A new statement of changes to the immigration rules was published on 11 December 2018 to laid before the Parliament.
The changes are introduced in;
- Tier 1 of the point-based system
- Pilot scheme for short-term agriculture workers
- Tier 2 and Tier 5 of the Points-Based System (PBS)
- Tier 4 of the point-based system
- Expansion of domestic violence settlement scheme to cover refugee
Changes relating to Tier 1 of the Point Based System
Tier 1 of the Points-Based System caters for high value migrants and consists of four active categories: Tier 1 (Exceptional Talent), Tier 1 (Investor), Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur).
- Tier 1 Exceptional Talent. The Home Office has further widened the endorsement criteria which was applicable to Arts applicants has included the field of architecture. These applicants will be assessed by the Royal Institute for British Architects operating within the endorsement remit of Arts Council England.
- Additionally, the entry clearance for 1 years will now include a 4 months additional leave to meet the qualifying period for settlement and reduces the likelihood that they would have to apply for further extension applications.
- Other changes are being made to the criteria for endorsement by each Designated Competent Body, at those bodies’ requests. These include changes to the evidential requirements for digital technology applicants who, as a result of the Tech Nation online application form, are no longer required to supply paper copies of their specified evidence to the Home Office; and amendments within Arts Council England rules to ensure consistency across its sub endorsers.
Pilot scheme for short-term agriculture workers
The introduction a new pilot scheme for 2019 under Tier 5 Temporary workers, to enable non-EEA migrant workers to come to the UK to undertake seasonal employment in the horticultural sector for applicants over the age of 18. The statement of changes introduces a new Appendix U for this purpose. The formal date of implementation for this pilot will be announced in due course.
Changes relating to Tier 2 and Tier 5 of the Points-Based System (PBS)
A number of changes are introduced to the routes of Tier 2 and Tier 5 of the point-based system. These include;
- A change is being made to include the Academic Technology Approval Scheme (ATAS) requirement for Tier 2 (ICT) applicants extending leave in the United Kingdom. Applicants in all PBS routes are required to obtain an ATAS certificate before studying a postgraduate qualification in certain sensitive subjects, knowledge of which could be used in programmes to develop weapons of mass destruction (WMDs) or their means of delivery. The requirement for ICT extension applications had previously been excluded in error;
- Categories under Tier 5 of the point-based system including Religious Worker and Charity Worker migrants will be subject to a 12-month cooling off period. This means that, after they have left the UK on the expiry of one of these visas, they will need to wait 12 months before re-entering the UK in the same category. According to the explanatory memo, this change will “prevent migrants from applying for consecutive visas, thereby using the routes to live in the UK for extended periods, so as to reflect the temporary purpose of the routes better”.
- Tier 5 Religious Workers, who may come to the UK for up to 24 months to do religious work, such as preaching or working in a religious order, will no longer be able to come to the UK to do “preaching and pastoral work”, or take the role of “minister of religion”. Those who do wish to come to the UK as Ministers of Religion will, instead, need to be sponsored as Tier 2 (Ministers of Religion) migrants. According to the explanatory notes, “this will ensure that the needs of religious establishments are still catered for within Tier 2, whilst drawing a clear distinction between the two routes and ensuring that no loophole exists within Tier 5”.
- The definition of “professional sportsperson” is more detailed, setting out more explicitly the indicators that will be considered when assessing whether a migrant is playing sport in any capacity, other than that of an “amateur”.
- Tier 2 (Intra-Company Transfer) migrants will be needing to apply for an Academic Technology Approval Scheme (ATAS) certificate if they wished to study a postgraduate qualification in certain sensitive subjects.
- The rules now include reference to the appropriate salary to be paid to nurses or midwives who are undertaking the Observed Structured Clinical Examination (OSCE) to obtain Nursing and Midwifery Council registration until registration with the Nursing and Midwifery Council Registration is either successfully completed, otherwise closed, or after 8 months of the stated employment date, whichever is earlier. The relevant salaries are between £16,597 and £17,760 (there are different rates in England, Scotland, Wales and Northern Ireland).
- A code of practice has been inserted for organisations wishing to sponsor fashion models. According to the explanatory memorandum, this was the result of a “collaboration with Industry representatives and the British Fashion Council”. The code includes a set of criteria to which sponsors must adhere when recruiting top models, commercial models and “new faces”. A British Fashion Council approved panel will be put in place to endorse specific models with real potential that are unable to fulfil the required criteria. Bottom line: if you are representing models or those sponsoring models, make sure that you are familiar with this new code of practice.
- In Appendix N, the list of organisations permitted to directly sponsor researchers under the ‘UKRI – Science, Research and Academia’ scheme has been expanded. In addition, the description of the ‘Sponsored Researchers’ scheme has been amended to “describe more accurately the activities permitted under this scheme”.
Changes relating to Tier 4 of the Points-Based System
The explanatory memo states that they reflect changes “arising from the higher education reform in England, including the introduction of the Office for Students, and so that institutions in the Devolved Administration have the same ability to offer privileges to their students as institutions in England”. I am not familiar with that education reform! These changes will not come into force until 1 August 2019 so hopefully if there are major changes, we immigration practitioners need to be aware of, they will become clearer closer to the time.
Coming into effect on 10 January are some minor changes to Appendix C, relating to evidence of funds for students. These are to make clear that Tier 4 applicants, who rely on student loans or funds from official financial sponsors, are not required to demonstrate that the funds have been held for a period of 28 consecutive days.
Expansion of domestic violence settlement scheme to cover refugee
Under existing rules, the Home Office will allow someone who has come to the UK under Appendix FM to stay in the country permanently if the relationship breaks down because of domestic abuse. As a result of the statement of changes:
- Eligibility for indefinite leave to remain, as a victim of domestic abuse under paragraph E-DVILR.1.2 and 1.3, is being clarified to include partners of people with refugee status who have not yet been granted ILR.
- A good day for victims of domestic abuse, and indeed for Lesley Irvine, who represented Mrs A in the Court of Session (instructed by Drummond Miller).
- The terminology has also been updated. Appendix FM will now refer throughout to “domestic abuse” rather than “domestic violence”. We understand that this is to recognise that domestic abuse can exist without physical violence.
Other minor changes
The rules relating to ancestry visas have been amended. An applicant does not need to submit evidence relating to the reason for their absences from the UK during the five-year continuous period leading to indefinite leave to remain (this was an “erroneous reference” in the first place apparently).
The rules introduce a paragraph relating to the Tier 5 (Youth Mobility Scheme) ensuring that in the event of a future delay in setting the annual quotas, a portion will automatically become available to partner countries, ensuring that the route continues to function.
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