A new Statement of Changes to the Immigration Rules was published on 9 September 2019 which will introduce a number of amendments to the current immigration system.
The majority of the changes set out in HC2631 will come into force in the first week in October. Here we consider some of the key points.
Tier 2
Shortage Occupation List
Earlier this year, the Migration Advisory Committee (MAC) published its recommendations on the shortage occupation list.
On the whole, the Home Office has reacted positively by adding a number of jobs to the list, although some roles have been removed. New additions include medical doctors, veterinarians, architects, psychologists, biological scientists and a range of roles in the IT sector.
The new Statement also removes in its entirety paragraph 4 of the current Appendix K. In the current Rules, this paragraph defines a ‘qualifying company’ that can gain permission to rely on the shortage occupation list for certain digital technology roles. We will need to wait to see exactly what amendments are made to the ‘Tier 2 and 5: guidance for sponsors’ when it is updated in October to align with the changes but this appears to reflect a simplification of the process that companies needing to sponsor digital technology workers need to follow.
There is also welcome news for restaurants. Previously, a high-end restaurant that also offered a delivery service (for example, through an app such as Deliveroo or Just Eat) was not able to sponsor skilled chefs. Offering a delivery service was somehow construed as meaning that the Chef’s role was less skilled. The new rules have removed this restriction.
Shortage occupation list roles benefit from number of advantages, including:
- not being subject to the Resident Labour Market Test
- gaining more points in the monthly RCOS allocation process
- exemptions from the relevant Tier 2 earnings thresholds when the worker applies for Indefinite Leave to Remain.
PhD level workers
An annual cap of 20,700 is applied to Tier 2 work visas for skilled non-EEA migrants. Following the then Chancellor’s 2019 Spring Statement in which he confirmed that the UK welcomes researchers and other highly skilled individuals, PhD level occupations are to be exempt from this limit.
In addition to this, the time that PhD level workers spend outside the UK in order to conduct research directly related to their Tier 2 employment will not be counted as an absence when they come to make an application for Indefinite Leave to Remain.
Remuneration
For those who are absent from work on the basis of statutory parental leave, work, legal strike action or assisting an international humanitarian or environmental crisis, they will not be impeded from obtaining ILR where such absences have led to their salary falling below the required rate.
Some of the salary rates for a small number of occupational codes were not changed when Appendix J was last updated. This is being remedied.
Resident Labour Market Test
For teaching roles, sponsors may now use the ‘Teaching Vacancies’ service on GOV.UK for the purpose advertising the role. Sponsors no will no longer have to use Find a Job, although in general must still advertise on at least two websites.
Sponsoring international students
The Rules have been relaxed to enable certain students who are sponsored under Tier 4 (General) to apply to switch into Tier 2 (General) earlier and commence work for their Tier 2 sponsor earlier. Students and Tier 2 sponsors should note that the student will not be able to continue to work if their application is refused and they no longer have leave that permits them to work.
Tier 4 (General)
Sponsored students undertaking masters’ and PhD level study will be able to commence a different course of study with their current sponsor during their leave, providing all other requirements for commencing such a course are met. At the moment, such students would generally have to leave the UK and make an application from overseas as they would need meet the Rules relating to academic progression.
The Home Office has been struggling with how best to define ‘professional sportsperson’ activities that sponsored students are not permitted to undertake. They updated the Tier 4 Policy Guidance in June 2019, which we covered here, and the new Rules will now confirm that students can play or coach sport as an amateur (as defined in the Immigration Rules) whilst in receipt of a sports scholarship, or if doing so as part of a work placement that is undertaken as an integral and assessed part of their course.
Tier 1 (Investor)
Although UK government bonds are no longer qualifying investments for new entrants, those who entered the UK under Tier 1 (Investor) before 29 March 2019 using these financial products will still be able to make further applications. This is providing they make an application for an extension of stay before 6 April 2023 or for Indefinite Leave to Remain before 6 April 2025 or, if they are unable to make their application by those deadlines, have moved their qualifying investments out of UK government bonds by then.
Those holding Tier 1 (Investor) status who entered the route before 6 November 2014 and who still need to make applications for extensions and/or Indefinite Leave to remain will need to increase their investment to at least £2 million, if it is still at the £1 million level, if applying for an extension before 6 April 2020 or for Indefinite Leave to Remain before 6 April 2022. If they submit an application after this date, only time spent when the investment was at the increased level throughout will qualify for the purposes of an Indefinite Leave to Remain application.
There is a risk therefore that many investors who are in the UK under the pre-November 2014 route and who have been unable to apply for Indefinite Leave to Remain (for example, due to excessive absences) may have to re-start their qualifying period, unless they become aware of this change and make relevant changes.
Tier 1 (Exceptional Talent)
There have been some changes to the endorsement requirements under this route, mainly under the Tech Nation stream. At Tech Nation’s request, applicants will have to submit three rather than two letters of recommendation from experts and there will be an increasing focus on ‘product-led’ initiatives.
Helpfully the ‘Science Bodies’ stream (The Royal Society, The Royal Academy of Engineering, and The British Academy) have also expanded the types of peer-reviewed fellowships which qualify for an ‘accelerated endorsement’. There are now also more positions open to endorsements, including senior academics, rather than those roles focused purely on research. This expansion and opening up of the stream will hopefully allow more individuals to benefit from this under-utilised route.
Appendix W – Innovator and Start-up
Students switching into the Start-up route who have already been endorsed by an appropriate body and submitted their application can commence their business activities during the processing period, allowing them to start work as soon as possible.
The requirement that ‘start-up’ applicants must not previously have established a UK business is being relaxed for Tier 4 (General) students on the doctorate extension scheme.
Belatedly, there have also been some clarifications about the requirements an organisation must meet to become an endorsing body for either the Innovator of Start-up route. Endorsing bodies can be a higher education provider with ‘a track record of compliance’, a UK government department, or must meet a list of requirements including not having abused the immigration system previously, not having a conflict of interest with the purpose of the Start-up/Innovator category or with any linked external organisation. These bodies must not have any partnership with ‘immigration organisations’ and must not use the endorsing body status ‘to promote immigration services’.
Conclusion
We have focused here on changes that are relevant to businesses, education providers and entrepreneurs/investors. The Statement also included various changes relevant to EEA citizens and their family members and an overview of these can be found on pages 4, 5 and 6 of the Explanatory Memorandum.
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