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IMPACT – MEDIUM
What is the change? The Home Office has published a statement of immigration rule changes that take effect April 6.
What does the change mean? The changes clarify that family members of U.K. citizens or residents who apply for permanent residence based on five years of residency in the U.K. must meet all eligibility criteria, including those dealing with immigration status and financial and English language requirements, at all stages of the application in order to be granted indefinite leave to remain. Other changes clarify when asylum applications can be rejected and when cultural festival performers may be paid on a visitor visa.
Background: The rules clarify the eligibility criteria for partners or parents of U.K. citizens and residents for purposes of attaining indefinite leave to remain based on five years of residency. The changes seek to confirm that all eligibility requirements must be met in order to qualify to apply for indefinite leave to remain in the U.K. through this route. The list of free cultural festivals for which foreign performers may be paid on a visitor visa has been updated for 2018 and 2019. (Normally, visitors are prohibited from conducting paid activities.) The full list is available at Appendix V of the Statement of Immigration Changes.
The rule changes also clarify that an asylum application will be inadmissible and will not be considered if an EU country has granted the individual refugee status or international protection status.
BAL Analysis: U.K. citizens and foreign residents who are applying for a partner or parent should be prepared to document that they have met all eligibility criteria for the entire five-year period. Visitors intending to perform at any of the listed free festivals may apply for a visitor visa even if they are paid for their performance.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2018 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
What is the change? Employers with annual allocations of Tier 2 certificates of sponsorship are reminded that the certificates will reset on April 6 and unless their renewals are automatic (for the same number as used in the previous year), they should be manually renewed.
What does the change mean? U.K. companies anticipating the need to sponsor migrants in an unrestricted Tier 2 category in the coming year should submit their requests now. Ad hoc requests during the year are accepted, but take eight weeks or can be expedited for a fee.
Background: The Home Office will review requests in accordance with the sponsor’s usage during the current allocation period, upcoming extensions and allowances for potential business growth where the company has provided strong justification. The request may be granted in full, in part or rejected. Employers whose requests are rejected will need to make ad hoc requests during the year when they have an immediate need to sponsor an individual. Ad hoc requests take eight weeks to process, or can be expedited to five to seven business days for a government fee of £200.
BAL Analysis: U.K. sponsors should assess their staffing needs for the coming year and submit any manual requests for additional Tier 2 certificates of sponsorship before April 6.
IMPACT – HIGH
What is the change? The allocated quota for Tier 2 restricted certificates of sponsorship (RCoS) has been exhausted for the month of February, the third consecutive month the quotas have been exhausted..
What does the change mean? Employers should anticipate that requests for Tier 2 General Certificates of Sponsorship with a salary of less than £50,000 per year have been refused and will need to be resubmitted in March.
Background: The annual quota for Tier 2 (General) visas is 20,700, allocated into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during the high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: BAL anticipate pressure on quotas through March and recommends that employers plan accordingly. The government is under pressure to reconsider roles on the shortage occupation list which are frequently sponsored, such as occupations with the National Health Service; however, in the meantime employers should consider salary as the deciding factor in the approval of an RCoS request. Companies that recruit higher earners will continue to be more likely to have their applications approved.
What is the change? A court in Belfast has ruled that an Irish woman born in Northern Ireland is an Irish citizen and has only ever been such. Under the 1998 Good Friday Agreement, people born in Northern Ireland can choose to be British citizens, Irish citizens or have dual citizenship. In this case the Home Office initially rejected a residency application for the woman’s American husband on the grounds that his wife was British, even though she never carried a British passport. The ruling enables the husband to acquire residency in the U.K. as the spouse of an EU national exercising free movement rights.
What does the change mean? The case may benefit other Irish passport holders in their ability to avoid stringent U.K. immigration rules and have their non-EU spouse join them.
Background: The Home Office rejected a residency application by Emma de Souza for her husband, a U.S. citizen. De Souza was born in Northern Ireland and never held a British passport. The Home Office alleged that under the British Citizenship Act 1981, she was automatically considered a British citizen and would have to apply for her husband as a third-country national. The Home Office said de Souza could renounce her British citizenship and then make the application, but she refused and sued.
A tribunal in Belfast ruled in her favor, citing her rights under the 1998 Belfast (Good Friday) Agreement. “Under the terms of the Good Friday Agreement, people of Northern Ireland are in a unique position within the United Kingdom. The British and Irish governments recognised the birthright of all the people of Northern Ireland to identify themselves as Irish or British, or both,” Judge Gillespie said.
The Home Office may not appeal to the tribunal, but it is weighing whether to directly appeal to a higher court.
BAL Analysis: The case has implications for others holding an Irish passport resident in the U.K. and married to a non-EU citizen who now may file a residency application pursuant to EU free movement rather than under the stricter U.K. spousal residency criteria.
What is the change? The U.K. government plans to double the immigration healthcare surcharge for visa applicants from £200 to £400 per person, per year (and from £150 to £300 per person, per year for students and Youth Mobility Scheme applicants).
What does the change mean? The change will affect new applicants after the implementation date, which has not been announced.
Background: The decision comes as the U.K. government faces mounting public protests demanding greater government funding to save the National Health Service. The healthcare surcharge was introduced in 2015 for all non-EEA nationals coming to the U.K. to work, study or join family for a duration longer than six months. The government has determined that the increase is needed to cover the actual costs of treating the non-EEA population.
BAL Analysis: The doubling of the healthcare surcharge represents a significant increase that employers and individuals should budget for starting this year. BAL will report when the implementation date is announced.
What is the change? U.K. Visa and Immigration has begun to impose stricter counting rules when considering permanent residency applicants who have been away from the U.K. during the requisite five-year period of continuous lawful presence.
What does the change mean? Under the new rules, applicants who are absent for more than 180 days within any rolling 12-month period during the five years may be disqualified for permanent residency. Previously, adjudicators only refused applicants who were absent for more than 180 days within any of the five separate consecutive 12-month periods preceding the application date.
Background: The change to the calculation method was published in the latest Statement of Changes to the Immigration Rules that took effect Jan. 11.
BAL Analysis: Employees and assignees planning to apply for permanent residency should be aware of the stricter criteria and be sure that their absences do not violate the new calculation rules by cumulatively exceeding 180 days in any 12-month period during the qualifying five-year residency period. If absences exceed those permitted, then employees should work with BAL to put forward a compelling case for the absences to be disregarded.
What is the change? As BAL anticipated last month, the allocation of Tier 2 restricted certificates of sponsorship (RCoS) has been exhausted for the month of January.
What does the change mean? Employers should expect that Tier 2 applicants whose salaries are below the threshold of £50,000 per year will be rejected and will need to be resubmitted in February.
Background: The annual quota for Tier 2 (General) visas is 20,700, allocated into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: U.K. employers should anticipate pressure on quotas through March and plan accordingly. Companies that recruit higher earners will continue to be more likely to have their applications approved.
IMPACT – LOW
What is the change? The U.K. Home Office is expanding a visa pilot program that eases immigration processing for international master’s students seeking to study in the U.K.
What does the change mean? The program will be expanded to 23 universities based on low visa refusal rates in their region. Currently the program is limited to four universities, Oxford, Cambridge, Bath and Imperial College of London.
Business impact: The program also allows the students to remain in the U.K. after they finish their courses for up to six months (as opposed to four months for other graduates), giving them more flexibility to obtain work and convert their student visa to a work visa.
Background: Under the pilot program, students applying to one-year master’s programs must still meet all Tier 4 visa requirements, but they qualify for a streamlined process that reduces the number of required supporting documents. The two-year pilot program began in 2016 with four universities and has now been extended for another year and expanded to the 23 universities listed below.
Universities added to the program
BAL Analysis: The expansion of the program is good news for non-EEA students and employers seeking to recruit from the 23 universities and is intended to attract more international students. It shows that the Home Office is taking a liberal approach in contrast to the tough talk on migrant numbers by the government and may be a sign the government’s stance on students is softening against fears that Brexit will deplete student talent and negatively impact the U.K. economy.
What is the change? The allocation of Tier 2 restricted certificates of sponsorship for the month of December has been reached, triggering a points threshold.
What does the change mean? To be approved in December, Tier 2 (General) applicants must earn a minimum of 65 points, which means they must have a Resident Labour Market Test and a salary of £68,000 or higher. However, there are reports—though unsubstantiated—of approvals with lower salary levels.
Background: The annual quota for Tier 2 (General) migrants is 20,700, apportioned into monthly quotas. In 2016, the monthly distribution was changed to provide higher quotas during high-demand months of April through September and lower quotas in other months, thereby shifting pressure on months at the end of the fiscal year (December through March). When the monthly quota is reached, applications are ranked by points obtained, with more points earned for shortage occupations, higher salaries, and certain Ph.D.-level roles.
BAL Analysis: The reaching of the monthly quota indicates increased demand for Tier 2 workers that could carry over to successive months. Companies that recruit higher earners will continue to be more likely to have their applications approved.
Copyright © 2017 Berry Appleman & Leiden LLP. All rights reserved. Reprinting or digital redistribution to the public is permitted only with the express written permission of Berry Appleman & Leiden LLP. For inquiries please contact copyright@bal.com.
The House of Commons narrowly defeated the government’s Brexit bill, voting 309-305 Wednesday to insert an amendment that will explicitly require any Brexit withdrawal deal to be approved by a vote of Parliament.
The government’s EU Withdrawal Bill is the U.K. national legislation that will remove all EU law from British statutes on the day of Brexit. Prime Minister Theresa May has sought greater latitude to negotiate and finalize a Brexit deal with the European Union without being explicitly subject to Parliamentary veto. The government has only indicated that Parliament would have a “meaningful vote” on the exit terms.
Some Tory MPs, led by Dominic Grieve, mounted a Conservative revolt, joining Labour and Liberal Democrats to pass the amendment. Grieve, a former attorney general, warned that without the amendment, the bill could lead to “constitutional chaos.”
Brexit secretary David Davis said after the defeat that the government will now consider whether to make further changes to the bill as it moves through Parliament.
EU negotiator Michel Barnier said there would be “no turning back” from commitments the U.K. made last week on phase one Brexit issues of EU citizens’ rights, the Irish border, and the divorce bill. Earlier this week, EU Council President Donald Tusk said it would be a “furious race against time” to complete Brexit negotiations in time. The parties will need to reach a Brexit deal by roughly September 2018 to give individual EU countries time to approve it before the deadline for the U.K.’s exit in March 2019.
BAL Analysis: Though a majority of MPs opposed the U.K. leaving the EU, they have repeatedly said they will honor the voters’ will. So while Wednesday’s vote will not reverse Brexit, it could give a stronger hand to those who want a softer break from the EU and closer future ties, potentially complicating the U.K.’s negotiating stance as it heads into Brexit trade talks early next year.