The Government has announced a comprehensive set of changes to the Immigration Rules. There are changes to almost every immigration category. The changes are so extensive that their full scope is beyond one article. What follows is intended as a summary of the major changes. RLegal will provide in-depth analysis of the changes as they relate to each immigration category in subsequent articles.
Tier 1 Investor
Following the recommendations of the Migration Advisory Committee (see earlier news here), the minimum investment threshold will be raised from £1 million to £2 million on 6 November 2014.
Tier 1 Investors will now be required to invest the full £2 million funds rather than 75% as under the existing scheme. However, the requirement to top-up any shortfalls in the level of investment resulting from market fluctuations is to be removed.
Reliance on loaned funds will no longer be possible and the Home Office has reiterated that it must be satisfied that the funds were lawfully obtained and are under the control of the applicant.
Accelerated routes to settlement will remain for those investing £5 million and £10 million.
Transitional arrangements will be put in place so that existing Tier 1 Investor Migrants will remain subject to the requirements of the old scheme when applying for an extension of stay or indefinite leave to remain.
Tier 1 Entrepreneur
The Government continues to tinker with the Tier 1 Entrepreneur visa requirements to try to reduce the abuse of this category seen in recent years.
From 6 November, in-country applicants, i.e. those already in the UK applying to switch visa status into Tier 1 Entrepreneur, must hold their £200,000 investment funds in a UK regulated financial institution in order that they can be verified as genuine, overseas funds will be excluded.
Changes are also being made requiring applicants for indefinite leave to remain under the accelerated procedure to demonstrate that they have invested their funds in the business.
Clarification is given to the restriction on engaging in property and/or property management so that investment in any residential accommodation, property development or property management is prohibited. "Property development or management" in this context means any development of property owned by the applicant or his business aimed at increasing the value of the property or with a view to earning rent, management fees or a return on resale.
Tier 2 General and Tier 2 Intra Company Transfer Sponsored Skilled Workers
The main change to both the Tier 2 General and Tier 2 Intra Company Transfer categories is the introduction of a "genuine vacancy" test. Entry Clearance Officers and UK Visa and Immigration ("UKVI") caseworkers can refuse Tier 2 visa applications where there are "reasonable grounds to believe that the job does not genuinely exist, has been exaggerated to meet the Tier 2 skills threshold, has been tailored to exclude resident workers, or the applicant is not qualified to do the job."
The prohibition on agency employment has been reinforced and is now contained within the Immigration Rules.
Spouses, Civil Partners and other Family Members
Savings funds must presently be held in a cash savings account for 6 months before they can be included as evidence of meeting the financial requirements of the partner rules. Changes have been made to allow savings funds to be transferred from investment accounts into cash savings accounts within the 6 month period.
A sponsor or applicant in the UK can now also include income from employment or self-employment work undertaken overseas.
Partners who passed an A1 level English language test which no longer appears on the approved list must now obtain a fresh qualification before applying for an extension or indefinite leave to remain.
Withdrawal of rights of appeal for Tier 4 Student visa applicants
The swingeing changes to appeal rights, which will ultimately be introduced across the board, are to take effect from Monday, 20th October. Any Tier 4 Student visa application lodged after this date which is refused will no longer benefit from a right of appeal. In its place will stand a right of administrative review which will be undertaken by a different caseworker within UKVI. The aim is to reduce the amount of time failed applicants can stay in the UK, the Home Office view being that applicants appeal to buy more time in the UK rather than out of necessity to have an unlawful decision corrected.
The commencement of the administrative review procedure came without the customary 14 days notice that normally precedes changes to the Immigration Rules. The justification offered by the Home Office is that it feared a surge of applications prior to the new regime coming in to effect.
The time limit and procedure to request an administrative review is broadly the same as for lodging an appeal to the First Tier Tribunal (Immigration and Asylum Chamber). The Home Office hopes to issue review decisions within 28 days, although this is likely to be a difficult standard to maintain.
As commented in previous news articles, the removal of rights of appeal in visit visa applications saw the number of refusals increase dramatically. Once a decision maker is free from independent and impartial scrutiny there is, on paper at the very least, little redress against poorly reasoned and unlawful decisions.
No right of appeal or administrative review against deportation
Foreign criminals and their family members will no longer be entitled to appeal against a decision to deport, nor will there be a right of administrative review. However, they may make an application for leave to remain based on a protection or human rights claim which would attract a right of appeal if refused.
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