The Legal 500

In this issue:

Tier 2 'cooling off' period latest news

Rapid increase in visits by the UKBA to Tier 2 sponsors

Changes to Tier 2 sponsor guidance from 14 June 2012  

A premium service for sponsors will be launched by the UKBA on 6 April 2012. The service is designed specifically for companies that sponsor international employees under tier 2 and 5 of the points based system and aims to provide them with enhanced support.

The UKBA is experiencing large volumes of requests from sponsors who have applied to renew their 2012/13 allocation of certificates of sponsorship.

Penningtons has received confirmation from the UKBA after we raised a query regarding reporting on students using the SMS.

The UKBA has announced that the annual cap on skilled workers from outside the EU will remain at 20,700 for the next two years. This means that the number of individuals coming to the UK under tier 2 (general) of the points based system will be limited to 20,700 for 2012/13 and again for 2013/14. In 2014 the limit will be reviewed again by the UKBA.

The UKBA has published new versions of some of its application forms, for use on or after 6 April 2012.

Following the announcement that some standard occupation codes (SOC) will be taken off the graduate list from 6 April 2012, we can now confirm that migrants who were assigned a certificate of sponsorship (CoS) before this date can use them for applications within the normal three month validity period.

In our previous updates we informed you of the latest proposed Government reforms to the immigration system. The latest Statement of Changes to the Immigration Rules implementing the next phase of these reforms was published on 15 March 2012 and simultaneously laid before Parliament. The majority of changes are set to come into force on 6 April this year.

The UK Border Agency has released new guidance for sponsors under tiers 2, 4 and 5 of the points based system which is valid from 6 April 2012. Sponsors should familiarise themselves with the content as amendments will be effective as of 6 April 2012. The new sponsor guidance notes can be found on the UK Border Agency's website.

The Government has formally announced the changes to the Immigration Rules which will come into force from 6 April 2012.

From 10 April 2012, the number of post offices with a biometrics enrolment facility for foreign nationals will increase from 17 branches to 104.

The Government has announced changes to employment related settlement, tier 5 and overseas domestic workers.

The Migration Advisory Committee (MAC), the independent adviser to the Government on migration issues, published its report on the limit on tier 2 (general) for 2012/13 and associated policies yesterday.

The Government's long awaited Statement of Intent was issued on 13 February 2012. It provides information on how the changes due to come into effect on 6 April will operate and announces further amendments which we have summarised below.  A copy of the statement can be found here.

says Immigration Minister

New rules to cut abuse in the student immigration system and ensure only the most talented students can remain in the UK for employment will come into force within weeks.

Immigration Minister Damian Green has proposed an increase in visa fees in addition to an increase in application fees for UK-based visas. The changes are likely to come into force from 6 April 2012, providing they receive parliamentary approval. In his written ministerial statement, Damian Green commented: 'It is only fair that those who use and benefit from the immigration system contribute a higher share of the cost of running it - reducing the burden on the UK taxpayer.'

Immigration Minister Damian Green has reinforced the Government's plans to create a selective and sustainable immigration system which encourages the brightest and best to come to the UK.

There are a number of aspects of the rules for tier 1 investors and entrepreneurs that are unclear or unnecessarily restrictive and we have been in extensive dialogue for many months now with the UKBA on a range of issues, both policy and technical.

It has been announced by the UKBA that the list of approved English language tests for those individuals applying under tiers 1,2 and 4 of the points based system has been amended. One of the main changes is the lowering of the TOEFL points score against the Common European Framework of Reference (CEFR). TOEFL now includes scores for spouse and partner applications.

Important information about the London 2012 Olympic and Paralympic Games has been published online by the UKBA. With the UKBA expecting to carry out security checks on more than 380,000 workers and participants, it has set out detailed information for those individuals who will be travelling to the UK for the event. The information is divided into the following categories:

As reported in our November 2011 Update the UKBA is planning to introduce a 'premium sponsor' category and we expect that this will be in April 2012.

From 3 January 2012, individuals applying under tier 1 (exceptional talent) of the points based system will need to follow new guidelines if they wish to have their application endorsed by Arts Council England (ACE).

The UKBA has been contacting authorised officers at tier 2 sponsors in relation to the new certificate of sponsorship allowance which will become effective from 6 April 2012. Any COS issued from that date will come from the new allocation.

The UKBA has reminded all current tier 4 sponsors that if they are not already subject to inspection or review by the relevant educational oversight bodies, they must apply before the deadline stated in the current sponsor guidance.

From 1 January 2012 the UKBA will begin to process visas for non-UK spectators wishing to travel to the UK to watch the Olympic and Paralympic Games.

In this issue:

Recruiting top international graduate talent from April 2012 Blue bullet

Tier 2 - proposed salary threshold restrictions Blue bullet

Proposal for tier 2 'premium sponsor' and 'SME+' services Blue bullet

Case law - right to work and EEA family members Blue bullet

Tier 4 - branches, partner institutions and the transfer of students Blue bullet

Entrepreneur and investor services Blue bullet

UKBA releases information relating to sponsors

We are currently engaged with the UK Border Agency (UKBA) and a number of business schools, universities, leading colleges and employers on the design of the student entrepreneur and tier 2 routes that will replace the post study work (PSW) route in April 2012.

In this issue:

• Tiers 2 and 5 sponsored employees - work locations

• New look Sponsor Management System (SMS)

• Best practice - how to robustly defend your business against civil penalties
  

• Tier 5 (Youth Mobility Scheme) - update and details Tiers 2 and 5 sponsored employees - work locations

We are seeing an increasing number of sponsors failing to comply with their sponsor duties by employing tiers 2 and 5 sponsored migrants to work at:

- a different location to that stated on the certificate of sponsorship (CoS); or
- branches which have not been notified to the UKBA; or
- client sites without an agreement in place which meets the UKBA requirements.

In this issue:

• Restricted certificate of sponsorship applications
• Online visa applications
• Tier 2 premium/highly trusted sponsorship
• Universities and education providers
• Highly trusted sponsorship for tier 4 sponsors: new guidance published
• Tier 1 (entrepreneur) route: benefits for UK businesses
• UKBA's current consultations

In this issue:

• Prevention of illegal working - self-employment or disguised employment?

• Tier 1 (entrepreneur) category - useful for employers?

• The new brightest and the best category - tier 1 (exceptional talent)

• Employers Taskforce meeting

• Graduates looking to switch - points to note

• Events

Welcome to the latest issue of our education focused immigration update, keeping you informed of new developments in immigration law as they affect the education sector.

In this issue:

• Prevention of illegal working - restrictions on employing international students

• Tier 2 allowances

• Consultation on employment-related settlement, tier 5 and overseas domestic workers

• All-Party Parliamentary Group

• Penningtons bolsters team with new hires

Nichola Carter, who heads Penningtons' immigraton team, is quoted in today's edition of the Law Society Gazette in an article which examines action taken by the UK Border Agency (UKBA) against educational institutions.

In this issue:

• Home Affairs Committee report - UKBA not fit for purpose  
• MPs publish report on PBS
• Your duties as a licensed sponsor 
• The MAC reviews the shortage occupation list  
• Commencement of Section 19 of the UK Borders Act 2007  

UKBA has revised the EEA application forms EEA1, EEA2, EEA3 and EEA4. These forms are for use by EEA and Swiss nationals who are exercising treaty rights in the UK and their family members who wish to apply for a document to confirm their right of residence in the UK.

UKBA has announced that it is introducing new arrangements for skilled workers who arrived in the UK under work routes that have now closed. This means they will now be able to extend their stay in the UK to a total of five years if they meet the requirements.

UKBA has announced its intention to break the link between those coming to work and those settling in the UK permanently by launching a 12 week consultation. The proposal also includes abolishing or reforming the overseas domestic worker visa category.

The new visa rules announced by the Government to speed up the permanent residency process are likely to shoot foreign investors in the foot if their main goal is citizenship says Philip Barth, who heads the immigration law team at Penningtons Solicitors LLP.

The first monthly allocation of restricted tier 2 (general) certificates of sponsorship took place on 11 April 2011. All valid applications received by 6 April 2011 were successful providing they scored at least 32 points.

The Government has announced that new immigration rules relating to tier 2 will take effect from 6 April 2011.

Welcome to the latest issue of this update, keeping you informed of new developments in immigration law.

As previously reported, tier 1 (general) is closed for all out of country applications. The UKBA has announced that the in country tier 1 (general) route will remain open until 5 April 2011 and that there will be transitional arrangements thereafter. We will provide further information on these transitional arrangements once announced.

As reported in our December 2010 update although the tier 2 (intra-company transfer) category (tier 2 ICT) is not to be affected by the annual limit to be introduced in April 2011, there are changes to the tier 2 ICT category that will be coming into effect.

In November 2010, the UK Home Secretary, Theresa May, announced many proposed changes to reduce net migration by nationals of countries outside the European Union. One of those proposals, was to abolish the tier 1 (post study work) category (tier 1 PSW) in April 2011.

With only two months remaining between the interim cap and the permanent cap, it is interesting to note that with each month the criteria for non shortage occupations are rising.

As of midnight on 21 January 2011 identity cards could no longer be used to prove identity or to travel in Europe. The cards have been scrapped by the Government under the Identity Documents Act.

In November, the Government announced that it intended to raise the minimum skill level for jobs under tier 2 from National Qualifications Framework (NQF) level 3 to graduate level. In December the Government asked the Migration Advisory Comittee to advise on graduate level occupations and revisions to the current shortage occupation lists.

Damian Green, the Immigration Minister, gave a key speech on the Government's proposed immigration plans to the Reform think tank on 1 February. The Immigration Minister said he will be:

We previously reported that in the cases of R (on the application of Joint Council for the Welfare of Immigrants) v Secretary of State for the Home Department and R (on the application of English Community Care Association) v Secretary of State for the Home Department (2010) the divisional court held that the Secretary of State's decision to bypass the proper parliamentary procedure, when she introduced interim limits on tiers 1 and 2, was unlawful.

New rules for investors and entrepreneurs will mean a faster route to permanent residence

In measures aimed at reducing the numbers of students entering the UK under tier 4 of the points based system, the new extended Student Visitor Visa (ESVV) came into effect on 10 January 2011. This new temporary measure, which is available only to English language students, means that they can study in the UK for 11 months at any proficiency level. Under tier 4 they may only study English language courses at level B2 of the Common European Framework of Reference for Languages (CEFR) or above and the students must demonstrate a proficiency at level B1 CEFR or above.

The UKBA has announced that it will lay its statement of changes in immigration rules on 16 March 2011. This will consist of the full details of the changes and come in advance of the new cap on immigration which will come into force on 6 April 2011.

From Monday 17 January, the UKBA will be implementing important changes to the way it returns applicants' documents under European law.

The UKBA has updated its guidance relating to family members of UK visa applicants. These rules play an integral role in the the process of handling applications.

The Institute for Public Policy Research (IPPR) has forecast that 2011 is unlikely to see a significant drop in net immigration levels in the UK.

In a move which will cause significant disruption to many UK businesses, the UK Border Agency has announced that it will stop accepting tier 1 (general) entry clearance applications on 23 December 2010.

In a move which is already causing significant disruption to many UK businesses, the UKBA announced on 21 December that it would stop accepting tier 1 (general) entry clearance applications from 23 December 2010. This controversial move closes tier 1 (general) to those who are outside the UK. 

In a move which will cause significant disruption to many UK businesses, the UK Border Agency has announced that it will stop accepting tier 1 (general) entry clearance applications on 23 December 2010. It has also announced that tier 1 (general) will remain open until 5 April 2011 for applications made from within the UK and that there will be transitional arrangements thereafter, the detail of which it will announce in due course. Applications for entry clearance which are filed up to 22 December will be processed according to the current criteria.

The UKBA has announced that a new extended student visitor visa will be introduced from 10 January 2011, allowing English language students to study in the UK for a maximum of 11 months. The extended visa will only be issued to applicants from outside the UK and is available to students at any proficiency level.

Damian Green, the Immigration Minister, has announced stricter rules for student visas in a bid to significantly reduce the flow of non-EU migrants into the UK and curb immigration abuse. Under the new plans, which were released in a public consultation on 7 December, students from outside the EU wanting to stay in the UK to work after completing their courses will be forced to leave.

As of 7 December 2010, all tier 1 (general) visas available for this month have been issued. Under the conditions of the Government's interim cap on the number of tier 1 (general) visa applications, which was introduced on 19 July 2010, only 600 of this type of visa can be issued on a monthly basis.

The UKBA has issued the following announcement:

A scheme is currently being piloted by the Ministry of Justice, the UKBA, the Police and Crown Prosecution Services, to use simple cautions as an alternative to prosecution for foreign nationals who have no legal right to remain in the UK and commit specified document fraud offences but agree to be administratively removed from the country. 

On 7 December 2010 the Government released its proposals for the reform of the student immigration system and launched its consultation on the reform.

As Penningtons Solicitors LLP announced on this site in October, new English language requirements for partners of non-EU migrants entering the UK came into force on 29 November.

The UKBA has recently updated its guidelines on the handling of applications for visit and transit visas. These guidelines only apply for individuals making applications outside the UK. The guidelines set out who qualifies for these types of visas, the requirements in order to obtain one and under which circumstances the applicant would qualify for full rights of appeal if their application was rejected.

The UK will introduce a new entrepreneur visa specifically for those individuals who aim to set up their business in the country. It is hoped by the Government that the introduction of this new visa will encourage those with innovative business ideas to relocate to the UK.

The Bribery Act 2010 is due to come into force in April 2011. Companies with a presence or an 'operation' in the UK, which rely on a network of employees, agents and officials across the world to provide assistance with their global immigration solutions, should pay particular attention to the new risks posed by this legislation.

Penningtons Solicitors LLP highlighted on 18 November 2010 that the Migration Advisory Committee (MAC) had found that 'tier 1 and tier 2 migration clearly has a positive impact on Gross Domestic Product (GDP)'.

In June the Home Secretary commissioned the Migration Advisory Committee (MAC) to advise on the level at which limits on tier 1 and tier 2 of the points based system (PBS) should be set for their first year of operation in 2011/2012 in order to contribute to achieving the Government's aim of reducing net migration to an annual level of 'tens of thousands' by the end of this Parliament. 

The Home Secretary, Theresa May, has given her first major speech on immigration policy since the coalition came into force. Speaking in relation to the proposed permanent cap on non-EU migrants that would be brought in from April 2011, she said that the number of migrants had to be reduced to 'sustainable levels'. A final figure has not yet been decided upon but a decision is expected before Christmas.

David Cameron has said that intra-company transfers should not be included in the immigration cap.

The UKBA has published a report which investigates the jobs being done by migrants under tier 1 of the points based system. Tier 1 migrants currently do not need a job offer before they arrive in the UK. The issuing of a tier 1 visa is dependent on individuals meeting the correct criteria which include age, qualifications and previous earnings.

On 1 November 2010 the UKBA published refined criteria which are to be applied to tier 2 (general) sponsors' requests for additional certificates of sponsorship. The aim of refining the criteria is to ensure that all requests will be approved if they relate to an extension for the holder of a work permit or tier 2 (general) worker, already employed by a sponsor.

Speaking at the annual Confederation of Industry (CBI) conference on 25 October, David Cameron stated that the Government is listening carefully to the concerns of business leaders regarding the immigration cap. His speech gave the biggest hint yet that the Government is prepared to adopt a flexible approach to the cap in order to 'not impede firms from attracting the best talent from around the world'.

The Ministry of Justice (MoJ) has announced that immigrants and asylum seekers will have to pay for the cost of appeals against decisions made over their cases.

The Home Office announced on 20 October that the tier 1 general visa limit had been reached for October, meaning no more tier 1 general visas can be issued until 1 November 2010. Applications for visas can still be submitted in October but individuals will have to wait until November for them to be issued.

New regulations put before Parliament earlier this month mean that individuals applying for further leave to remain in the UK under tier 1 or tier 5 (temporary worker) will receive biometric residence permits.

On 18 October 2010 the High Court ruled that the decision of the UK Border Agency (UKBA) to revoke the tier 4 sponsor licence of London Reading College was unlawful.

The UK Border Agency has introduced a new requirement for applicants to work in the UK under tier 1 (general) and tier 1 (entrepreneur) or any tier 2 category of the points based system.

On 18 October 2010 the High Court ruled that the decision of the UK Border Agency (UKBA) to revoke the tier 4 sponsor licence of London Reading College was unlawful.

As of 29 November 2010, migrant partners of British citizens or people settled in the UK will have to prove they are able to speak and understand English, if they wish to enter the country or remain here. This new requirement means that those affected will have to pass an English language test with an approved test provider.  

Updated policy guidance for tier 2 of the points based system has been published by the UKBA.  

The UK Border Agency's immigration, visa and nationality fee increases came into force on 1 October.  

The Immigration Minister, Damian Green, has staunchly defended the Government's decision to introduce an interim cap on non-EU migrants, in the face of criticism by the Confederation of British Industry (CBI).  

The UKBA has launched a new checking service for settlement applications. The initiative will see the agency working more closely with local government.  

The Immigration Minister, Damian Green, gave a speech on 6 September which is especially important for all those involved in immigration in the context of work and study.

On 19 July 2010 the UK Border Agency (UKBA) started to implement interim limits on non-EU economic migration under tiers 1 and 2 of the points based system. UKBA states that the aim of these measures is to achieve an overall reduction of 5% in the number of applicants in these categories compared to the equivalent period last year. This interim limit will run from 19 July 2010 to 31 March 2011. In April 2011 the Government intends to be in a position to implement new immigration policies following the current consultation exercise.

On Friday 9 July 2010 Mr Justice Foskett ruled that paragraph 120 (a) of Annex A of the Immigration Rules did not allow the Secretary of State to make a substantive change to the minimum level of English language course a tier 4 provider may offer simply by changing the sponsor guidance notes, even though paragraph 120 (a) states that 'The course must meet the United Kingdom Border Agency's minimum academic requirements, as set out in sponsor guidance published by the United Kingdom Border Agency.'

Immigration officials have confirmed to the House of Lords Merits Committee, sitting on 13 July, that they will lay immigration rules to bring in the tier 2 interim limit. UKBA had planned to implement the tier 2 interim measures, announced on 28 June, by simply reducing current COS allocations for sponsors.

The UK Border Agency (UKBA) has this week dispatched e-mails to sponsors who use the tier 2 (general) category of the points based system notifying them of their reduced certificate allocation; part of the Government's widely publicised plan to reduce net migration.

As has been widely reported in the press, earlier this month the High Court upheld Penningtons' client, English UK's, claim that the previous Home Secretary's decision to raise the English language course level under the points based system to B2 CEFR, implemented in March 2010, was unlawful because Parliament had not been afforded the opportunity to scrutinise the rationality for the change (click here for more information). The court also ordered the Government to pay a substantial amount towards English UK's legal fees because, in addition to not succeeding in its defence, it had ignored English UK's offers to withdraw the case if the Government followed the correct legal process and withdrew the change until the matter had been debated by Parliament.

In June 2010 the Government announced plans to introduce compulsory English language testing for all non-European migrants applying to come to the UK to join or marry their settled partner.

The Government has announced its intention to abolish the certificate of approval scheme. This is following a declaration by the UK courts that the scheme is incompatible with Article 14 of the European Convention on Human Rights, read with Article 12. The UK Border Agency states that rulings from the courts have weakened the scheme and it is no longer an effective method of preventing sham marriages. A Remedial Order under the Human Rights Act 1998 has been laid in Parliament to abolish the scheme.

On 2 June 2010 the UK Border Agency (UKBA) included an addendum to the tier 2 policy guidance (version 04/10) in the form of a table. The table replaces the period of grant table for all applications except intra-company transfer: graduate trainee and skills transfer on page 29 of the existing guidance.

A new initiative comes into force today aimed at enabling businesses to attract the best global talent to the UK. Developed and operated by GTI Recruiting Solutions, on advice from Penningtons Solicitors LLP's immigration team, the scheme is backed by the Department for Business Innovation and Skills and regulated by the UK Border Agency.

The appointment of a new government led by David Cameron will almost certainly bring a new set of rules and challenges to businesses which use the immigration system. The Conservative party's promise to reduce 'net immigration to tens of thousands a year, instead of...hundreds of thousands a year....' has been widely debated.

The government plans for identity cards for British citizens to be scrapped within 100 days it was announced today.

On 20 April 2010 the Honourable Mr Justice Sales determined Study UK's application for urgent interim relief relating to the Highly Trusted Sponsor Scheme. The judge has ordered that the case should move forward to a permission hearing to determine if the scheme is lawful. 

A number of measures are being implemented by the UK Border Agency in response to the needs of UK businesses as they focus on future growth.  

English UK, a national association of accredited English language centres with over 400 members, is to proceed with its judicial review of Home Secretary Alan Johnson's decision to change the rules for overseas students wishing to enter the UK to study English. The Government has this week confirmed that it will not challenge the order granting permission to pursue this judicial review.

Significant changes were announced on Thursday 18 March, most of which will come into force on 6 or 7 April 2010.  Many of these changes to the points based system are based on recommendations made in recent reports by the Migration Advisory Committee. Updated guidance will be published by UKBA on 6 April reflecting these changes.

The UK Border Agency has announced proposed fee changes for immigration and nationality applications for 2010/11 that are set at levels above the administrative costs of the service. The negative regulations that specify the fees set at or below the administrative costs of the service will be laid in Parliament on 10 February 2010.

On Wednesday 3 March the UKBA issued an e-mail (subject: 'Important changes to tier 4 from 3 March 2010') which defined the overseas date of application as the date that the fee was paid and that biometric details were enrolled. This information was reflected on the UKBA website at the time.

Due to the complex and frequent changes in tier 4, the widespread media coverage and the anxiety this is causing, education providers need to keep abreast of the new developments in immigration law that are affecting their sector.

On 22 February 2010 the UK Border Agency (UKBA) is introducing changes to the sponsorship management system which will affect tier 2 and tier 5 sponsors. The final phase of tier 4 of the points based system is also being introduced.

Alan Johnson announced on a television current affairs programme that tough new rules were to be implemented for student visas. He said, 'with immediate effect'. The changes announced included the following:

On 10 February 2010 a Statement of Changes to the Immigration Rules was laid before Parliament which is due to come into force on 3 March 2010.

From 1 January 2010, students from countries outside the European Economic Area will be able to apply to enter the UK for up to six months on an exchange or educational visit to a state-maintained school, a non-maintained special school, an independent fee-paying school or an independent non fee-paying school. They will not require entry clearance, unless they are nationals of countries who require a visa to enter the UK.

Regulations extending identity cards for foreign nationals (ICFN) to skilled workers came into force on 6 January 2010. All tier 2 applications made inside the UK now involve the enrolment of the applicant's biometric information (fingerprints and photograph).

There is growing anxiety amongst employers, educational service providers and genuine students that individuals may be applying to study courses solely in order to obtain a visa letter from a trusted sponsor which can then be used to secure entry clearance and enter the UK in order to work.

With effect from Monday 30 November 2009, the UK Border Agency (UKBA) will be introducing fingerprint checks at the border for entrants with biometric UK visas, entry clearances and identity cards for foreign nationals (ICFNs). This is being introduced incrementally and will be operational at all ports across the UK by March 2010.

The UK Border Agency has announced that the requirement to advertise for at least four weeks, as proposed by the Migration Advisory Committee and accepted by the Government on 7 September 2009, will commence on 14 December 2009.

In cases where an employee has overstayed his or her permission to remain in the UK, what is the legal position?

On 5 October 2009 the UK Border Agency (UKBA) published a revised guidance for sponsors.

Alan Johnson, Home Secretary, has announced that the Government is accepting all 16 of the Migration Advisory Committee recommendations in relation to tier 2 of the points based system.

The Migration Advisory Committee ('MAC') has published its report: 'Analysis of the Points Based System: tier 2 and dependants'.

On Friday 7 August, the UK Border Agency (UKBA) issued new guidance notes for sponsors which include a number of significant changes that are incorporated into the system with immediate effect. As such, it is important that sponsors consider the new guidance and make appropriate changes as soon as possible.

- certainty at last as to who will have to 'earn' their citizenship. This Act, which received Royal Assent on 21 July, introduces the concept of 'earned citizenship'. It will extend the basic period of residence in the UK needed to qualify for citizenship from five to eight years for people on work related visas and from three to five years for those with a family connection to a British national. However, applicants will be able to cut two years off their wait, ie back to the current periods, if they carry out approved volunteer work.

This round-up of cases over the last five years highlights a range of issues that are relevant to those who employ migrant workers, including: - dismissal relating to lack or expiry of immigration permission to work - illegality of employment and discrimination - facilitation/proceeds of crime legislation.

Immigration has always been a topic that has generated a great deal of interest and debate due to the impact it has on the populace and on the economy as a whole. Recent examples of these have been the French-owned Lindsey Oil Refinery dispute that was settled when Total agreed to hire more local employees, and Ghurkhas who retired before 1997 are now being allowed to settle in the UK.

BUNAC’s new 'Intern in Britain' programme provides some welcome news for global entities seeking to transfer US students and graduates to the UK for internship placements. Up until now, the points based system has paralysed many UK internship programmes.

Following on from our news article dated 7 April 2009, the UK Border Agency has now confirmed that individuals whose initial applications for approval under the Highly Skilled Migrant Programme (HSMP) were first made before 3 April 2006 may apply for indefinite leave to remain (ILR) after four years lawful residence in the UK.

The Home Secretary, Jacqui Smith, announced measures on 22 February 2009 to raise the bar for foreign workers wishing to enter the UK. She said that the new rules are a reflection of the current economic situation and the Home Office is taking advantage of its new points-based system (PBS) for immigration, which allows greater flexibility to adapt to market conditions, helping British workers through the hard times of the recession.

Tier 1, tier 2 and tier 5 applications - enhanced criminal and other risks for employers (including managers, directors, HR representatives, etc) and individuals We have become aware that the UK Border Agency (UKBA) has recently started to refuse applications to switch into tiers 1, 2 or 5 of the points based system (PBS) by work permit holders where the information supplied in the PBS application is substantially different to information which is held by UKBA in relation to the employee's work permit. They have also curtailed the leave of the individual employee in such circumstances.

2008 saw the biggest change to the immigration system in the past 45 years.

THE POLICY GUIDANCE FOR TIER 2 (SKILLED WORKERS) was published on 5 November 2008 by the UK Border Agency (UKBA). This tier of the points-based system covers the following categories:

One of the most pressing political issues for many migrant-receiving countries has often been controlling and managing migration. 


IN NOVEMBER 2008 THE RULES COVERING TIER 2 (skilled workers) and Tier 5 (youth mobility and temporary workers) under the points-based system (PBS) are due to begin, with Tier 4 (students) following in Spring 2009. Under these tiers sponsorship is required, and sponsors (employers and educational establishments) will be required to undertake certain duties. This article will review the key elements sponsors should be aware of.

OVER THE PAST FEW MONTHS UK IMMIGRATION laws have been subject to continual change and development. This article will highlight some of the most recent changes and others due to take effect in the near future.

IN 2007 PRESIDENT GEORGE BUSH SIGNED INTO LAW the Implementing Recommendations of the 9/11 Commission Act 2007. Among other things, this Act mandated the establishment of a system for obtaining advance electronic travel authorisations from travellers from visa-waiver countries seeking to enter the US without visas under the Visa Waiver Program (VWP). On 3 June the US Department of Homeland Security (DHS) announced that the new system, known as the Electronic System Travel Authorisation (ESTA), will begin accepting voluntary online applications on 1 August 2008, with registration becoming mandatory on 12 January 2009.

THE HOME OFFICE HAS NOW PUBLISHED ITS statement of intent for Tier 2 of the new points-based system, which deals with skilled workers. It is due to be implemented in autumn 2008. Tier 2 is designed to allow UK employers to recruit individuals from outside the European Economic Area (EEA) where the particular job cannot be filled by a British or EEA worker. The requisite skill level has been set at the equivalent of NVQ3 or above to qualify for the tier.

Employers will be required to apply for and obtain a sponsorship licence before they can use Tier 2. The licence application process allows the UK Border Agency to check that the applicant is a genuine employer. Once licensed, employers will be able to sponsor skilled workers in three categories:

The Home Secretary, Jacqui Smith, published a Green Paper – ‘The path to citizenship: next steps in reforming the immigration system’ – (the Paper) in February 2008, announcing measures that will radically alter the way in which foreign nationals become eligible for British citizenship. Although the Paper is only at the consultation stage, it provides a clear indication of how the government proposes to change the law. There is widespread acceptance among communities that migration is a key factor in the UK’s economic growth but there is also concern about the impact on public services. The clear message in the Paper is that citizenship must be earned and that an individual who wants to stay long-term in the UK must speak English, obey the law and contribute to their community.

A statement of changes to the immigration rules (HC321) was laid before Parliament on 6 February 2008, implementing the first phase of the government’s new points-based system (PBS) for UK immigration. In particular, HC321 amended the immigration rules to launch the new ‘Tier 1 (general)’ category for highly skilled migrants, which was rolled out on 29 February 2008. The route initially only applies to highly skilled workers already in the country who want to extend their stay in the UK as a highly skilled migrant or switch into this category. This briefing explores the new Tier 1 (general) category and also highlights other changes made by HC321, in particular a significant change to the general grounds for refusal of immigration applications for leave to enter or remain in the UK.

The Government has strengthened the law on the prevention of illegal migrant working and introduced a new penalty regime for employers who are found to be in breach. The Immigration, Asylum and Nationality Act 2006 (IANA) was passed on 30 March 2006 as part of the government’s five-year strategy for asylum and immigration. The IANA introduces new measures that employers must take to establish whether a worker has a legal right to work in the UK. It replaces the controls and sanctions previously set out in s8 of the Asylum and Immigration Act 1996. The new penalty regime came in to force on 29 February 2008.

In December 2007 the Home Secretary heralded the start of the biggest change to the UK immigration system since 1971. In a statement of intent also released in December (‘Highly skilled migrants under the points based system’), the Home Office set out how it plans to implement the first phase of a simpler, more transparent immigration system intended to boost the UK’s economy.

Sweeping changes are set to take place within UK immigration. The Home Secretary, Jacqui Smith, has announced that immigration, customs and visa checks will be united and performed by the new UK Border Agency. The new Agency is held out to be ‘tougher, smarter and more flexible’. By merging the work of Customs, the Border and Immigration Agency and UK Visas, the UK Border Agency is hoping to strengthen the UK’s security through tougher border control.

The launch of the International Graduates Scheme (IGS) and recent changes to the Fresh Talent: Working in Scotland (FTWS) scheme are aimed at encouraging graduates to pursue a career in the UK.

Despite strong White House support, what appeared to be equally solid bipartisan support from the Senate leadership, and a general consensus in the nation that the immigration status quo was simply not sustainable, the most serious attempt to reform US immigration law in years collapsed in the Senate earlier this summer. With everyone in agreement that something must be done to re-establish control of US borders and rationalise current immigration policy, it is hard to find a compelling explanation for the legislative debacle.

UK Immigration is subject to continuous change and development. This article is a review of the developments of some changes already introduced and those to come in the near future.

The struggle to enact the most wide-ranging reform of US immigration law in a generation was dealt a stunning setback on 7 June 2007, when a cloture1 vote to end debate in the Senate on the proposed reform bill failed on a vote of 45 for to 50 against. Senate majority leader Harry Reid had pressed for the vote to force an end to increasingly rancorous debate over amending the complex proposal, and to bring it to an ‘up or down vote'2 by the end of that week. When the necessary 60 votes to impose cloture failed to materialise, Reid announced that he would pull the reform package from the Senate's agenda and move on to other legislative agenda items.

Education has traditionally been an important element in the wider cultural, political, trade and economic relationships between countries. By taking all or part of their degree abroad, students can help to break down barriers, build friendships between nations and create a close global community. In recent years, education has come to be seen as a highly marketable export commodity.

The right of freedom of movement for persons is fundamental to European integration, which is itself the underpinning of the success of the EU. The right is cemented by Articles 2 and 3(1)(c) of the EC Treaty which provide that for the purpose of establishing a common market and the promotion of harmonious development of economic activities between member states, obstacles to the free movement of persons between member states shall be abolished.

In December 2006 the Home Office published its Borders, Immigration and Identity Action Plan. The Plan forms part of the government's programme of 'radical change' to the immigration system, which has the stated aims of:

On 7 November 2006 Liam Byrne, Minister for Immigration, Nationality and Citizenship, announced changes to the rules for the Highly Skilled Migrant Programme (HSMP). These changes were effective from 8 November 2006. The HSMP was also suspended for 27 days until 5 December 2006, when applications under the new scheme could be made.

On 1 January 2007 Bulgaria and Romania joined the European Union. As EEA nationals, Bulgarians and Romanians will now be able to move and reside freely in any EU member state. They will not require leave to enter or remain to reside legally in the UK.

This summer the Home Office announced a number of measures designed to rebuild confidence in the immigration system. These initiatives followed a period of bad press for the Immigration and Nationality Directorate (IND) that culminated in the foreign prisoner debacle and the appointment of a new Home Secretary, Dr John Reid. Reid has famously questioned whether IND is ‘fit for purpose'.

The Employment Equality (Age) Regulations 2006 came into force on 1 October 2006. The Regulations apply to all businesses, irrespective of size, and protect employees across the age spectrum. The Regulations afford protection from direct discrimination, and also prohibit indirect discrimination, instructing someone to discriminate and aiding unlawful acts. The Regulations also protect those falling with an ‘age group' and prohibit discrimination on the grounds of perceived age.

The law setting out employers' responsibilities for preventing illegal working in the UK has been amended. The Immigration, Asylum and Nationality Act 2006, passed on 30 March 2006, replaces the previous employment provisions in the Asylum and Immigration Act 1996 (s8 and 8A). So far, only certain parts of the new legislation have been made effective (s62 onwards and the administrative provisions). Other provisions will come into force in the future by way of Commencement Orders.

Free movement of persons has existed since the foundation of the European Community in 1957. It was initially linked to a person's status as a salaried worker, but was progressively extended to encompass all categories of citizens except those who would rely on public funds. The Citizens' Directive was implemented through the Immigration (European Economic Area) Regulations 2006 and merges into a single instrument all the legislation on the rights of entry and residence for EU citizens.

The science and engineering sectors contribute significantly to the UK economy. Scientists and engineers also play a valuable role in society by carrying out innovative research, for example, in stem cells, nanotubes, renewable energy, and grid and wireless technologies. In recent years, there has been an increasing demand by the government and employers in the UK for individuals with science and engineering skills. The government has emphasised the need for ‘Britain to be the most attractive location in the world for science and innovation' (HM Treasury, Department of Trade and Industry, and Department for Education and Skills, ‘Science and Innovation Investment Framework', 2004).

The Home Office has recently tightened THE requirements that overseas nationals must meet to qualify for indefinite leave to remain (also known as permanent residency or settlement) and British citizenship. The purpose of these changes is to enforce the government’s view, as stated in its February 2005 paper ‘Controlling our Borders: the Five Year Strategy for Asylum and Immigration’, that permanent migration should be a journey towards being as socially integrated as possible.

Article 49 of the EC Treaty (Article 49) establishes the principle that member states should ensure the freedom to provide services within the European Union (EU). This fundamental freedom includes the right of a service provider established in a member state to temporarily post workers to other member states in order to provide a service.

In February 2005 the Home Secretary announced details of the government's proposed five-year strategy for asylum and immigration. It was stated that the driving force of this strategy was to achieve greater public confidence in the immigration system. After a period of consultation with immigration practitioners and people representing a range of sectors across the UK and overseas, the government has now published its response to this consultation within the Home Office paper ‘A Points-Based System: Making Migration Work for Britain' (the paper).

US illegal immigration is at an all-time high. Close to 11 million undocumented individuals are living in the US today and the number is growing by at least 750,000 each year. Most undocumented workers have been in the US for long time - 70% for more than five years. It has been estimated that it would cost $41.2bn annually for five years to deport the undocumented population. Uprooting these workers would cause severe economic and social disruption, as they make a great contribution to the US economy, working in agriculture, hospitality, construction and other industries.

It is widely acknowledged that highly educated ‘H-1B' foreign professionals, many of whom were educated in the US, bolster the US workforce and propel the economy forward. These professionals fill shortages and provide US companies with unique skill sets and knowledge in specific areas. But the annual cap on H-1B visas means that employers will be unable to access these highly educated professionals until the start of fiscal year 2007, which commences on 1 October this year.

The Civil Partnership Act 2004 (

FROM 1 November 2005 all new naturalisation applicants must demonstrate knowledge of the English language and life in the UK to have their application considered. Applications made before this date will not be affected by this change.

The Home Office has amended the Highly Skilled Migrant Programme to allow MBA graduates from the top 50 business schools in the world to automatically qualify without meeting any further criteria.

New rules introduced in 2005 (the Immigration (Procedure for Marriage) Regulations 2005) require overseas nationals wishing to marry in the UK to obtain a Certificate of Approval before being able to give notice to marry at a registry office. Aimed at preventing bogus marriages solely for the purpose of gaining permission to stay in the UK, the new rules are very wide-ranging and affect large numbers of overseas nationals already living here in the UK.

In November 2004 the UK joined an exclusive club of a handful of countries prepared to recognise civil partnerships between same-sex couples on a par with marriage. This article looks at the effects of the new policy on immigration law.

The United States Citizenship and Immigration Services (USCIS) is the largest immigration service in the world. It receives between six and eight million applications and petitions every year, and employs a staff of 15,000 in its 250 offices worldwide.

Against a background of tightening immigration controls, the Home Office has implemented policies to reduce the options for overseas nationals wishing to extend their stay within the UK.

In today's litigious climate employees are more aware of their employment rights than ever before. They are particularly conscious of their prerogative to pursue claims before employment tribunals and civil courts for infringement of those rights. Consequently, employees have a higher expectation of the level of treatment they receive at work, and employers are required to take ever greater care, through the introduction of appropriate policies, procedures and contractual terms, to protect themselves from potential claims.

Despite many years of research and several attempts at widespread introduction, it is only now that security systems based on biometrics - human characteristics such as faces, hand shapes and fingerprints - are finally being implemented.

In today's business climate, to remain competitive companies must ensure that they address and eliminate immigration issues which could affect the mobility of their workforce. Moving employees to and within Europe can sometimes be problematical.

Immigration has always been a controversial and politically sensitive topic in the UK. As we are now approaching another election, immigration is again one of the main political issues for all parties. Managed migration policies seek to address any labour shortages in the UK, but are also inextricably linked with the asylum policy, in particular the reduction of asylum claims. The government is trying on the one hand to limit access to the UK by asylum and illegal immigration, but on the other hand to promote the important contribution made by legal migrants. This term 'managed migration' is based on a concept that has emerged in the UK in the last five years, specifically from the 2002 white paper on immigration and asylum.

British nationality law is more complex than the equivalent laws of many other countries. It recognises a variety of British nationalities, each conferring different rights. This is mainly due to the history of the British Empire, and the rights that citizens of its colonies and territories have acquired as a result of colonial expansion.

If the UK economy is to attract and retain talented and experienced workers from overseas, there has never been a more urgent time to act. Current Home Office processing delays and predicted changes to the Immigration Rules mean that the government is closing the door on overseas nationals with skills valued by UK businesses.