Pledge to Increase earnings threshold for spouse visa: Conservative manifesto - 18-May-2017
One of the manifesto that Theresa May launched is to increase the earnings threshold for people wishing to sponsor migrants for family visas for those coming from outside the EU.
Conservatives, if elected on 8th June 2017, would hike the minimum income requirement already attacked as “particularly harsh” by Supreme Court justices in Feb 2017.
The current income threshold to bring in spouses is £18,600 which was introduced by Theresa May as Home Secretary. This rule has been blamed for inflicting a harsh choice of separation or living in exile on British families.
The manifesto reads: “We will increase the earnings thresholds for people wishing to sponsor migrants for family visas.” But it does not set out a new minimum amount.
Labour has said it would scrap the threshold, stating it does not believe that “family life should be protected only for the wealthy”.
Among other immigration manifestos, companies employing migrant workers would see the Immigration Skills Charge doubled to £2,000-a-year by the end of the parliament.
Overseas students would remain in the immigration statistics and within scope of the Government’s policy to reduce annual net migration. The students are expected to leave the country at the end of their course, unless they meet a new higher requirement that allow them to work in Britain after their studies have concluded.
European Court to decide curtailment of the rights of British dual nationals - 16-May-2017
The European court of Justice will decide a case that could affect all EU citizens applying for British passports. The court will consider whether the UK government has breached the family rights of a dual British-Spanish citizen seeking to have her Algerian husband live with her in the UK.
The case was brought following a decision by the UK Home Office to refuse a dual British-Spanish citizen the right to have her husband, an Algerian citizen, lives with her in the UK. The Spanish national had come to the UK exercising her rights under the European treaty on freedom of movement. She acquired permanent residence and then British citizenship. However, she also retained her Spanish citizenship, which she believed enabled her to have her husband, Toufik Lounes, join her.
Her husband applied for a residence card as a partner of an EU national exercising treaty rights in the UK. The Home Office refused his application on the grounds that she could not rely on her EU freedom of movement rights, which include the right to bring in a family member, as she was a British national as well as an EU national.
She took the Home Office to court, but in March 2016 the High court referred this case to the European court of Justice to decide whether the UK Government decision was lawful.
Parminder Saini, an immigration barrister and counsel for Lounes, said the case would be a “milestone in the interplay between EU law and European case law on free movement and the UK’s domestic interpretation of that law”.
He said it would have wider implications for every EU state as it concerns the ability of any EU member state to curtail freedom of movement rights under their domestic law.
“If the UK’s interpretation of the law is correct, it shall mean that all EU nationals living in the UK, who have also acquired dual British nationality, will no longer be able to rely on their free movement rights after gaining British nationality, as they will no longer be recognised by the UK as EU citizens in that context,” said Saini.
The preliminary opinion of the advocate general of the European court is due on 30 May and a judgment to be published in the summer.
Introduction of Criminal record certificate - 06-Apr-2017
From 6th April 2017, UK Home Office introduced a requirement of providing a ‘criminal record certificate’ for entry clearance applications for applicants applying as a Tier 2 (General) migrant coming to work in the health, education and social care sectors; as a Tier 1 (Entrepreneur) migrant and as a Tier 1 (Investor) migrant.
This certificate will confirm an individual’s criminal record is usually issued by the police or by an appropriate law enforcement agency. A certificate will include information about an individual’s criminal record, including any past offences, and information relating to recent arrests which are pending further action such as prosecution. The certificate will also confirm that the individual does not have a criminal record.
Tier 2 (General) entry clearance applicants who are subject to the criminal record certificate requirement are determined by the standard occupational classification (SOC) code attributed to their employment role in the UK. This will provide additional safeguards where a migrant’s job involves working closely with children and vulnerable people.
This requirement also extends to the entry clearance application as a spouse, civil partner, unmarried or same sex partner of a Tier 1 (Entrepreneur), Tier 2 (Investor) and Tier 2 (General) migrant working in health, education and social care sectors.
Certificates should be from the applicant's most recent country of residence and should be issued within the last 6-month period prior to the application submission. Certificates from countries prior to applicants most recent country of residence must normally cover the entire period they were resident there (up to ten years or less if the applicant is aged 18 to 27 prior to the application date) but will otherwise be considered valid indefinitely.
A criminal record certificate is required for each country except for the UK.
Changes to the UK Immigration Rules Announced - 20-Mar-2017
On 16th March 2017, the UK Government announced statement of changes to the UK Immigration Rules. The major changes that have been announced are the following: -
Changes relating to applications and validity
- Paragraph 34(9)(a)(ii) of Part 1 has been changed to clarify that an applicant must make an appointment as part of the application process within 45 business days, rather than 45 calendar days. This gives an applicant a longer period of time to make an appointment;
- A new paragraph 34BB is being added to provide that an applicant can only have one outstanding application for leave to remain at a time, and that any subsequent application for leave, submitted when an applicant already has an outstanding previous application which has not yet been decided, will be treated as a variation of the previous application. If an applicant submits more than one application on the same date, all the applications will be invalid unless the Secretary of State writes to the applicant asking them to withdraw one or more of the applications and the applicant responds in the specified time confirming which application(s) they will withdraw.
Changes relating to Tier 1 of the Points-Based System
Tier 1 (Entrepreneur)
Tier 1 (entrepreneur) technical changes to drafting and certain evidential requirements, including an amended definition of ‘invested funds’ and changes in the evidential requirements for applicants who have invested in a LLP, to the specified evidence on job creation and to the specified evidence to demonstrate settled status of employees to confirm jobs created for settled workers.
Tier 1 (General)
The Tier 1 (General) category was closed to new applicants in April 2011 and for extension applications in April 2015, but remains open for indefinite leave to remain applications. A minor change is being made to the time allowed for applicants to respond to requests for further information (from 28 working days to 28 calendar days), to correct a drafting error and for consistency with other categories.
Changes relating to Tier 2 of the Points-Based System
Tier 2 (General)
The following changes are being made:-
- The salary threshold for experienced workers is being increased to £30,000 for the majority of new applicants. The salary threshold for new entrants remains at £20,800;
- The changes laid in November 2016 (HC 667) exempted nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin from the new salary threshold until July 2019. This exemption continues, and a further change is being made to award these occupations extra points when allocating places in the Tier 2 (General) limit, to bring them into parity with occupations paying higher salaries. The additional points only apply where such jobs are not already prioritised due to being included on the Shortage Occupation List;
- Exemption from Resident Labour Market Test and restricted Certificate of Sponsorship requirement for relocation of high value business or new inward investment project where sponsor is newly-registered (within last 3 years) branch or subsidiary of an overseas business and involves capital expenditure of £27million or 21 new UK jobs;
- Changes are being made to the Shortage Occupation List following a separate review by the MAC on teaching shortages, published on 26 January 2017. Secondary school teachers in mathematics and physics are being retained on the list. Secondary school teachers in chemistry are being removed from the list. Secondary school teachers in combined science (where there is an element of physics teaching), computer science and Mandarin are being added to the list;
- Annual updates to salary thresholds for high earners and ILR applications based on average weekly earnings data;
- Tier 4 Students must have satisfied certain study requirements during their continuous stay in the UK to switch into Tier 2 (General) in the UK. A change is being made to also allow Tier 4 Students who have spent time in the Isle of Man, the Bailiwick of Guernsey or the Bailiwick of Jersey in an eligible category since meeting those study requirements to switch into Tier 2 (General) in the UK.
Tier 2 (Intra-Company Transfer (ICT))
As with Tier 2 (General), a number of changes are being made in response to the review of Tier 2 by the MAC, and have been previously announced. The changes include:
- The Short-Term Staff sub-category is being closed;
- The salary threshold for senior transferees who are able to extend their total stay in the category to up to nine years is being reduced, from £155,300 to £120,000;
- The requirement for transferees to have at least one year’s experience working for the sponsor’s linked entity overseas is being removed for applicants paid £73,900 or above.
Tier 2 (General) and Tier 2 (ICT)
The following changes are being made to both the Tier 2 (General) and the Tier 2 (ICT) categories in response to the review by the MAC:
- Changes are being made relating to the introduction of the Immigration Skills Charge, to enable a Certificate of Sponsorship to be considered invalid (and therefore for an application to be refused) if any charge which applies is not paid in full;
- Changes are being made following the MAC’s recommendation that the use of allowances in Tier 2 be reviewed. Changes are being made to provide greater clarity and consistency as to which types of allowance will be considered against the salary requirements. In addition, the closure of the ICT Short Term Staff sub-category means that accommodation allowances can form a maximum of 30% (rather than 40%) of the total salary package for all ICT workers (except Graduate Trainees).
Changes relating to Tier 4 of the Points-Based System
The following changes are being made in Tier 4:
- Tier 4 students who have work rights are limited in the number of hours they may work per week. An amendment is being made to set out a definition of a week, in order to ensure clarity for students, employers and sponsors;
- Under Tier 4 (General), if the course is below degree level, the grant of entry clearance or leave must not lead to the applicant having been granted more than 2 years in the UK as a Tier 4 migrant since the age of 18 to study courses that did not consist of degree level study. An amendment is being made to extend the time limit to 3 years for courses which are below degree level, but which are subject to a regulatory requirement by the Maritime and Coastguard agency that the applicant must spend at least 12 months at sea;
- Under Tier 4 (General), all applicants aged 16 and over are required to satisfy the Secretary of State that they are a genuine student. To ensure consistency between the routes, an amendment is being made to Tier 4 (Child) to apply the Genuine Student Rule to those applicants who are aged 16 and over;
- Under Tier 4 (General), loan funds for maintenance purposes must be made available to the applicant before they travel to the UK. An amendment is being made to allow loan funds to be paid directly to the educational institution in the UK with the living costs portion of the loan released to the applicant before or on arrival in the UK. This change is being made because loans paid directly to educational institutions are deemed to provide sufficient security and evidence that the student has the requisite means to support themselves while studying in the UK;
- An amendment is being made to clarify that where an applicant is applying for leave to undertake an intercalated bachelor’s or master’s degree course or PhD where they are studying medicine, veterinary medicine and science, or dentistry as their principal course of study, or to complete their principal course, having completed a period of intercalation, they are exempt from the requirement to show academic progression.
Changes relating to Grounds for refusal
The period of overstaying permitted before a re-entry ban is imposed is reduced from 90 days to 30 days. No re-entry ban is imposed where a person leaves the UK voluntarily at their own expense and overstaying began before 06 April 2017 and was for 90 days or less, or where the overstaying began on or after 06 April 2017 and was for 30 days or less.
Certain periods of overstaying are disregarded in the calculation of the time:
- Overstaying of up to 28 days where, prior to 24 November 2016, an application for leave was made during that time and any following period pending the determination of that application, any related appeal or administrative review;
- Overstaying to which para 39E on out of time applications on or after 24 November 2016 applied and any following period pending the determination of any related appeal or administrative review;
- Overstaying arising from a decision of the Secretary of State which is subsequently withdrawn, quashed or which a court or tribunal has required her to reconsider, unless the challenge was brought more than 3 months from the date of the decision.
Post-Brexit 5-year work UK visas planned - 28-Feb-2017
The British government is considering a five-year post-Brexit visa scheme that would allow more foreign employees – including those in the tech sector – to work in the UK.
Ministers are reportedly considering plans to limit benefits for new immigrants and give multi-year visas for migrant workers in key sectors as part of an effort to bring the migration down to the tens of thousands.
A time-limited visa would only be granted to those arriving in the UK with a job, it would seem along the lines of the working visas currently issued to non-EU nationals
Migration Advisory Committee (MAC) would be advising the Government on how many visas, according to The Sunday Times. The MAC would decide how many visas need to be issued for workers in key industries such as software engineering, health and social care, farming and hospitality, which are heavily reliant on immigrants.
According to The Sunday Times, a minister said: “The simplest way is to have five-year visas. You’re welcome to come if you have a job where we need you, but you don’t get benefits and then you leave.”
Home secretary Amber Rudd, meanwhile, confirmed free movement of labour – one of the core principles of the EU – would come to an end under Brexit.
According to the newspaper, Mrs May will also attempt to guarantee the rights of all EU nationals who are resident in the UK on the day she triggers Article 50 to begin exit negotiations, if she can get a similar agreement for British expats in Europe.
A Government spokesman said: "We said we would use the opportunity of leaving the European Union to take control of our immigration system and we will do exactly that. Our plans will be published in due course but this is just speculation."
UK Supreme Court upholds minimum income requirement for the spouse visa - 22-Feb-2017
The Government's "minimum income" immigration requirement does not breach human rights legislation, the Supreme Court has ruled.
Since the new rules were introduced in July 2012, the UK partner -- a British citizen or settled person -- must have a minimum annual income of at least £18,600 for their spouse to live with them, if the spouse comes from outside the European Economic Area.
Previous rules only required the couple to show that they could support themselves without the need of state help in the form of public funds.
Four couples challenged the rules on the grounds that they breached their human right to a family life.
Handing down their ruling, the Supreme Court justices upheld the "Minimum Income Requirement" rules, saying they did not violate human rights legislation.
The Supreme Court said the minimum income requirement had caused significant hardship to many, but ruled that in principle it was not inconsistent with the European Convention on Human Rights.
"The fact that a rule causes hardship to many, including some who are in no way to blame for the situation in which they now find themselves, does not mean that it is incompatible with the Convention rights or otherwise unlawful at common law," the court said.
The court said the current rules did not adequately account for the protection of children or the possibility that alternative sources of funding be allowed other than the income of the Briton.
"These are significant victories for families up and down the country," said Saira Grant, Chief Executive of the Joint Council for the Welfare of Immigrants.
"This judgment confirms that the government's position is now untenable and they must now take immediate steps to protect the welfare of children in accordance with their legal duty."
A Home Office spokesman said the court had endorsed the government's approach, but it was "carefully considering what the court has said in relation to exceptional cases where the income threshold has not been met, particularly where the case involves a child."
Changes to the UK Immigration rules for the year 2017 - 03-Jan-2017
Last year, the UK Government announced number of changes to the UK Immigration Rules which are due to come into effect this year. The major changes that have been announced are the following: -
Changes to the Tier 2 (General)
The following changes are to be implemented under this category from April 2017: -
- The minimum salary threshold for Tier 2 (General) migrant will increase to £30,000;
- A change to the rules around advertising via a milkround will be introduced to close a loophole in which a sponsor can offer a job to a migrant 4 years after carrying out a milkround, without the need for a further recruitment search. Sponsors can continue to rely on a milkround which ended up to 4 years prior to assigning a Certificate of Sponsorship, but only providing the migrant was offered the job within 6 months of that milkround taking place;
- There will be extra weighting within the Tier 2 (General) limit where the allocation of places is associated with the relocation of a high-value business to the UK or, potentially, supports an inward investment. The resident labour market test will also be waived for these applications.
Changes to the Tier 2 (Intra-Company Transfer (ICT))
From April 2017, the following are the changes that will be implemented to the Tier 2 (ICT): -
- All Intra-Company Transferees will be required to qualify under single, streamlined visa category with a minimum salary threshold of £41,500 with the exception of Graduate Trainee category;
- Applicants under this category will be permitted to remain in the UK for up to nine years if earning £120,000 (the current level is £155,300);
- Tier 2 Intra-Company Transferees paid over £73,900 will not need one year’s experience working for a group company overseas.
New English Language Requirement for family route applications
From 1 May 2017, the English Language requirement for non-EEA partners and parents will be changed to Level A2 of the Common European Framework of References for Languages. This change was announced in November 2016, in order to provide applicants with the time to improve their English language ability to this higher English language requirement.
The new English language requirement will affect all applicants who will be applying to extend their stay after 2.5 years in the UK on the 5-year route to settlement. It will apply to all partners and parents whose current leave under the UK Family Migration rules is due to expire on or after 1 May 2017.
Introduction of the Immigration Skills Charge
From April 2017, the charge will be levied on Tier 2 employers at a rate of £1,000 per certificate of sponsorship per year. (A reduced rate of £364 will apply to small and charitable sponsors, as defined by the Immigration and Nationality (Fees) Regulations.) The Intra-Company Transfer Graduate Trainee category and those switching from a Tier 4 student visa to a Tier 2 visa will be exempt, as will PhD level occupations.
Changes affecting Medical and Teaching Professionals
From 6 April 2017, the sponsor will need to ensure that those employees applying to work in the UK under particular SOC codes have checked whether they are subject to a new requirement to produce a criminal record certificate as stipulated under Paragraph 320(2A) of the Immigration Rules. This applies to individuals who are aged 18 and above and are applying from any country in which they have been residing for 12 months or over, consequently or cumulatively in the past 10 years. At present, the affected SOC codes are predominantly within medical and teaching professions.