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UK Border Agency – recent changes and new rules as of 6 April 2013

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Posted by Matthew Davies on 25 March 2013

Matthew Davies - Immigration Lawyer
Matthew Davies Partner - Head of Business Immigration

The government will be making numerous changes to Immigration Rules, most of which will come into effect on 6 April 2013.  A summary of the main changes have been outlined here.

Indefinite leave to remain (ILR)

  • The Immigration Rules have been amended to provide more clarity concerning permitted absences from the UK for ILR applications in the main employment routes, including Tier 1 (General), Tier 2 and UK Ancestry. These categories will be permitted absences from the UK of up to 180 days during each 12 month period during the five years leading up to the date the application is submitted. Absences must be for a reason consistent with an applicant's on going employment in the UK, such as authorised annual leave or a temporary secondment overseas.
  • Where an applicant has changed employer during the 5 year qualifying period for ILR, any gap between periods of employment must be 60 days or less otherwise the application will be refused.
  • There is a new criminality test for ILR applications. Applicants will not qualify for ILR if they have within the 24 month period preceding the date of their application been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal that is recorded on their criminal record. There are far stricter sanctions for those who have received a custodial sentence.
  • The criminality test referred to above in ILR applications also applies to Tier 2 and other applicants. Where a person has been convicted of an offence resulting in a prison sentence, eg drink/driving, any application for a visa is likely to be refused. For example, a prison sentence of less than 12 months will result in the mandatory refusal of a visa unless 5 years has passed since the end of the sentence. In the case of a non-custodial sentence, which includes suspended sentences, refusal of a visa application is probable, though discretionary, unless 24 months has passed since the date of conviction. So it is advisable to ask all prospective transferees or new hires whether they have ever received a criminal conviction and for full details if they have done.

Life in the UK Test

All applicants for naturalisation as a British citizen and most indefinite leave to remain applicants will need to pass the "Life in the UK" test before their application can be submitted. The new version of the UK Citizenship test was announced recently and comes into effect on 25 March 2013.  Those taking the test will need to ensure that they have prepared for the test using the 3rd edition of the book entitled “Life in the UK Handbook 3rd Edition: A Guide for New Residents”. For those who have already taken and passed the test based on the previous version, their test certificate will still be valid for the purpose of applying for ILR or naturalisation.

Changes from 6 April 2013

Tier 2

Minimum Salary Thresholds: These have been increased for new hires and intra-company transferees with effect from 6 April 2013. The thresholds are as follows:-

  • Tier 2 General minimum qualifying salary - £20,300 (previously £20,000);
  • New hire General CoS exempt from Resident Labour Market Test - £152,100 (previously £150,000);
  • ICT allowed to extend up to maximum 9 years - £152,100 (previously £150,000);
  • ICT long term staff - £40,600 (previously £40,000);
  • ICT short term staff - £24,300 (Previously £24,000).

Codes of Practice:  These have been substantially revised. New codes will apply from 6 April 2013. The main difference relates to salary. There will be 2 new minimum levels of salary under each code – one for a “New Entrant” and one for an “Experienced Worker”. Any employee extending their leave beyond 3 years will be classified as an experienced worker and the higher level will apply. This is a complex area and we suggest that you contact us at an early stage for advice on how the revised codes of practice will affect new staff or existing staff extending their stay.

Advertising: New rules apply to advertising. Rather than each code of practice specifying acceptable media in which to advertise, there are now general criteria for all codes, including a newspaper with national circulation and published weekly or a recruitment website which does not charge a fee to jobseekers to view the advertisement or to apply for the job. The minimum salary threshold above which it is not necessary to advertise the job on Universal Jobmatch is now £71,000 (previously £70,000). However, in a major change, it is now necessary to advertise jobs with a salary above £71,000 in at least two media whereas only one was previously required.

There is a change to the calculation of the 12 month "cooling off period" for all Tier 2 categories. Under the new rule, the 12 month period can begin from the earliest date that the employee can demonstrate that they left the UK, rather than the expiry date of the employee’s leave. This could be demonstrated for instance by an overseas arrival stamp in the passport or by retaining the ticket to show the date of travel. Sponsors will still need to report to the UKBA if an employee leaves their role prematurely.

Employees with a salary of £152,100 or more will no longer be subject to the cooling off period. Additionally, ICT employees receiving this level of salary will no longer need to satisfy the English language requirement when extending beyond 3 years.

New fees

The UKBA will introduce new application fees on 6 April 2013. Fees in most categories have been raised by a small amount but in the case of dependants applying for leave to remain (including indefinite leave to remain) the fees will increase from 50% to 75% of the main applicant’s fee. New versions of all application forms will be published on 6 April to take into account the new fees.

CoS allocations

Clients are reminded that any unused Certificates of Sponsorship they currently have for the financial year ending 5 April 2013 will be cancelled at midnight on 5 April. If you have not already made a request for your allocation for the financial year 6 April 2013 to 5 April 2014, you may wish to consider doing so now.

About the author

Matthew Davies

Partner - Head of Business Immigration

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

Matthew Davies

Matthew is an expert in business immigration law, advising employers, business people and investors. Chambers UK quotes peers as saying he “has a tremendous knowledge of new developments, and is able to figure out complex situations”.

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