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Statement of changes to the Immigration Rules HC 2631:  changes to work visa routes

Statement of changes to the Immigration Rules HC 2631: changes to work visa routes

A new statement of changes to the Immigration Rules was published yesterday, 9 September 2019. This post will cover changes to work and student visa routes, while a separate post deals with changes to the EU Settlement Scheme and other changes brought about by Brexit. Except where indicated otherwise, these changes will come into force on 1 October 2019.

As always, practitioners are encouraged to read the new rules in full, but we hope this post will highlight the main bits to be aware of.

Tier 2 

Quite a number of (positive) changes were made to the Tier 2 route in this Statement of Changes: 

  • Following the Migration Advisory Committee’s review of May 2019, the Shortage Occupation List has been expanded with professions such as biological scientists and biochemists, psychologists, veterinarians, and architects (but practitioners should note that some professions have been removed too). As CJ wrote at the time of the review, around 1 in 10 jobs are now on the Shortage Occupation list. In addition, companies wishing to offer digital technology jobs in the shortage occupation list will no longer need to meet strict conditions they previously had to satisfy. The main advantage of employing someone on the Shortage Occupation List is that employers do not need to carry on a Resident Labour Market Test. In addition, applicants are exempt from the earnings threshold when applying for indefinite leave to remain (although they must still be paid the appropriate rate for the occupation). These changes come into force on 6 October 2019.
  • Still relating to the Shortage Occupation List, those who followed the BBC show “Who Should Get to Stay” may remember the case of a restaurant owner who could not sponsor skilled chefs because the restaurant offered a take away service. This restriction has finally been removed, such that restaurants who offer a take away service may still sponsor chefs. 
  • Some salary rates have been modified and will apply to certificates of sponsorship assigned on or after 6 October 2019. 
  • PhD level occupations will be exempt from the (20,700) annual limit on visas for skilled non-EU workers from 6 October 2019.
  • Another good news for PhD level occupations is that their absences from the UK for research which is directly relating to their Tier 2 employment will not be counted as absences in an application for indefinite leave to remain. The same applies to their partners who accompany them in these circumstances. 
  • Changes have been made so that those who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action may still apply for indefinite leave to remain even if such absences cause their salary to fall below the required threshold (similar rules already existed for those on maternity, paternity, share parental and adoption leave).
  • From 6 October 2019, jobs can be advertised on the gov.uk “Teaching Vacancies” for the purpose of carrying on a Resident Labour Market Test. 

Start-up and innovator 

To qualify under the start-up route, applicants are usually expected to not have previously established a UK business (if they have, they should apply as innovators). A change exempts students in the UK on the doctorate extension scheme from this condition. 

Changes are also made to the requirements that an organisation must meet to become an endorsing body under these routes, including that their request may be refused on the grounds of “criminality or other actions or behaviour which are non-conducive to the public good” or due to conflicts of interest. 

Tier 1 (investors)

Following the March 2019 Statement of changes, UK government bonds are no longer qualifying investments for Tier 1 (Investors). However the current Statement of changes make provisions for those who were already on the Tier 1 (Investor) route prior to 29 March 2019 to extend or settle in the UK, provided they move their qualifying investments out of UK government bonds. In particular, those who wish to extend their Tier 1 (Investor) leave must move their investments before 6 April 2023, while those who want to apply for indefinite leave to remain must move them before 6 April 2025.

Tier 1 Exceptional Talent

Tech Nation, one of the endorsing bodies for Tier 1 (Exceptional Talent) applicants, has asked that applicants provide three, rather than two, letters of support by established organisations in the digital technology sector. This change brings those applications in line with those applying for endorsement by other designated competent bodies.

In addition, Tech Nation seems to want to attract more “commercially savvy” applicants, and will take into account the commercial impact of the applicant’s previous work, achievements and experiences; and insists on applicants producing “product-led” digital technology rather than just digital technology.

The Royal Society, Royal Academy of Engineering and British Academy are, instead, being more generous, expanding the list of peer-reviewed fellowships which will allow applicants to apply under the fast-track procedure; allowing those who have held a fellowship in the 12 months prior to the application to apply; and allowing a wider range of senior academic or research positions to apply.

Students

Changes have been made so that students on Tier 4 (General) visas will be able to start working for Tier 2 sponsors within 3 months of the completion of their degree. Students who have been supported by an endorsing body can also start their business activities whilst their application for a start-up application is pending.

Another change is being made to allow Tier 4 students studying at masters’ and PhD level to start a different course of study with their current sponsor while they have leave, without having to make an application from overseas.

Professional sportsperson

For the fourth (!) time this year, the definition of professional sportsperson was changed (see Nichola Carter’s post for a bit of history). No doubt partly due to negative media coverage, the Rules went back to confirm that Tier 4 (General) students studying a course at degree level or above can play or coach as amateurs or as part of a work placement undertaken as an integral and assessed part of their course.

(ed. – I’m still convinced this is due to amateur Sri Lankan cricket players and will not hear otherwise)

English language

For once we get rid of an Appendix! Appendix O will no longer exist, and details of acceptable English tests will be on the main gov.uk page (presumably here: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests )

In addition, applicants are no longer required to provide their test certificates, but only the unique reference number, both for English language tests and the Life in the UK Tests, which can be checked by the Home Office.

Lastly, Tier 2-sponsored doctor, dentist, nurse or midwifes whose English language was assessed by the relevant regulated professional body as a requirement for registration will no longer need to pass an additional English language test.

Tier 5

Minor changes to Tier 5 routes include:

  • The Foreign & Commonwealth Office government authorised exchange scheme has been removed.
  • The list of organisations permitted to sponsor researchers under the “UK Research and Innovation – Science, Research and Academia” scheme has been expanded.
  • From 1 January 2020, South Korean nationals applying under the Youth Mobility Scheme no longer need to apply for sponsorship from their government before applying for their visa.

Administrative review

Last but not least, administrative reviews must now be submitted online, unless the original application was made on a valid paper form. 

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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