Important changes to Immigration Rules mean that Tier 1 (General) migrants will be barred from applying for Indefinite Leave to Remain (“ILR”) after 5 April 2018.
This will be of significant concern to individuals who hold this status but who are required to travel frequently outside the UK. If a Tier 1 (General) migrant who is working towards ILR has already spent in excess of 180 days outside the UK in one of the relevant years, they are likely to find that their application for ILR is refused due to excessive absences. There is of course no time to build up a new period of five years continuous leave to remain that does meet the absence requirements.
In addition, individuals who currently have status under Tier 1 (General) will be unable to extend their leave after 5 April 2015.
Whilst Tier 1 (General) migrants should be able to continue to remain in the UK until their current leave expires providing they continue to comply with their conditions of stay, we would recommend that anyone who knows that they will not meet the requirements for ILR considers switching into another immigration category sooner rather than later. The most popular categories will be Tier 1 (Entrepreneur) for self-employed migrants and Tier 2 (General) for employed migrants.
Options
Unfortunately it can be difficult to secure leave to remain under Tier 1 (Entrepreneur) and Tier 2 (General).
Under Tier 1 (Entrepreneur) applicants must demonstrate that they have £200,000 to invest in a business (either their own funds or third party funds) and a genuine business plan. Time spent under Tier 1 (General) cannot count towards ILR.
Under Tier 2 (General) applicants must be employed by a business that has or can successfully obtain a Tier 2 sponsor licence and the Home Office has recently tightened up the requirements in that regard. If the employer has a sponsor licence then a resident labour market test must be performed and the Home Office has the power to scrutinise responses received to test if there were any suitable resident workers. A sponsor that has offered a job to a person who needs to be sponsored rather than to a suitable resident worker can have their sponsor licence revoked.
There are also strict rules concerning the skill of the role and the salary level but Tier 1 (General) leave can at least be combined with leave under Tier 2 (General).
These changes are extremely unfortunate for the many thousands of professional individuals who were approved to enter the UK under Tier 1 (General) as part of the drive at the time to attract the brightest and best workers from around the world.
We currently have a 100% success record both in relation to applications for sponsor licences leading to Tier 2 leave and applications under Tier 1 (Entrepreneur). If you require detailed advice on these new rules and the various options, please do contact us.
