From 6 April 2015, the Home Office will introduce the following changes to Tiers 1 & 2 of the points based system.
• Tier 1 Investor migrants will be obliged to open a UK bank account with a UK regulated financial institution prior to submission of their initial application. The purpose is to enable UK banks to undertake money laundering checks on the applicant prior to entry clearance being granted. This will ensure that UK banks comply with existing UK money laundering regulations and avoid further controversies such as the HSBC Swiss scandal , but will also assist the government in ensuring that the Tier 1 Investor category does not become a route for foreign criminals to harbour their funds in the UK
• Tier 1 General migrants will be unable to switch into the Tier 1 Entrepreneur route unless their business was established prior to 6 April 2015 and they have the required funding in place. This further limits the options available to Tier 1 General migrants for extending their stay in the UK as the category will close for extension applications this month.
• The Tier 1 ‘Genuine Entrepreneur test’ will be extended from the initial applications (as implemented last year), to both extension and indefinite leave to remain (ILR) applications. With the aim of preventing ‘abusive’ applications, applicants must demonstrate that they are genuinely engaged in the operation of a business in the UK. By its nature, the test is subjective and will allow Home Office caseworkers the ability to reject applications where they believe the applicant’s business is not genuine enterprise. In our view, this will lead to greater scrutiny of businesses that are struggling or where there are pooled investments from a number of Tier 1 Entrepreneurs. Those targeted are likely to face enhanced background checks, requests for additional documents and interview by the Home Office. Rejected applicants could be refused extensions or ILR notwithstanding investment of their funds. The Home Office guidance on the credibility criteria and what is expected of a Tier 1 Entrepreneur’s business is virtually nonexistent. This change is likely to be controversial and we expect the Home Office to be challenged on this in the future.
• The annual immigration cap under the Tier 2 General Points Based Scheme for the year commencing 6 April 2015 to 5 April 2015 will remain at 20,700 places; it will continue to be allocated on a monthly basis through the restricted Certificate of Sponsorship process. With the economy now in recovery and employers encountering problems with recruiting skilled personnel, it is likely that demand for Certificates of Sponsorship (COS) will increase and therefore potentially, make it more difficult for employers to recruit non-EEA nationals subject to the cap.
• The Codes of Practice (CoP) which list the types of job considered to meet the skills threshold for Tier 2 will be updated on 6 April 2015. Employers should check to ensure that jobs offered to non-EEA nationals who are subject to immigration control meet the criteria stated in the CoP. The most notable changes are increases in the minimum salary thresholds.
• The Shortage Occupation List has been amended to include paramedics and overhead line workers, whilst special neonatal nurses have been removed.
• The 12 month cooling off period for Tier 2 visas issued for 3 months or less is to be removed. This will enable firms to recruit staff, such as interns, on a permanent basis where they have spent no more than 3 months working in the UK under Tier 2.
It should be borne in mind that all immigration rules changes are subject to review. This may be particularly pertinent given the impending May 2015 election. However, in our professional opinion, there is unlikely to be any significant change to these provisions post-election.
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