Table of Contents
UK Immigration Update – April 2022
- The new UK immigration rules were passed into law on 15th March 2022. Most of them came into force on 6th April 2022, coinciding with the date of the recent no-fault divorce. Other parts of the rules took effect on 11th April 2022, and the rest will come into force in June 2022.
- The new rules continue with the trend of compartmentalizing them into their own appendix, for example, ‘ appendix private life’ where all the rules as to private life can be found, as opposed to previously where one had to look in several sections of the rules to find details as to a specific private life issue.
- There is a lack of foresight as the main commercial immigration changes don’t lead to ILR. On the one hand, the government has indicated they want la crème de la crème to come to the UK and benefit the UK economy, and yet, on the other hand, they are now giving temporary status to many commercial visa applicants who can only stay in the UK and work for an interim period thus defeating the object of the exercise in the first place.
- There is a failure to address the rights, interests and needs of the people at the core of the immigration system.
- No recognition or respect has been given for the vital contribution made to the economy by the many people who come to the UK without the privilege of wealth and higher education.
- The drafted rules show less understanding of the basic human rights that are affected by the immigration system.
What Business Categories Do Not Lead to ILR?
Global Business Mobility [GBM] replaces various previous schemes which don’t lead to ILR.
The Graduate Trainee route.
This replaces the intra- company graduate trainee visa. It allows overseas employers to transfer overseas workers for work placement in the UK as part of a graduate training course that will lead to senior management or specialist roles when they return.
It is almost the same as the intra-company graduate trainee. However, supplementary employment will not be permitted. Applicants can bring their dependents with them.
The senior or specialist worker route
This replaced the intra- company transfer ( ICT) visa, which closed on 11th April 2022. It relates to senior managers and specialist employees, and again the requirements are largely the same as the ICT visa. The minimum salary is increased from £41,500 to £42.400 per annum.
The service supplier route
This route is for overseas workers who work for a service supplier abroad or are self-employed independent professionals based overseas who need to undertake a temporary assignment in the UK to provide services covered by one of the UK’s international trade commitments.
The UK expansion worker route
This route replaced the sole representative route that closed at 9 am on 11th April 2022 and which route did lead to ILR. The overseas business can’t be traded before the representative comes to the UK and must be set up because there is a need to transact business in the UK with the mother company rather than to recruit the overseas worker.
The representation office in the UK requires a sponsorship license that the mother company can obtain. It is considered that the home office will give a provisional rating as it would not be trading without employees in the UK.
As opposed to only one worker, a team of workers is allowed under the route, and there is no English language requirement. The workers being transferred must have worked for the mother company for at least 12 months.
The secondment worker route
This route is for high-value investments by foreign companies that bring in workers to the UK. The Migration Advisory Committee ( MAC) says the contract value should be worth over £50 million. The UK sponsor registers the high-value contract with the Home Office.
Furthermore, the workers must have worked abroad for a minimum of 12 months, and the skills level should be at A leave or above or equivalent. There is no minimum salary, but the certificate of sponsorship ( COS) must confirm the worker will be paid at least the minimum wage. It is a one year visa and can be extended for a further year,
Commercial Routes Leading to ILR
- The scale-up route
- The innovator route— changes to extension requirements
- The global talent– changes to endorsements and documentary requirements
Appendix High Potential Individual Route: Effective from 30th May 2022.
The High Potential Individual Route Visa is for graduates of top global universities who want to come and work in the UK, following the completion of an equivalent to a UK BA degree or above. The studies must be with an institution listed on the Global Universities list. It is comparable to the previous HSMP.
- No job offer is required.
- No sponsorship is required.
- English language at B1, in speaking, reading, and writing.
- Bank statements should show you have at least £1270 in your account held for at least 28 days prior to the date of the application.
- Partners and children can be sponsored.
- Work [ including self-employment and voluntary work] is permitted, apart from as a professional sportsperson , including a sports coach).
- The study is permitted, but not with a student sponsor
- If the qualification is a degree at the PhD level, the applicant will be granted three years of permission and two years in all other cases.
Appendix Scale Up: effective from 22nd August 2022.
This is a new route for those with a job offer at the required skills level from a recognised UK scale-up company to qualify for a fast track visa to enable the scale-up business to continue growing. ‘Scale up’:- distinct phase for company growth. It’s a company that has achieved a lot, had some impressive success and is ready to take it to the next level.
An authorised scale-up company must make an offer to an applicant to sponsor this route.
The scale-up company seeking to become authorized by the Home Office will need to demonstrate that; they have an annualised growth of at least 20% for the previous three-year period in terms of turnover or staffing;
They have maintained a minimum of 10 employees at the start of the three years.
It is understood that the government may introduce further ways in which scale-up companies may be able to register for this route.
The job offer must be skilled to graduate-level [ RFQ-six and equivalent].
The job offer must be for a role paid at an appropriate salary– at least £33,000 per annum or the going rate for the particular occupation, whichever is the higher.
English language abilities required at B1 level in speaking, listening, reading, and writing.
Partners and children can be sponsored as dependents.
A maintenance requirement of £1270 applies for anybody applying for entry clearance or permission to stay where they have lived in the UK for less than 12 months. Therefore, funds must be held for a period of 28 days before the date of the application.
Permission will be granted for two years-to extend this; applicants must have PAYE earnings of at least £33,000 per annum for at least 50% of their time in the route, for which they will be granted a further three years of leave.
The role must be full-time, and the applicant must continue to work in the sponsored role for the first six months– after that, their immigration status will no longer be tied to the employer, and
To qualify for this, the applicant will need to have PAYE earnings of at least £33,000 in 24 months of the three years immediately before the application, as well as the standard settlement requirements relating to 5 years of continuous residence and demonstrating knowledge of life in the UK.
The Innovator Route (changes to extension requirements): effective from 6 April 2022
Changes are being brought in to allow innovator visa holders to be granted further permission to stay by the SSHD if they do not qualify for settlement rather than just be refused as is the current position.
The applicant must still meet the suitability and eligibility requirements for leave to remain as an innovator.
Where further leave to remain is granted, there will be no additional application fee, and the settlement application fee will not be refunded.
If applicable, the SSHD will write to the applicant informing them of this variation and, if required, will request the applicant pay the required immigration health surcharge. This route leads to settlement.
Global Talent (changes to endorsements and documentary requirements): effect from 6 April 2022.
The global talent route is for talented and promising individuals wishing to work in the UK in the field of science, digital technology, and arts and culture. The talented applicants are already leaders in their respective fields, whilst promised applicants have shown the potential to become leaders in their area.
Changes are being made to the criteria for endorsement and to the documentation required.
Furthermore, the evidential requirements for digital technology endorsements are being amended to include a requirement that exceptional promise applicants must be at an early stage in their career to mirror a similar requirement for applicants in science, medicine and humanities. This is to clarify that applicants at later stages of their careers should apply under the exceptional talent endorsement criteria;
Evidence of exceptional talent or promise should cover achievements in the five years directly prior to the date of application. This mirrors similar 15 endorsement requirements in other sectors and is intended to clarify that applicants should have recent experience and achievements that support their claim of exceptional talent or promise.
Clarification of the details required within the letters of support from organisations within the digital technology field for applicants applying for a full peer review endorsement. This is to ensure that the letters of support provide sufficient information to allow the tech nation to consider the applicant’s claim of exceptional talent or promise to amend the evidential requirements for science, humanities, engineering and medicine endorsements for clarity, including reinserting the word eligible when discussing roles which qualify under the appointments fast track route; and updates the list of prizes in appendix global talent
Appendix Private Life: effective from 20 June 2022
Summary; – Paragraph 276 ADE(i) of the immigration rules which governs permission to stay on private life grounds is going to be replaced by a new appendix private life.
The new appendix on private life will retain grounds on which permission can be granted to an individual based on private life. These are:
- To a child resident in the UK for at least seven years who cannot reasonably be expected to leave the UK, previously referred to as the seven-year children’s concession, which will now be paragraph 3.1 in the appendix.
- Young adults aged between 18 to 24 years and residents in the UK for at least half of their life and which will be paragraph 4.1 in the appendix.
- To someone resident in the UK for 20 years plus, which will now be paragraph 5.1(a) in the appendix; and
- to someone who will face very significant obstacles to integration in their country of return if returned by the Home Office, which will now be paragraph 5.1(b) in the appendix.
Until now, successful applicants on private life grounds had been granted permission to stay in the UK for 30 months, following which they had to reapply if they wished to extend their stay.
The newly formed appendix private life will allow young adults and children to choose whether to apply for leave to remain in the UK for a period of 30 months or 60 months. There are no additional requirements for the latter, and the only difference between the two appears to be the application fee.
There will also be changes in the qualifying period for indefinite leave to remain applications under this category. Previously applicants had to complete 10 years on the private life route before they could apply for ILR. Appendix private life will change that as follows:
- A child who was born in the UK will be able to apply for ILR immediately after spending the first seven years of their life here, even if they have never previously held any valid leave to remain. This avoids the need for children in this situation to apply for extensions repeatedly and to face greater uncertainty about their future. They must still show that it will not be reasonable to expect them to leave the UK. Such a child may be eligible for citizenship at 10 years of age, so the change will support their journey to citizenship.
- A child born in the UK who has been continuously resident here for less than seven years may be added as a dependent to a person on the private life route in certain circumstances, making it clearer how these children are able to regularise their immigration status
- where a dependent child born in the UK is being granted permission, and both parents have permission in the UK unless the parent on the private life route has sole responsibility, the other parent is a British citizen/ ordinarily resident, or there are compelling and compassionate circumstances; the child will be granted permission in line with a parent who has shorter leave
- where a dependent child under 18 is applying, suitable care and accommodation arrangements must be in place which complies with UK laws
- for seven years old children who were not born in the UK, there will be a new accelerated route enabling them to get ILR after five rather than 10 years of leave
- Everyone else on the private life route will still need to complete 10 years of residence in the UK after being granted permission before they can get ILR. However, more positively, applicants will be able to combine time on family and private life roots towards the qualifying period, rather than having to reset the clock on the qualifying period if their circumstances change, though they will need to complete at least one year in the current route. Previously the 10-year continuous leave had to be spent just under the private life route.
- A prison sentence of at least 12 months will prevent a person from ever getting ILR on the private life route; previously, they could do so if 15 years had passed since the end of the sentence. People in this position are presumably expected to continue to make extensions for an infinite period.
- A prison sentence of fewer than 12 months or where someone has been found to be involved in a sham marriage or civil partnership, practised deception or breached conditions, or where they have outstanding litigation or NHS debt, will prevent a person from getting ILR for the first five years after the sentence is completed. The same applies to a child or young adult who will be prevented from obtaining ILR on the accelerated five-year route.
- A new category called child born in the UK to a person on the private life route will be created; and
- Applicants for settlement will be able to rely on GCSE, A-levels or equivalent Scottish higher qualifications in English language literature following education in a UK school to show they meet their language requirements; these changes will be reflected in the appendix English language.
Appendix Settlement Family Life: effective from 20 June 2022
Requirements for ILR for those seeking ILR on the 10-year family route are being placed into two other newly created appendices, appendix family life and appendix relationship with a partner.
- This introduces a new continuous residence requirement for ILR for those who are in the UK as a partner or parent on the 10-year route. Previously, there was no need for applicants to have physically spent a certain amount of time in the UK. Going forward, they will be limited to having a maximum of 180 days of absences in any 12-month period.
- The exceptions to this are for those who need to travel outside of the UK due to work, study, supporting family overseas, a pandemic or due to life-threatening illness. Applicants must show that despite the permitted exception, the UK remains their permanent place of residence and they maintain their family life in the UK. On this note, this appendix will not strictly be applied retrospectively. So, absences predating the new appendix will be disregarded if they were followed by a grant of permission on the private or family life grounds;
- Clarifies that where a person has permission as a parent of a child under 18, they can qualify for settlement even where the child has turned 18
- Confirms dependent children will be able to qualify for settlement where their parent is legitimately accessing public funds
- Confirms an applicant relying on a relationship as a partner must have had permission based on their relationship with their current partner for at least one year; and
- Where a dependent child under 18 is applying, suitable care and accommodation arrangements must be in place which complies with UK laws.
Appendix Relationship with Partner: effective from 20 June 2022
This new appendix replaces the relationship requirement and appendix FM. It is designed to provide greater consistency in the way applicants prove a relationship with a partner.
The partner can be the applicant’s spouse or civil partner or a person in a stable relationship similar to a marriage or a civil partnership of at least two years. The requirements are:
- The partners must have met.
- Both are aged over 18.
- They are not related to the prohibited degrees that prevent marriage or civil partnership.
- Any previous relationships must have broken down with a limited exception of the polygamists and polyamorous marriages.
- The relationship must be genuine and subsist.
This new appendix currently only applies to those seeking ILR on the 10-year partner route. However, the expansion memorandum promisingly expresses an intention to extend it to other routes in future.
So can be seen that throughout the current pandemic, the Home Office has published Covid 19 concessions by way of guidance which can be changed at will. A few of these concessions are formally introduced into the immigration rules providing more security to those affected, including
Tier one Entrepreneur Visa holders who were granted an extension under the concession, the route is now closed to new applicants, and wish to apply for settlement, will need to show they have created four jobs, each lasting 12 months or two jobs each lasting 24 months.
Skilled worker and sportsperson migrants, for applicants who were in another Visa category and applied to switch into one of these between 24 January 2020 and 30 June 2021, it is possible to count the decision-making time toward settlement.
EU Settlement Scheme: the late concession/ guidance relating to excessive absences issued shortly before the deadline of 30 June 2021.
Except in prescribed cases, EEA nationals will no longer be allowed to use their valid national identity card to enter the UK; they will need to use a valid passport.
The launch of the new international sportsperson route replaces existing routes for professional sportspeople and requires endorsement, sponsorship, meeting financial requirements, and meeting the English language requirement.
The Working Holiday Visa or use Mobility Scheme Visa category has been expanded
Since January 2022 to allow citizens of India and Iceland between the ages of 18 to 30 to apply to live and work in the UK for up to 2 years without sponsorship, with additional requirements for Indian citizens including holding an undergraduate degree or having a minimum of three years work experience in a role equivalent to the approved list of jobs
There are also changes with respect to Afghan citizens under the Afghan relocation and assistance policy .
The Home Office has also published the Afghanistan resettlement, an immigration policy statement, and promotional material called next steps in the UK-immigration information for people evacuated from Afghanistan. However, these do not form part of the immigration rules.
The Sole Representative Visa has been Abolished (for new applicants from 11 April 2022)
Applications for extensions and ILR are possible for those who already have such a Visa. The applications will now include a genuineness assessment, i.e. whether this sole rep’s intentions genuinely meet the rules. The Home Office /UKVI will now assess subjectively whether the applicant genuinely meets the rules.
The rules now stipulate that the branch or subsidiary should not be established solely to facilitate the entry and stay of the applicant. The regulations require the applicant to have the relevant skills, experience and knowledge of the business. This will of course be assessed by the Home Office based on the evidence provided.
It is no longer possible for partners of someone with a majority shareholding to apply for a sole representative visa; previously, the rules restricted only to majority shareholders themselves. This change was to be expected and corrects any apparent oversight in the original drafting.
Is this the end of the sole rep as we know it? I think so. The last time the Home Office introduced the subjective genuineness assessment to entrepreneur Visas, we saw UKVI official refusal rates exceed 50% over many years.
Changes to start-up and innovative visas
Since the introduction of the start-up and innovator Visa routes, the approach of the Home Office has always been to leave the business assessment to the endorsing bodies as this is their expertise. The Home Office will only decide on the final application once the endorsement has been secured. This was a welcome change, especially after witnessing how Tier one entrepreneur visas were being subjectively refused over many years.
Sadly, this division of assessment now comes to an end. The Home Office will now have the power to request further information and evidence from both the endorsing body and the applicant in order to consider whether the endorsing requirements were met and potentially refuse the application if the decision-maker believes that the criteria have not been met. This change, in a way, defeats the purpose of the endorsing bodies as the Home Office will now intrude further into the assessment of the viability of the business and expertise that we know all too well they do not have.
A more welcome development is that the higher education providers can now endorse innovators as well as start-up visas. It looks like the Home Office was concerned about the manner in which the universities would endorse innovator Visa applicants so preemptively, The Home Office gave themselves more power to look into applicants even after the endorsement had been secured.
The Home Office wants to retain the power to subjectively assess applicants and refuse applications that stay which a decision-maker officer considers unworthy.
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