Changes to the Immigration Rules – October 2013
On 6 September 2013, the statement of proposed changes to the Immigration Rules was laid in Parliament. The majority of these changes come into effect from 1 and 28 October 2013.
By way of an overview, the most important proposed changes are as follows:
Changes relating to the Points-Based System
There are changes being made to the Exceptional Talent category. Although, currently, there are few permissions issued under this route, the Arts Council criteria for endorsing applicants are changing. This is to add an option for endorsing applicants showing a potential to become a world-leading artist or an internationally-recognised expert within the fields such as dance, music or theatre.
In response to the representation from businesses, the decision has been made to remove the English language requirement for Tier 2 (ICT) applicants who wish to extend their stay beyond 3 years. Since this category ceased to lead to settlement in 2010, there is no need to address integration requirements anymore.
Another change relates to Tier 2 (General) applicants as the rule forbidding applicants from owning more than 10% shares in their Sponsor's business is being waived for high earners i.e. those earning £152,100 or more.
Tier 4 and Tier 5
Again, in response to representations from businesses to make it easier to recruit graduates with specialist skills, students who have completed degree in the UK under Tier 4 category will be selectively allowed to undertake corporate internship as long it is directly related to their degree. This will be included within the Tier 5 Government Authorised Exchange sub-category and the stay will be limited to 12 months. In addition, the roles will have to be supernumerary.
There is a small change to the Youth Mobility Scheme of Tier 5 category as Hong Kong will now be one of the participating countries with the annual allocation of places set at 1,000. The allocation for Australia has been increased to 38,500 places in response to a higher number of British youths participating in the reciprocal scheme.
A "Genuineness test"
There is a re-occurring theme of expanding the use of a "genuineness" test across the introduced changes.
The categories affected are Tier 1 (General) where a "genuine earnings" test is being introduced. The purpose of this test will be to give the caseworkers greater powers to test the evidence where there is a suspicion of abuse. The introduced change states that the balance of probabilities will be assessed. The factors taken into account may be such as evidence submitted and whether it appears that the money "have been earned through genuine employment" or "the business from which the earnings are claimed can be shown to exist and be lawfully and genuinely trading".
In Tier 1 (Entrepreneur) category, a "genuine entrepreneur" test is being slightly amended to give caseworkers more flexibility as they may choose not to use the test if rejecting an application on other grounds.
A "genuineness" test is also introduced into Tier 2 (Minister of Religion) category to ensure that the applicants under this category are genuinely intending and also are capable of carrying the role that they are applying for and will not undertake any other employment in the UK. Under these new powers, the Secretary of State may request additional information, evidence or order an applicant to attend the interview to assess whether the requirement is met.
A "genuineness" test is now being extended to students under Tier 4 (General) applying for leave to remain, as previously it covered only to those applying for entry clearance. The provision to allow the decision maker to assess the applicant's ability to speak English will also be added.
Furthermore, the Tier 5 (Temporary Worker) category is also being amended to introduce a "genuineness" test.
The wider use of "genuineness" test is being introduced to give the decision makers powers to address concerns that each category is used in accordance with its purpose.
The rules provide the immigration officer with scope to ask for further evidence, but he is not obliged to do so before making the decision.
Dependants in the Points-Based System and other work routes
The change is being made to the restrictions on switching into the status of a Points-Based System dependant. Currently, only applicants who entered the UK as dependants can apply in-country. This is being amended to allow all migrants to apply in-country as dependants, provided that they are not illegal entrants or visitors on temporary admission or temporary release.
A restriction on switching from being dependant into the main applicant remains in force.
The Knowledge of language and life in the UK requirement
There are significant changes being introduced to the Knowledge of language and life in the UK requirement for settlement and naturalisation. From 28 October all applicants (unless falling under the exempt category) will be expected to meet the new requirement consisting of the following two elements:
- Life in the UK test – which remains the same as revised in March 2013;
- A speaking and listening qualification in English at B1 on the Common European Framework of References for Languages.
The applicants, who already have satisfied the requirement in a new form, when applying for example for an entry clearance, will not be required to meet this requirement again.
Applicants will not have to undertake their study at any particular institution as long they meet the requisite minimum level and a range of qualifications will be accepted to meet this requirement.
Changes across all Tiers
The statement has also introduced changes relating to the rules governing the documents submitted in support of applications. Electronic bank statements will now be allowed for all bank accounts and the requirement to stamp and sign original payslips which are not on headed paper is being removed.
There are changes being introduced to the business visitor category which aim to clarify certain permitted activities. Visitors will now be allowed to undertake short internal audits for global corporations, without the need to go through the Tier 2 ICT route as long it is carried out during one visit. There is also an expansion on what type of training the business visitors are allowed to undertake, to include corporate training, as long certain conditions are met.
The provision to allow general visitors to undertake short courses is also being introduced. Provided the training is not the main purpose of their visit, visitors are allowed to attend up to 30 days of recreational or holiday-type course.
Furthermore, the changes introduce restricted and specific business visit visa concessions for those participating in the 2014 Commonwealth Games.