Changes to the Immigration Rules (November, 2012)

The following changes will be made to the Immigration Rules from 13th December, 2012 (we have omitted many minor technical changes and mention only the significant changes.)

Investors

Initial applicants will need to provide evidence of the source of the funds.  

The rules will make clear investors cannot rely on loans raised against investments not in the UK nor rely on any investments not held in the UK.  The rules already precluded these types of investment but the rules are being made explicit in this regard.  Funds will be excluded against which a loan has been secured, where another party would have a claim on the money if loan repayments were not met.

The accelerated routes to indefinite leave to remain will be clarified and technical amendments made.

Entrepreneurs

The English language requirement for entrepreneurs will be lowered to level B1 CEFR.

Students will no longer be able to switch into the Tier 1 (Entrepreneur) category inside the UK, unless they can show £50,000 in funding from a specified source.

Continuous residence requirements for indefinite leave to remain applications

Continuous residence requirements for indefinite leave to remain for PBS work categories – including Tier 1 (General) and pre-PBS work categories will allow absences from the UK of up to 180 days in any of the 12 calendar month periods preceding the date of the application, provided the absence is due to an employment, including annual leave, or business related reason or there are serious or compelling compassionate reasons for the absence. 

Except for Tier 1(General), it is important to note a new continuous residence requirement is also being introduced for indefinite leave to remain applications in these categories, i.e. continuous employment throughout the qualifying period unless there was a change of employer where up to 60 days’ unemployment will be disregarded.

Criminality requirements for indefinite leave to remain applications

The criminality requirements will be relaxed so that an unspent conviction will not necessarily prevent an application for indefinite leave to remain being granted and a clear framework explaining how convictions will be considered will be set out in the Rules.

Tier 2 and Post-Study Worker applying as entrepreneurs

There will be a correction to transitional provisions. Those who entered Tier 2 categories under the Rules in place between 6 April 2012 and 13 June 2012 will be subject to the NQF level 4 requirement when they apply to extend their stay, not the NQF level 6 requirement.

The new rules will provide clarification in respect of graduate occupations and NQF level 4 as it is applied to Tier 1 (Post-Study Work) migrants switching into Tier 1 (Entrepreneur).

The cooling off periods will be made for flexible so that it can start from the date the applicant left the UK (if they can show this) rather than the date the Tier 2 leave expired.

There will be minor changes to the Codes of Practice and Resident Labour Market Test (for some specific categories only, e.g. NHS and pupillage for barristers).

Points-Based System Dependants

The rules will be changed to allow a child to enter the UK or be granted leave to remain or indefinite leave to remain where both parents are Points-Based System migrants. 

Family and private life rules

The rules will be amended to allow applicants with a valid Article 8 claim to be granted leave under the 10-year partner, parent and private life routes.
A parent who was granted leave on the basis of a child in the UK will be able to apply for leave to remain in the UK once the child has turned 18, provided the child is not living an independent life.

Child dependants may be granted leave in line with a parent granted leave on the basis of the parent’s relationship with another child.

A parent and child will be able to apply for leave to remain in the UK on the basis of the migrant parent’s shared parental responsibility for the child’s upbringing.

The private life rules under which a child under the age of 18 can apply for leave to remain on the grounds of private life will be limited to circumstances where it would not be reasonable to expect the child to leave the UK.

The indefinite leave to remain requirements for children are being amended to allow a child who has overstayed to qualify for settlement.

Clarifications will be made to the parent and partner provisions of Appendix FM.
The position on recourse to public funds in the 10 year partner and parent routes will be clarified.

Youth Mobility Scheme

The annual allocation will be increased from 1st January, 2013, for certain countries.