Home Office will specify and guide on the salary

A minister of religion is a religious worker within a recognised religion and anyone who ministers either regularly or occasionally, and may perform pastoral duties. This person can apply for a Tier 2 visa

An elite sportsperson or coach who would like to base himself in the UK, must be renowned and his employment must be beneficial to UK sport

Tier 2 General- Resident Labour Market Test exemptions will come into play when applicants have received many awards and fellowships. Also, RLMT exemptions extend to established research team members sponsored by an HEI or Research Council

 Health care sector workers pay rates are being brought into line with pay scales in England and the devolved administrations, and compacted in a new table.

A provision in the Sponsor Guidance is being incorporated; “it restricts how far a migrant’s start date may be put back before it becomes a prohibited change. The restriction nowapplies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.”

Note “The start date for employment cannot be pushed back by more than 28 days after entry clearance or leave to remain has been granted, or the start date as stated on the Certificate of Sponsorship, if later. This provision clears up some ambiguity which existed when the provision was first introduced in the Tier 2 sponsor guidance”

Tier 4

Tier 4 holders are not subject to the RLMT (on the part of the employer) when switching in country to a Tier 2 (the common route) and they will be permitted to switch to Tier 2 on completion of their course. Presently it requires students to pass their course before being able to switch to Tier 2. (The Good News! Or sigh of relief at least). Part time tier 4 students may not work during studies or have or bring dependants. They may also not switch visa categories in country.  “A clarification is being made to the time limits for study at degree level or above to confirm that time spent studying below the age of 18 will not count towards the limit. 7.47 A change is being made to Appendix C to make provision for Tier 4 (General) students, who are using funds from a financial institution which are being provided to them in the form of a loan, to meet the maintenance requirements. A further provision is being made for Tier 4 (Child) students to confirm funds are held or being provided to them by a foster carer or close relative”

Visitors too

Visitor Visa holders may permit visitors to “transit” if the visitors are holding a valid visitor visa. A visitor holding a C – visit visa or marriage / civil partnership visit visa will be allowed to transit. The need to obtain a separate transit visa is nullified but visitors will not be permitted to study at an academy or a school maintained by a Local Authority. Permit Free Festivals are events that are assessed as contributing to the cultural heritage of the UK and at which performers can, exceptionally, be paid for their participation as visitors. Visitors cannot normally receive payment from a UK source for any permitted activities they undertake here. The list has been updated for 2019-20. This is important because visitors are not normally permitted to work in the UK.

Commonwealth Citizens

who are at least 17 years of age or over and can prove that his/her grandparents were born in the UK who also wants to work in the UK and finally who can support himself without taking any public benefits

Where a person can fulfil the above conditions, he will be entitled to compulsory but limited leave to remain (visa) for 5 years. This category is not points based. The applicant has to prove that his/her grandparents were born in the UK (birth certificates will suffice for grandparents and parents)

Birth on a registered ship or aircraft also counts

Tier 5

The Jamaican Nursing Exchange scheme has been approved by the Government Authorised Exchange Schemes. Up to 20 nurses from Jamaica will be able to come to the UK to gain vital experience in NHS hospitals as part of an exchange scheme. It is known as “earn, learn, return” In return, NHS staff would be able to travel to Jamaica to share expertise the Jamaican health service and help them to improve their care. As reported by the Nursing Times the UK has been hit with a severe nurse recruitment crisis with trusts unable to find enough staff to fill vacant nursing posts.

Tier 5 Youth Mobility Scheme

To move Hong Kong from the list of countries without deemed sponsorship status to the list of countries with deemed sponsorship status, having now completed the required five-year qualifying period.

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This article is written by our Volunteer Kwaku Asihene Dapaah

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