UK Tier 2 Visa will be More Difficult and more Expensive to Obtain

21st March 2017

In line with changes to UK policy, a new Immigration Skills Charge will come into effect for many Tier 2 Visa holders from April 6, 2017. The charge will be for the employer who is looking to hire a foreign, non-EU worker, to a UK position using the skilled Tier 2 Visa route. Employers are rushing to complete their applications now to avoid the charge.

There are also rumors this charge will in future apply to companies employing EU nationals. The UK Prime Minister has avoided a proposal by UK Immigration Minister Robert Goodwill to add the £1000 charge for companies hiring EU workers. Robert Goodwill believes this may assuage British workers who feel overlooked for foreign workers. There is controversy as to whether the policy was proposed in this nature but further suggestions elsewhere are that Tier 2 Visa restrictions should be placed on EU workers post-Brexit. The Immigration Minister has expressed concern that not enough has been done to employ skilled British workers and some businesses were over-reliant on hiring foreign skills.

The yearly fee of £1000 for Tier 2 Visa employers will be in addition to existing visa charges and the resident labor market test. So a business employing an Indian engineer on a three-year contract will pay an additional £3000 in fees for doing so. If this was applied to EU and non-EU workers, the bill to UK businesses would be substantial.

Other plans afoot include changes to the seasonal worker’s scheme which would exclude this type of workers from the net migration target and allow tens of thousands to work in Britain for a period of fewer than six months. This is still a suggestion for now.

Businesses are angered by the £1000 Tier 2 Visa fee especially those who depend on highly skilled workers from abroad. And that such a tax can only harm businesses who are already facing uncertainty. Sean McKee of the London Chamber of Commerce said that such a levy on EU migrant workers would surmount to finding many UK firms.

The UK Tier 2 Visa is for skilled workers, where businesses are unable to find the skill set they need from UK workers. It has a maximum duration of five years and fourteen days, with extensions the visa can be for a maximum of six years.

Supreme Court Upholds Minimum Income Requirement for Partners of British Citizens

February 22 2017

The Supreme Court has unanimously ruled that the Home Office’s requirement that a UK citizen must have a minimum annual salary of £18,600 to be able to sponsor their non-EEA national partner’s application to join them in the UK is lawful.

This judgment was the result of an appeal by four affected couples who claimed the ‘Minimum Income Requirement’ (MIR) was a breach of their right to family life enshrined in Article 8 of the European Convention on Human Rights.

The MIR was introduced in 2012 and must be met by nationals of non-EEA countries applying to join their British partners in the UK. The MIR is increased by £3,800 if a non-British child is included in the application and increased by a further £2,400 for each additional child. Only the income of the British citizen will be considered and cannot be combined with the income of the partner. Applicants do have the option to rely on cash savings of the British citizen sponsor but these must be substantial, at least £16,000 plus 2.5 times the difference between the sponsor’s salary and £18,600.

Despite acknowledging that the MIR was beyond the reach of many UK citizens, including many who “provide essential public services”, the Court has held that the MIR is “in principle acceptable” and is not itself unlawful. It forms part of the Government’s “legitimate” strategy to ensure such couples “do not have recourse to welfare benefits and have sufficient resources to be able to play a full part in British life”.

Although the MIR itself is lawful (and is therefore likely to remain in place) the Court did find that it is unlawful for the Home Office to only take into account the income and savings of the British citizen. While it is possible to make this clear in guidance, the Court has recommended that the Immigration Rules should also be amended to require case workers to take into account “other reliable sources of income and finance”. This would include income of the applicant and the promised support of the couple’s friends and family, so potentially making it easier for couples to meet the MIR.

In addition, the Court has held that the rules do not have sufficient regard to the interests of children affected by these types of applications. While Entry Clearance Officers have a statutory duty to have regard to the best interests and welfare of children when coming to a decision, the Court has held that the current rules do not enable this and should be amended to give greater clarity.

The Court has left it to the Home Secretary to propose changes to the Immigration Rules and it remains to be seen when and how these changes will be implemented. In the meantime applicants will need to continue to meet the MIR based solely on the income and/or savings of their British citizen partner.

It is important to note that British citizens are unable to rely on their European freedom of movement rights in respect of these applications and their family members have no option but to meet the requirements of the Immigration Rules. Family members of EEA nationals are not subject to a minimum income threshold. It is unclear whether this position will change once the UK leaves the EU, but it does present an opportunity for the government to treat the family members of British citizens more favourably than other categories of migrants while still meeting its net migration target.

Changes to Immigration Rules , 16 March 2017

The Home Office has laid before Parliament a package of changes to the Immigration Rules. These changes mainly affect applications using Certificates of Sponsorship assigned by sponsors on or after 6 April 2017, the main changes are outlined below.

Overseas criminal record certificates

We are extending the requirement to provide a criminal record certificate to Tier 2 (General) applicants coming to work in the education, health and social care sectors and to their adult dependents.
A criminal record certificate will be required for applicants sponsored in these Standard Occupation Classification codes. Applicants in these codes outside of the Tier 2 (General) route, such as Intra-company Transfers are not affected.
Certificates will also be required from partners applying from overseas, on or after 6 April 2017 who want to join an existing Tier 2 (General) visa holder working in one of these sectors.
For guidance on how to obtain certificates visit www.gov.uk

Immigration Skills Charge

As previously announced in March 2016, an Immigration Skills Charge of £1000 per skilled worker per year is being introduced for employers in the Tier 2 (General) and Tier 2 (Intra-company Transfer) routes. The charge is £364 for small and charitable sponsors.
There are exemptions for PhD-level occupations, Intra-company Transfer Graduate Trainees and those switching from Tier 4 to Tier 2 in the UK. Income raised from the charge will be used to address skills gaps in the workforce. Information is available at www.gov.uk, with further guidance published on 6 April.
As with other sponsorship and visa fees, the charge is payable by debit or credit card only. You may wish to make arrangements with your bank or credit card provider to ensure your card limit is sufficient, particularly sponsors who assign a large number of certificates of sponsorship at one time.
Immigration Health Surcharge
Introduced in 2015, the surcharge is paid by non-EEA nationals who apply to come to the UK to work, study or join family for a period of more than 6 months. It is also paid by non-EEA nationals who are already in the UK and apply to extend their stay.
From 6 April 2017, those applying for a Tier 2 (Intra-Company Transfer) will be required to pay a surcharge of £200 per person per year. Dependents pay around the same amount as the main applicant.

Other changes to Tier 2 applications

• Secondary school teachers in combined science, computer science and Mandarin are being added to the Shortage Occupation List. Secondary school teachers in chemistry are being removed from the list.
• Increasing the minimum salary that sponsors can offer a Tier 2 (General) applicant from £25,000 to £30,000 for experienced workers. Some jobs in the health and education sector are exempt until 1 July 2019.
• Closing the Tier 2 (Intra-company Transfer) Short Term Staff category, meaning that all ICT workers, except graduate trainees must qualify under a single route with a salary threshold of £41,500.
• Reducing the high-earners’ salary for the Intra-company Transfer Long Term Staff category from £155,300 to £120,000. These high earners can stay in the route for up to nine years, rather than the usual five years.
• Removing the requirement for Intra-company Transfer workers to have at least one year’s experience working for the sponsor’s linked entity overseas, for applicants paid £73,900 or above.
• Introducing a waiver for the Resident Labour Market Test and an exemption from the Tier 2 (General) limit for posts which support the relocation of a high value business to the UK or a significant new inward investment project.
• Annual updates to the occupational salary rates in the codes of practice.
• Changes to provide greater clarity and consistency as to which types of allowance will be considered against the salary requirements.
We are also making changes to visit visas, Tier 4 applications as well as minor changes and clarifications to the Immigration Rules relating to family and private life.
Genuine student rule

Under Tier 4 (General), all applicants are required to satisfy us that they are a genuine student. However those applying under Tier 4 (Child) are not. To address this and ensure consistency between the two routes, an amendment is being made to Tier 4 (Child), for those applying at the age of 16 or 17.
The use of the Genuine Student Rule, and credibility interviewing, as a grounds for refusal for those aged 17 or under will be considered on a case-by-case basis and will only be applied where a case is considered to be high risk to immigration control.
Maritime training courses
Under Tier 4 (General) route, if the course is below degree level, the grant of entry clearance or leave must not lead to the applicant having been granted more than 2 years in the UK.
An amendment is being made to extend the time limit to 3 years for courses which are below degree level. This is subject to a regulatory requirement by the Maritime and Coastguard agency that the applicant must spend at least 12 months at sea.
Probationary sponsors
Under the Tier 4 (General) route, sponsors may only sponsor students to undertake courses that meet certain academic standards. An amendment is being made to allow sponsors who have probationary status to sponsor students to undertake courses at a lower level where the applicants are under the age of 18.
This equates to courses at level 3 on the Regulated Qualifications Framework (RQF) in England, Wales or Northern Ireland and Level 6 in the Scottish Credits and Qualifications Framework (SCQF) in Scotland.

Parent of a Tier 4 (Child)

A Tier 4 (Child) student aged under 12 can be accompanied by their parent on the Parent of a Tier 4 (Child) route. An amendment is now being made to allow for older siblings within the Tier 4 (Child) route to also reside with their parent(s) as long as their parent(s) have valid leave on the Parent of a Tier 4 (Child) route.
Parental consent and evidence of the relationship
Tier 4 students who are relying on funding from their parent(s) or legal guardian(s) are currently required to show evidence of their relationship. An amendment is being made to explicitly require that all Tier 4 visa applications that are supported by a consent letter from parent(s) or legal guardian(s) are required to show evidence of the relationship.
Loans for maintenance purposes
Under the Tier 4 (General) route, loan funds for maintenance purposes must be made available to the applicant before they travel to the UK. An amendment is being made to allow loan funds to be paid directly to the educational institution in the UK, with the living costs portion of the loan released to the applicant before or on arrival in the UK.

This change is being made because loans paid directly to educational institutions are deemed to provide sufficient security and evidence that the student has the requisite means to support themselves while studying in the UK.