Statement of Changes in the Immigration Rules HC 863

The government laid a new Statement of Changes in the Immigration Rules (HC 863) on 17 March 2011 before Parliament.

The changes are extensive and implement the government's intentions which have been announced in various policy documents and public statements by the Immigration Minister Damian Green since November of 2010.

Broadly speaking – the changes are designed to encourage migration to the United Kingdom by the world's most affluent and entrepreneurial people; and to discourage or to prevent migration by those who the government regards as inadequately contributing to the UK's economy.

Incentives for affluent and entrepreneurial migrants

The most dramatic change is what the UKBA has on its own site described as "rolling out the red carpet" for foreign entrepreneurs and investors. By adjustments to the existing Immigration Rules for Tier 1 (Entrepreneur) Migrants and for Tier 1 (Investor) Migrants people who qualify for leave to enter or remain in these categories will be able to obtain settlement in the UK much more quickly than before.

Furthermore, Entrepreneurs will now be able to enter as Visitors under the new "Prospective Entrepreneur" Immigration Rules. Currently people wishing to establish a business in the UK had to show that they possessed or had access to £200,000 to obtain leave to enter as a Tier 1 (Entrepreneur).

From April 6 2011 the Prospective Entrepreneur route will instead enable applicants who wish to come to the UK to seek funding or to create a team for a new business idea to be granted visit visas provided that they can show that they personally have access to £50,000 to qualify for entry clearance as a Prospective Entrepreneur, and that either a venture capitalist, a UK entrepreneurial seed funding competition or a government department is committed to providing a further £50,000 for the applicant’s proposed business.

Unlike the other myriad Visitor Immigration Rules from which no switching is permitted – people entering as Prospective Entrepreneurs will be able to apply to switch from that route into leave to remain as a Tier 1 (Entrepreneur) Migrant.

Gleaming at the end of the red carpet lies the prospect of settlement (indefinite leave to remain in the UK). Currently, all employment or business based immigration routes enable migrants to obtain settlement only after five years' continuous lawful residence in the UK.

Following the changes successful Tier 1 (Entrepreneur) Migrants who create ten full time jobs or have a turn over of £5,000,000 will be able to apply for settlement after three years.

Tier 1 (Investor) Migrants fare even better. Those who have invested £10,000,000 will be able to apply for settlement after the investment has been in place for two years. An investment of £5,000,000 will get you settlement after three years.

In the past potential entrepreneurs and investors have been put off coming to the UK by the possibility that they might not succeed in their ultimate application for settlement because they had exceeded the proscribed amount of absences from the UK during the qualifying period of residence. To remedy this HC 863 enables both Tier 1 (Entrepreneur) Migrants and Tier 1 (Investor) Migrants to be absent from the United Kingdom for up to 180 days in any 12 months, without jeopardising their applications for settlement.

Tier 1 (Exceptional Talent)

As well as Prospective Entrepreneurs HC 863 also creates the fifth subcategory of Tier 1 - the Tier 1 "Exceptional Talent" route, for people who have "won international recognition in scientific and cultural fields, or who show exceptional promise". As is familiar – a separate Designated Competent Body will be entrusted by the United Kingdom Border Agency to endorse applicants. That endorsement will get applicants the requisite points.

In common with Tier 1 (General) as it currently exists applicants for entry clearance or for leave to remain as Tier 1 Exceptional Talent won't need to be sponsored by any employer – and successful applicants will have free access to the UK labour market.
Changes to Tier 1 and to other points based system routes

HC 863 also prevents applications into the surviving Tier 1 (General) Route for leave to remain except from those who either already have leave to remain in that capacity, or who still have leave to remain in any of the following (now deleted) immigration categories: Highly Skilled Migrant, Writers, Composers and Artists and Self-Employed Lawyers.

Since 23 December 2010 Tier 1 (General) has of course only been open to those seeking leave to remain in the UK. It has not been possible since that date to apply for entry clearance as a Tier 1 (General) Migrant.

The criteria for indefinite leave to remain as a Tier 1 (General) Migrant are also amended so that applicants will have to pass the same points test which they passed when they initially applied for further leave to remain. This is the implementation of the Government's concern that "Highly Skilled Migrants must do highly skilled jobs".

A striking feature of HC 863 is that it makes only one minor change to the Tier 1 Post Study Work route – whereby people applying to switch into this category can't score points for academic qualifications awarded by an institution which has been removed from the UKBA's list of Registered Tier 4 Sponsors if the qualification was awarded after the education provider was removed from the UKBA's list.

This is contrary to what the government said it in its consultation document in December of 2010. The Student Immigration System - a Consultation. There the UKBA said it was going to close Tier 4 Post Study Work.

Tier 2 is also amended to meet the Government's stipulation that all Tier 2 jobs must be at "graduate level". This is achieved by making it impossible for applicants to score points for Certificates of Sponsorship unless their job appears either in the UKBA's published list of graduate level occupations or in the list of shortage occupations – which the UKBA recently pruned drastically so as to restrict it to jobs at graduate level.

To complicate matters further - more sub categories of what were themselves sub categories are now created. Tier 2 Established Staff – itself one of three existing sub categories of the Tier 2 (Intra Company Transfer) category of Tier 2 – is subdivided into two new sub categories: Short Term Staff and Long Term Staff. This will dictate how much leave to remain an applicant is given.

As before – none of these Intra Company Transfer routes can lead to settlement and everyone must leave the UK at the end of the maximum period of leave to remain which can be granted to an applicant in each respective sub category. If they wish to return they must reapply. The only exception is people who were granted leave to remain as a Tier 2 (Intra Company Transfer) Migrant before the Rules were changed in April of 2010. These people can apply for indefinite leave to remain.

Immigration cap for Tiers 1 and 2

As indicated on this site this Statement of Changes now fixes the annual limits on "economic migration" which were announced by the Home Secretary Theresa May in November of 2010. Only 1000 visas will be issued to people seeking entry clearance under the new Tier 1 (Exceptional Talent) route, and only 20,700 to those seeking entry clearances as Tier 2 (General) Migrants. Tier 2 (Intra Company Transfers) are not affected by this limit.

Changes to re-entry bans

Currently people who leave the UK voluntarily and at their own expense after breaking the law (either by entering the UK illegally, breaching a condition of their leave to remain or by overstaying their leave to remain by more than 28 days) will have any application for entry clearance they make to come to the UK automatically refused for a period of 12 months.
This is the least drastic form the re-entry ban regime takes. If you leave voluntarily but at public expense you'll be banned for 5 years.

HC 863 inserts a change to the regime whereby if you leave promptly and voluntarily but at public expense – you’ll only be banned for 2 years.

The rationale behind this is that it will increase voluntary departures by people who should not be in the UK by providing an incentive to leave the UK.

As can be seen – this is a very extensive set of changes to the Immigration Rules. Two things should be noted – firstly anyone making any application under the Rules before 6 April 2011 will have his or her application considered under the Rules as they are and will be until the end of 5 April 2011.

The second is that the changes and their legal implications for people who are either in the UK or who are considering coming to the UK can't be represented adequately in an article such as this. As has been noted before on this site – with each Statement of Changes in the Immigration Rules the regime becomes more rather than less complicated.

Anyone who thinks they may be affected by the changes – whether advantageously or disadvantageously - is strongly advised to obtain professional legal advice before making any application.

For professional legal advice on immigration or work permit in the UK, contact the Gherson team.