New Immigration Rules - 6 July 2018
The latest Statement of Changes to the UK’s Immigration Rules has been published by the government and will come into force on 6 July 2018. At 51 pages it is not as long as some of its recent predecessors but nevertheless introduces some notable changes for both employers and employees including:
- Tier 2 (General) limit freed up - additional 8,000 Restricted Certificates of Sponsorship potentially available
- Indefinite Leave to Remain - calculation of absences changes
- Tier 1 (Exceptional Talent) category - new provisions widening the route
- Tier 1 (Investor) category - qualifying investments introduced
- Tier 4 (Students) - 12 more countries added including China
- Croatian nationals - free movement rights in line with other EU nationals
- Turkish ECAA business persons, workers and their family members - a new settlement route created
Tier 2 Restricted Certificate of Sponsorship
One of the most significant changes introduced is the removal of doctors and nurses from the annual Tier 2 (General) Restricted Certificate of Sponsorship (RCoS) cap. Employers who have a Tier 2 (General) sponsor licence and are looking to hire migrants from outside the UK for less than £159,600 gross per year must apply for a RCoS. The number of RCoS available to employers every year is limited to 20,700. Forty percent of this quota was previously assigned to workers in the NHS, leaving only 60 per cent of certificates available for those in other occupations. Since December 2017, the demand for RCoS has outstripped supply, effectively increasing the Tier 2 minimum salary threshold required to secure a RCoS. As a result, many sponsors have found their requests for RCoS refused. The government estimates that removing NHS workers from the cap should mean an additional 8,000 RCoS per year are available for those in other occupations looking to come to the UK to work. Eventually, this is likely to lead to the minimum salary requirements required for a RCoS reducing back to previous levels as there are more approvals. However, over the next few months, people that have been refused RCoS over the past few months may now find themselves competing with each other to secure one.
For more information about Rcos and the visa cap, please follow this link.
Calculation of absences for Indefinite Leave to Remain
In January we reported on the changes to the absence requirements for Indefinite Leave to Remain (ILR), following the government’s December Statement of Changes in the Immigration Rules.
The previous rules relating to absence calculations for ILR meant an applicant must not have been absent from the UK for a period of 180 days or more in any of the five consecutive 12 month periods preceding the date of their application. The result was that absences could neatly be divided into five blocks of 365 days from the date of application. This benefited applicants who regularly travelled outside the UK for business or leisure, as they could plan when to make their ILR application to ensure their absences fell in a way that did not breach the 180 day requirement.
The December Statement of Changes confirmed that the new rules relating to absence calculations would allow the Home Office to look at absences during any 12 month period across the five year period immediately preceding the ILR application. This means that if an applicant has been absent for more than 180 days in any 12 month period then their application would be rejected unless there were compelling circumstances for the absence. This could cause particular difficulties for those who wanting to settle in the UK but frequently travelling outside the UK (on business or otherwise). The December Statement also confirmed that the Home Office intended to apply this new rule retrospectively.
However, in the latest Statement of Changes the government has backtracked on its decision to make the change apply retrospectively. Instead, the new rules will not apply to absences which occurred during periods of leave granted before 11 January 2018. Only absences which occur during periods of leave granted from 11 January 2018 onwards will be subject to the tighter absence requirements. This is a welcome change as UKVI Policy have been steadfast in their decision to apply this Rule change retrospectively when they were challenged about this soon after the Rule changed happened earlier this year. Through effective lobbying by stakeholders in the field, the government has sensibly agreed to back off on its original decision.
Tier 1 Exceptional Talent
This route currently covers leading talent in the fields of science, humanities, engineering, medicine, digital technology or the arts and is open to 2,000 people a year. Those with a flair for fashion will be pleased to hear that this route will be widened to include those in the fashion industry who are operating “leading designer fashion businesses”. What constitutes a leading designer fashion business will be determined by the British Fashion Council, under the endorsement remit of Arts Council England (ACE).
The route has also been opened up to a wider pool of TV and film applicants under ACE’s remit, by changing the list of eligible industry awards and how recently applicants must have won or been nominated for them.
Tier 1 Investor
Currently applicants under this route are required to submit a portfolio as evidence that their investments have been maintained at the required level and this must have been signed off by a financial institution regulated by the Financial Conduct Authority (FCA). The new changes now require the financial institution to also confirm that the applicant has only invested in qualifying investments and that the investments have no loans secured against them.
Another welcome change for Tier 4 students is that the Home Office has expanded the list of countries from which students will be able to benefit from a streamlined application process. Along with China, students from an additional 11 countries will be able to provide a reduced level of documentation when applying for their Tier 4 visa. All students from these countries still need to meet the strict requirements under Tier 4 and UKVI can do random sample checks and request full documentation for certain applications if they wish. Overall, it will improve the processing times for many applicants who want to come and study at the UK’s world-leading schools, colleges and universities.
As of 1 July 2018, Croatian nationals will fully benefit from free movement rights in line with other EU nationals and therefore will no longer be required to obtain the right to work in the UK. This means that they will now fall under List A of the current Home Office Right to Work checklist. As a result, employers will need to do the Right to Work check only once prior to employment, in the precise format required to establish a continuous statutory excuse for their Croatian national new hire. By comparison, List B migrants are only offered a time limited statutory excuse and a re-check of their right to work is required at the expiry date of their grant of leave (permission to live and work in the UK).
Turkish workers and business people who are in the UK with leave under the EU-Turkey European Communities Association Agreement (ECAA), also known as the Ankara agreement, will be able to apply for ILR after five years of continuous residence in the UK, as long as the most recent period of leave is under the ECAA. This follows the government’s decision earlier this year to withdraw the right to apply for ILR for people in the UK under the ECAA. This turnaround is likely due to a BREXIT, particularly as Turkey may be lined up to join the EU in the future. Although from recent news reports this may be some years away.
If you have any questions relating to the changes and how they might affect you or your organisation, please get in touch with Anita de Atouguia or another member of our immigration team on 0207 329 9090 or email firstname.lastname@example.org .
The articles published on this website, current at the date of publication, are for reference purposes only. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your own circumstances should always be sought separately before taking any action.