Tier 1 General ILR Closes April 2018

The Tier 1 (General) application route closed on 6 April 2015.
You can no longer apply for or extend Tier 1 (General) visas. Family members can still apply to join you in the UK.
You may be able to apply to settle once you’ve been in the UK for 5 years. You can apply to settle as a Tier 1 (General) worker until 6 April 2018.
Tier 1 General ILR closes 6 April 2018: Time is ticking to apply for UK settlement!

Tier 1 General visa holders have until 6 April 2018 to apply for indefinite leave to remain (ILR) in the UK under their existing visa.

While the Tier 1 General visa route is now closed to new applications and extensions, current Tier 1 General visa holders are permitted to apply for ILR where eligible – but this settlement route is being withdrawn after this date.

This means that to apply to settle in the UK as a Tier 1 General visa holder, you must submit your complete ILR application by 5 April 2018 at the latest.

If you are successfully granted ILR, you will be permitted to live and work in the UK without time limitation or immigration restrictions. You may also after a year with ILR become eligible to naturalise as a British citizen.

Tier 1 General ILR: Eligibility Criteria

As a Tier 1 General visa holder, you may be eligible to apply for ILR after five continuous years in the UK.

The five years must have been spent lawfully and you must have been economically active in the UK, under any of the following visa categories:

tier 1 (General) migrant;
tier 2 (General) migrant;
tier 2 (Intra-Company Transfer) migrant granted under the rules in place before 6 April 2010;
highly Skilled Migrant Programme (HSMP) participant; or
work Permit Holder;

and importantly – your most recent visa stay must have been under the Tier 1 General visa.

You must be aged between 18 and 64 and meet the stringent minimum earnings requirement, covering 12 consecutive months of the last 15 months prior to your application.

You will also be required to demonstrate access to sufficient maintenance funds, and to pass the Life in the UK Test and a recognised English language test.

You will need to be free of any unspent convictions to make an ILR application.

The application also requires you to submit biometric information (fingerprints and facial image) and obtain a biometric residence permit to confirm your immigration status and entitlements.

The fee for an ILR application is £1875 for 2017-2018.

In addition to the ILR application form, you will be required to collate and submit supporting documentation, such as personal tax returns.

It will be important to ensure you provide all required documents in the required formats and covering the required time periods. Errors or omissions in documentation can result in delays or even refusal of your application.

Tier 1 General ILR and Dependants

As part of your ILR application, it is possible to include your spouse, partner and children under 18 years of age, provided they hold dependant visas – not as separate visa holders. This means for example that if your spouse is a Tier 2 visa holder, they cannot apply within your application.

Non-UK born children can only apply if both parents have or are applying for ILR. UK-born children do not need to apply for ILR. They can be registered as British once both parents have ILR.

Other points to consider

While ILR status is permanent, it may be lost in certain circumstances. For example, if you have lived outside the UK for a continuous period of two years or more, for reasons of national security or if you commit an offence that could lead to you being deported from the UK.

Alternatives to ILR?

If you are a Tier 1 General visa holder there may be alternative options for you to consider if you are not eligible to apply for ILR or do not wish to apply for ILR.

United Kingdom November 23 2017

Government publishes details of administrative processes for EU nationals

European Union, United Kingdom November 7 2017
The UK voted to leave the European Union in the 23 June 2016 EU referendum. The government is now preparing to leave the EU in the best possible way for the UK’s national interest.
It is in the interests of both the UK and the EU to ensure a smooth and orderly withdrawal in regard to the availability of goods in the UK and EU markets.

The Government has published further information on the new administrative processes which will apply to EU nationals in the UK who wish to apply for settled or temporary status post-Brexit. In brief:

The future status and rights of EU nationals will be defined in the Withdrawal Agreement (WA). The WA will be incorporated into UK law, enabling EU citizens to enforce those rights.
A new application system is being designed from scratch. Applications will be for either (1) settled status – 5 years’ continuous lawful residence as a worker, self-employed person, student, self-sufficient person of family member thereof; or (2) temporary status – lawful residence before a specified cut-off date, with settled status available after 5 years’ residence.
The application process will be streamlined, user-friendly and digital, utilising existing government data to minimise the documentary evidence an individual is required to supply. Proof of comprehensive sickness insurance will no longer be required for those who are studying or economically inactive. It will also no longer be necessary to account for every trip taken in and out of the UK.
The cost of the application will not exceed the cost of a British passport.
EU nationals who already have a Permanent Residence certificate will be subject to a simplified process with a reduced fee.
EU nationals will be given sufficient time to make their application post-Brexit – estimated to be 2 years. The Government is also planning to set up a voluntary process which can be used pre-Brexit for individuals who want to establish their new status as early as possible.
There will be an administrative review system to resolve any challenges to status decisions and, after that, recourse to the courts as now.

Full details can be found on the Government website, Status of EU citizens in the UK: What you need to know.

Failure to provide evidence of right to work not a fair reason to dismiss, says Employment Appeal Tribunal

Like (I suspect) many other practitioners, I often find myself speaking to a client’s employer to explain to them why my client has the right to work.
The most typical example is where a client has submitted an application by post before the expiry of their leave. The document showing their right to work will usually expire before the application is decided. However, section 3C of the Immigration Act 1971 will automatically extend that person’s leave while their application is being decided. Therefore, although they may not have a valid document showing their right to work, they indeed have that right.

My client’s employer will often insist on seeing a document showing their right to work, and, if they cannot provide it, threaten them with dismissal.
At that point, the first step would usually be to tell the employer they should use the Employer Checking Service, asking the Home Office for confirmation that the employee has the right to work. Not all employers will agree to do this. Some will do it only for the Home Office to send the wrong response, incorrectly stating that the employee does not have the right to work.

So are employers acting lawfully if dismissing a client who does not have the documents showing their right to work?
In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal.
Employer’s genuine belief as to immigration status critical

Without venturing too much into employment law, which I know very little about, for a dismissal to be fair:

The employer needs to have a fair reason to dismiss
Even if there was a fair reason to dismiss, the Tribunal must decide if the employer acted reasonably in the circumstances of the case

There are five fair reasons to dismiss, including illegality or “some other substantial reason”. Abellio said that its reason for dismissing Mr Baker, a Jamaican national with the right to work in the UK but no documentary proof of that accepted fact, was illegality. The company thought – encouraged by Home Office advice – that by continuing to employ him in those circumstances, it would be acting unlawfully.

The Employment Tribunal judge agreed, but the Employment Appeal Tribunal found that this was an error. The first instance judge had relied on section 15 of the Immigration, Asylum and Nationality Act 2006, which says that

(1) It is contrary to this section to employ an adult subject to immigration control if –

(a) he has not been granted leave to enter or remain in the United Kingdom, or

(b) his leave to enter or remain in the United Kingdom –

(i) is invalid,

(ii) has ceased to have effect (whether by reason of curtailment, revocation, cancellation, passage of time or otherwise), or

(iii) is subject to a condition preventing him from accepting the employment.

But section 25(c) of that Act defines a person who is subject to immigration control as a person who “requires leave to enter or remain in the United Kingdom”. Mr Baker did not. He had the right of abode or Indefinite Leave to Remain in the UK (which one is not clear from the judgment) and therefore his employer was not obliged under the Act to obtain specific documentary evidence that he had the right to work in the UK. And:

Even if the Claimant had been subject to immigration control, section 15(3) does not impose a requirement on an employer to obtain certain documents. It gives the possibility of excusal from penalty if certain documents are obtained from the employee.

Therefore Abellio had been wrong to believe that it was illegal to continue employing Mr Baker.

Unfortunately for him, though, the tribunal found that the employer’s genuine belief that it would have been acting illegally could be “some other substantial reason” establishing a fair reason to dismiss.

The final step – whether Abellio acting reasonably in all this – was remitted to the Employment Tribunal. Mrs Justice Slade helpfully stated that it will need to take into account what information the employer had and whether that was sufficient to consider whether section 15 of the Immigration, Asylum and Nationality Act 2006 was in play.
What does the judgment mean?

It is good news that there is no requirement on an employer to obtain certain documents to continue employing someone. If an employer is satisfied that its employee has the right to work (as Abellio was) – for example because they have evidence that an application was made on time; or they have a positive verification from the Home Office of the employee’s right to work – they cannot dismiss the employee only because they do not have a document demonstrating that right.

On the other hand, that does not solve the situation when employers are simply not satisfied that the employee has the right to work in the first place, which is often what happens.

Whilst Baker v Abellio is good news in cases where clients work for employers who accept that they have the right to work, those clients whose employers suspect otherwise will continue to rely on the Home Office’s often unreliable Employer Checking Service.