The Home Office laid its latest Statement of Changes in Immigration Rules just before Christmas, with most of the changes due to take effect from 11 January 2018.
Examining the changes most relevant to our clients, 2018 kicks off with positive news for those seeking to come to the UK under the Tier 1 (Exceptional Talent) route and for Tier 4 students seeking to remain in the UK for work. However, partners of PBS migrants face tougher residency restrictions when applying for Indefinite Leave to Remain (or ‘settlement’). In response to sector feedback, the Tier 1 (Entrepreneur) Rules relating to point scoring ‘Attributes’ are also being rewritten to make them clearer and easier to follow.
Tier 1 (Exceptional Talent)
In a welcome move for exceptionally talented non EEA nationals, the Home Office has doubled the number of places in the Tier 1 (Exceptional Talent) category to 2,000. Designated Competent Bodies, including Arts Council England and Tech City UK, can apply for the additional places when their existing allocation has been exhausted. Applicants endorsed as ‘world leaders’ in this Tier 1 category can also apply for accelerated settlement after only 3 years’ continuous UK residence.
PBS Dependants Seeking to Apply for Settlement
In a more controversial change, the requirement to have had absences from the UK of no more than 180 days per year in order to qualify for indefinite leave to remain, which currently applies to main applicants, is now being extended to partners of Points-Based System Tier 1 and Tier 2 Migrants.
This new absences criteria, intended to remove inconsistencies in the settlement rules, means that partners of migrants on Tier 1 or Tier 2 visas who are eligible and wish to apply for settlement must restrict their absences from the UK to no more than 180 days per year. This could pose particular problems for dependants of Tier 1 Entrepreneurs and Tier 1 Investors who have benefited from previous more relaxed travel restrictions. To ensure that this new residence requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.
Students Switching to Tier 2
In a move welcomed by international students and Tier 4 graduate employers, the new Statement of Changes permits Tier 4 students to switch to Tier 2 work visas as soon as they have completed their courses, rather than having to wait until they have received their final results.
Tier 1 (Entrepreneur)
The job creation rules applicable to Tier 1 Entrepreneurs seeking to extend their visas currently require jobs to have existed for at least 12 months during the applicant’s most recent period of leave. The new Statement of Changes means that applicants can apply even if their current leave was granted less than 12 months ago. In such cases, the two jobs for ‘settled workers’ must have existed for at least 12 months before the date of the current application.
In an amendment designed to emphasise the impact a Tier 1 Entrepreneur’s services and investment has had on the UK business, the required evidence of job creation must now relate to the period before the applicant joined the business, rather than the period before jobs were created.
To prevent recycling of funds between Tier 1 Entrepreneur applicants, a change is being made so that applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. Tier 1 (Entrepreneur) applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
Finally, in a bid to address ongoing abuse relating to venture capital funding, Tier 1 Entrepreneur applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time.
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