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Immigration Rule changes from 6 April affecting Employers and Investors.

26 March 2014 Darren Stevenson Immigration

The Home Office has issued another alteration to the Immigration Rules with its customary regularity (HC1138). In fact this is the twelfth change in as many months. This time it is quite a substantial list of changes within a 138 page document. Immigration lawyers and specialists throughout the UK are heard to utter a collective groan each time these are released. Despite not really being law and more policy, Home Office employees treat the rules as utterly rigid and obey them without question; even when this leads to absurd results. A significant part of the document is taken up with the large table comprising Appendix J of the Immigration Rules. Appendix J is important because it lists all the jobs that employers can recruit for from the foreign talent pool and what minimum salaries must be paid. The salary levels are altered from time to time to reflect new statistical information on what would be appropriate for different roles. In this case we see relatively minor increments to a number of roles (specifically a 0.9% annual increase).

Unfortunately as indicated above, rather than a sensible guide, these are interpreted with rigidity. What was an appropriate salary last month may be absolutely unacceptable the next month, even when it reflects a minute difference.

The statement of changes has a number of other fairly important alterations that are worth commenting on. There are in addition lots of small tweaks to different rules, but in the interests of brevity we will leave these for now.

Significantly the Tier 1 Exceptional Talent visa route has now been expanded to allow Tech City UK to provide the required endorsements to applicants. Previously this was limited to a number of prestigious bodies in science, humanities, engineering, medicine or the arts. This is now to be expanded to include Tech City UK a government endorsed digital technology business enterprise. This is great news for the UK's critical digital technology sector and recognises the utility of including leaders and new talent in that field in the Exceptional Talent Route. This is a useful change to improve the UK's ability to compete in this field and attract global talent (though admittedly it does seem quite London centric).

There are also changes to Tier 1 Entrepreneur visas and Tier 1 Investor visas. These seem to be largely clarifications of what are a tricky set of rules and evidence requirements. Of note are changes allowing Graduate Entrepreneurs to look back over 24 months to show investments made and in exceptional circumstances to waive the requirements for Investors to have invested within 3 months of a visa grant.

The government appears unable to resist having a dig at lawyers by indicating:

"Wording is being added to emphasise more explicitly that applicants must provide all the relevant specified evidence, following attempts by some representatives to re-interpret parts of Appendix A differently."

Frankly Upper Tribunal judgements in this area suggest that those 'attempts' were also recognised as valid interpretations by the judiciary and often reflect extremely poor framing, but let's not get waylaid.

In respect of Tier 2, sponsored employment, in addition to the salary alterations we also see the ability introduced for applicants to request 5 years leave rather than a maximum of 3 years. This is helpful. Employers and employees with a long term commitment can avoid the hassle and expense of an interim application for leave.

The final significant change is to amend the levels of maintenance needed to be shown by dependants of any points based system migrants. In general there is a 5% increase in the figures required.

A substantial set of changes then, but largely focused on incrementally increasing various statistically derived figures for salary and maintenance figures. The salary changes are important, we have had numerous employers caught out by these and the Home Office are quite prepared to refuse cases with a 0.9% error in the salary. The Tech City UK inclusion is an important measure reflecting the need for a globally competitive UK digital technology field. Extension of this to a Scottish or wider UK base would also be welcome. Finally the 5 years leave provision in Tier 2 is eminently sensible. There is enough scope within the current systems if employment ends within that period to deal with that and the interim application was entirely unnecessary.

No doubt further changes are imminent, James Brokenshire MP has recently replaced the beleaguered Mark Harper MP as Minister for Security and Immigration. A new minister usually means lots of new changes!



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