Search
Contact
Login
Share this article
IMPACT – HIGH
What is the change? The Home Office has released a statement of changes to the Immigration Rules covering nearly all U.K. immigration categories.
What does the change mean? Among the changes, there are new rules and criteria for Tier 2 and Tier 1 categories under the points-based system and an expansion of permitted activities under Business Visitor visas.
Background: The U.K. Immigration Rules have undergone sweeping changes across all immigration categories, as well as on cross-cutting issues such as replacing appeal rights with administrative review (as set up by the Immigration Act 2014). We have summarized the changes most relevant to corporate employers below.
TIER 2 CHANGES:
BUSINESS VISITORS:
Business Visitor visas will permit new activities as long as the individual remains paid and employed overseas. The new activities are:
TIER 1 CHANGES:
BAL Analysis: The new law encompasses a multitude of changes across the board. The changes to the Tier 2 category will have the biggest impact for corporate employers, who use this to move their global workforce. The Home Office’s intent to strengthen the Resident Labour Market Test and require that employers conduct a “genuine” search for a “genuine” role means employers should be very careful regarding recruitment practices as well as “overmanaging” any Tier 2 visa process. The language introduces a further level of subjectivity into the decision-making process in what should be an objective points-based system.
The changes to the Business Visitor category show a broadening of the category. We anticipate deep levels of change over the coming year to bring business visitor rules further in line with commercial realities.
Changes to the Tier 1 routes for the most skilled/valuable migrants to the U.K. are broadly welcome. The Exceptional Talent category is so tight in its definition of success that it does not form a realistic route for globally mobile professionals – the changes arguably do not go far enough to make this a meaningful immigration option. The increase in investment under the Investor category was widely anticipated, given that the amount has not increased in the last 10 years. An increase to £1.6 million would have been the level of inflation, but the increase to £2 million is legitimate, as are reforms to make investment in the U.K. clearer. The Entrepreneur category has been highly subscribed and so changes to clarify where monies are held will prevent further perceived abuse.
BAL is closely following the changes and will provide detailed analysis of these and other important changes in subsequent news alerts.
This alert has been provided by the BAL Global Practice group in the United Kingdom. For additional information, please contact uk@bal.com.
Copyright © 2016 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.
IMPACT – MEDIUM
What is the change? The United Kingdom and Ireland have entered into an agreement to ease business and tourist travel in the two countries for Chinese and Indian nationals.
What does the change mean? Chinese and Indian nationals will soon be able to visit both the U.K. and Ireland on a single trip and with a single visa. They no longer need to apply for separate visas for the U.K. and Ireland in advance of travel – one visa will cover both countries.
Background: The U.K. government issued guidance on the new visa arrangement Oct. 6. It called the U.K.-Ireland agreement “one part of a joint program of work aimed at strengthening both countries’ borders.” The agreement will allow Chinese and Indian travelers to travel, for example, from London to Dublin without obtaining a second visa. Ireland’s Frances Fitzgerald, minister for justice and equality, said the change will “benefit the Northern Irish economy in particular” by making it easier to travel from Ireland to Northern Ireland, which is on the same island as Ireland but is part of the U.K.
BAL Analysis: The change will make it easier for Chinese and Indian nationals to travel to the U.K. and Ireland. It should be noted, however, that the switch applies only to certain travelers.
Chinese and Indian nationals will be able to travel to the U.K. and Ireland on the following U.K. visas: General Visitor, Business Visitor, Child Visitor (when accompanied), Student Visitor, Family Visitor, Entertainer Visitor, Private Medical Treatment Visitor, Sports Visitor, Parent of a Child at School, Prospective Entrepreneur, and Permitted Paid Engagement, and approved destination scheme. They can travel to the U.K. and Ireland using short-stay Irish visas to visit Ireland as a tourist, to visit family or friends, to attend a conference or event, or for business.
The program does not cover visitors in transit or visitors for marriage or civil partnership. Chinese and Indian nationals will also have to apply for a separate U.K. visa if they are traveling to Ireland on work or study visas. Travelers must travel first to the country for which they have a visa.
What is the change? An implementation schedule for “right to rent” checks – the requirement that all private landlords check tenants’ immigration status – has been announced in Parliament.
What does the change mean? The “right to rent” checks will be piloted and then introduced in phases based on location beginning Dec. 1, 2014 in the Birmingham and West Midlands area.
Background: The Immigration Act 2014 introduced the requirement that private landlords conduct document checks to identify all potential tenants’ legal immigration status in the U.K. and therefore their “right to rent.” Landlords found to be noncompliant face fines of £80 to £3000. The “right to rent” checks are part of a raft of changes to make life in the U.K. harder for undocumented migrants. The requirement is controversial amongst migrants’ rights groups, and UKVI has provided very little detail, other than to reassure landlords and companies renting property that UKVI would pilot the scheme in a limited geographical area and seek feedback prior to the national rollout.
Yesterday, James Brokenshire, Minister of Security and Immigration, announced in the House of Commons that the initial rollout area is Birmingham, Wolverhampton, Dudley, Walsall and Sandwell. The Home Office has also published a “Code of Practice on Illegal Immigrants and Private Rented Accommodations,” confirming the civil penalties for landlords and their agents and introducing an online “right to rent” tool that should assist landlords in checking immigration status documents.
BAL Analysis: The “right to rent” check requirement will impact relocation companies, HR companies, landlords and rental agents. It will require significant time, effort and expense to understand the requirements, put in place compliance procedures and conduct initial and follow-up document checks to verify tenants’ immigration status. UKVI is actively seeking feedback on the “right to rent” tool. Please discuss this with BAL if you are operating in the Birmingham and West Midlands area – sharing and lobbying on corporate experiences at this stage could have a significant impact on the rollout of the scheme nationwide.
What is the change? The U.K. is rolling out a new biometrics requirement for visa applicants under 5 years old.
What does the change mean? Children under 5 must attend a biometrics appointment to have digital photos taken as part of the entry clearance application.
Background: In the past, children under 5 years old were exempt from the requirement to provide biometrics (a digital photograph and fingerprints) at the visa application centre prior to making an entry clearance application–for example as a PBS (points-based system) dependent. Under the new requirement, all applicants for entry clearance, including adults and children regardless of their age, must make an appointment at a visa application centre to provide biometrics. Children under 5 years old will sit for a photo only but will not be required to give their fingerprints. The Consulate General of the U.K. in New York has confirmed that the rule will be introduced later this year in the U.S. when the biometrics equipment is in place.
BAL Analysis: Parents applying for U.K. visas should be aware of this change and ensure that they make appointments to bring their children, regardless of age, to provide biometrics.
IMPACT – LOW
What is the change? The United Kingdom will begin offering 24-hour “super priority” visas to Chinese nationals.
What does the change mean? For a payment of £600, Chinese nationals may receive British travel visas in less than 24 hours.
Background: The U.K. launched a same-day “super priority” visa service for Indian travelers in 2013 and will extend this service to Chinese travelers beginning in August. The number of Chinese nationals visiting the U.K. has risen sharply – last year, the U.K. issued 40 percent more visitor visas to Chinese nationals than in 2012.
The U.K. is also weighing a single application procedure that would allow Chinese visitors to apply for a Schengen visa at the same time. In addition, a new joint British/Irish visa scheme to begin this year will allow Chinese visitors to travel to both countries on either an Irish or British visa.
The £600 government fee for the “super priority” visa (about US $1,000) will be in addition to the standard application fee of £83 but does not assure a visa. Visitors must still meet all U.K. immigration rules.
BAL Analysis: Though expensive, same-day visa processing provides an option to Chinese business visitors who need to travel to the U.K. on short notice.
What is the change? The U.K. is tightening its rules on Tier 1 (Entrepreneur) visas to crack down on abuse.
What does the change mean? Tier 4 (Student) and Tier 1 (Post Study Work) visa holders will now be restricted from switching in-country into Tier 1 (Entrepreneur).
Background: The new restriction was published today in a statement of changes in immigration rules after an initial investigation found that tax records of those granted leave as entrepreneurs did not evidence genuine entrepreneurial activity and showed that a significant number took up employment in violation of the conditions of their status.
Despite the new restriction and ongoing fraud investigation, the Tier 1 (Entrepreneur) category remains open. Those who already have leave in the category will continue to be able to extend their stay. The new restrictions will not apply to those qualifying on the basis of seed funding or funding provided by another government department. In the case of those switching from the Tier 1 (Post Study Work) route, the restriction will not apply to those who have already established genuine businesses. Those who graduate in the U.K. will continue to be able to apply to extend their stay under the Tier 1 (Graduate Entrepreneur) category, which is significantly undersubscribed. Entrepreneurs with genuine intentions of establishing businesses in the U.K. will also continue to be able to apply from overseas.
BAL Analysis: There has been an increase in the use of the Tier 1 (Entrepreneur) route, in some cases to avoid some of the strictures of other points-based system categories. These changes amount to a tightening of the scheme and are in the best interests of genuine business by preventing abuses.
What is the change? The Home Office has removed discredited language-testing firm Educational Testing Service (ETS) from its list of approved testing centers.
What does the change mean? As of July 1, ETS will no longer be an approved provider. Treatments of various applications with ETS test results are detailed below.
Background: Since February, ETS has been suspended as a language-testing provider following a BBC investigation that uncovered fraud in English tests administered by ETS. The Home Office then put on hold all pending immigration applications relying on ETS test results.
On June 10, the Home Office published a new statement of changes in immigration rules HC 198, officially removing ETS from Appendix O (the list of approved providers) as of July 1. Existing ETS test results, however, will be accepted for the following:
BAL Analysis: Applicants who tested with ETS should determine which immigration rules apply to them according to the transitional provisions published by the Home Office and submit applications as soon as possible before the relevant date – July 1, July 22, or Oct. 1. BAL has never recommended use of ETS where there is an English testing requirement; therefore, we do not perceive a significant risk to our clients. Nevertheless, BAL attorneys are available to answer any questions. .
What is the change? Today, the U.K.’s Immigration Bill received Royal Assent – the Immigration Act 2014 is now in force.
What does the change mean? The law will make life more difficult for undocumented migrants in the U.K. by restricting access to housing, banking, healthcare and other services. However, the depth and breadth of the provisions will impact all British citizens and foreign nationals in the U.K. and create significant administrative burdens.
Background: The bill was heavily debated as it moved through Parliament, mostly focusing on legal arguments, such as enforcement, appeals and human rights. However, the Immigration Act’s potential impact on corporate employers and employees (whether British citizens or foreign nationals) is significant.
Some key provisions impacting employers include:
BAL Analysis: While the new law discourages illegal migration, it imposes new costs associated with administering and regulating a “tighter” system. Employers are likely to feel the impact of the Immigration Act in their pockets, due to several additional direct costs and administrative processes.
Notably, the residential tenancy provisions will likely impact any relocation company or HR team that assists with home searches for employees, as the rules apply equally to domestic and international tenants. Given the difficulties companies experience conducting right-to-work checks in the employment arena, BAL anticipates considerable confusion amongst landlords and agents, and ultimately the development of a right-to-work service, whose cost will be borne by the employer or tenant.
What is the change? The U.K. Home Office has launched a pilot program in which Tier 2 (General) foreign workers will automatically have their passports and/or biometric residence permits (BRPs) returned to them seven to 10 days after applying for permanent residence.
What does the change mean? Tier 2 (General) foreign workers who have five continuous years of residence in the U.K. will be able to use their passports for travel and other purposes while their applications for Indefinite Leave to Remain (permanent residency) are processed.
Background: Currently, those applying for ILR under Tier 2 (General) of the Points-Based System in the U.K. must submit their original passports and biometric residence permits (BRP) to the Home Office. If applying by post, their documents are not returned until the completion of the processes, which can take up to six months. Beginning May 6, 2014, applicants will automatically receive these documents back within seven to 10 days of filing their applications and before a decision has been made on their applications.
The passport-return service launched as a pilot in July of last year for applicants in the Tier 2 Intra Company Transfer (ICT) visa route. Feedback was positive and encouraged the U.K. Home office to expand it to other visa categories. Passports and BRPs will be returned automatically to all postal applicants – it is no longer necessary to specifically request their return.
Crucially, having both passport and BRP will allow applicants to travel while their ILR applications are pending. If the Tier 2 (General) visa has expired, a Tier 2 migrant should be able to rely on the fact that the ILR application is outstanding with the U.K. Home Office when seeking entry to the U.K.
BAL Analysis: The passport-return service is a customer-focused solution intended to minimize the impact of lengthy U.K. Home Office processing times for postal ILR applications. The expansion of the service to include Tier 2 (General) applicants, as well as Tier 2 (ICT) applicants, is a positive development. However, from a practical perspective, BAL continues to recommend that ILR applications be submitted on the priority service to ensure the fastest processing times and minimal disruption to work and ability to travel.
What is the change? The U.K. Home Office has released a “draft code of practice on preventing illegal working” that updates rules regarding civil penalties on employers who employ undocumented workers.
What does the change mean? The draft code contains some sweeping changes to right-to-work checks required by employers and dramatically raises the maximum financial penalties for noncompliance.
Background: The draft code of practice for preventing illegal working details the Home Office’s civil-penalty scheme for employers and updates the code from February 2008. The draft code has been approved by the secretary of state and presented to Parliament.
These are the major changes:
BAL Analysis: The changes in the draft code generally reduce the burden on employers in conducting right-to-work checks. In particular, the elimination of annual follow-up checks of employees on temporary stay visas will reduce administrative headaches for employers. However, the substantial hike in maximum penalties for employing workers illegally makes it critical for employers to correctly perform the checks and get their internal procedures in place.