The Legal 500

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.

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.

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.