[authors: Nicholas J. Hobson and Gemma Goodhead]
New changes to Immigration Rules affect migrant workers and students and include minimum salary thresholds for indefinite leave to remain (ILR) applicants, a new visitor category, and a Graduate Entrepreneur route.
In line with its goal to reduce net migration, the UK government has today announced further measures to restrict the number of migrants from outside the European Economic Area who can enter the UK to work and study and to limit the number of migrants who can go on to "settle" (i.e., who receive the right to remain indefinitely) in the UK. The changes to the Immigration Rules will take effect from 6 April 2012.
A summary of the main changes is set out below.
Changes Affecting Workers
Tier 2 (Sponsored Workers Undertaking a Graduate-Level Role)
A minimum salary threshold of £35,000 (or the minimum salary specified by the Code of Practice, whichever is the higher) will be introduced in April 2016 for Tier 2 migrants seeking to settle in the UK and will affect Tier 2 migrants who have come to the UK since 6 April 2011. Migrants who hold a PhD level or shortage occupation role will be exempt from this requirement.
Further, from 6 April 2012, Tier 2 migrants who first applied to come to the UK under Tier 2 or "switched" their immigration permission into Tier 2 after 5 April 2011 will be subject to a maximum stay of six years in the UK. After that time, the migrant must either apply for settlement or leave the UK.
A "cooling off" period of 12 months will also be introduced for migrants who leave the UK or "switch" their immigration permission out of Tier 2 after 6 April 2012. During the cooling off period, Tier 2 migrants who have left the UK after 6 April 2012 will be ineligible to apply to return to the UK under any Tier 2 category, and migrants who have "switched" out of Tier 2 will be ineligible to "switch" their immigration permission back to Tier 2 whilst in the UK.
Tier 5 (Sponsored Temporary Workers)
Some changes will be made to Tier 5 (Government Authorised Exchange) which will limit a migrants' stay in the UK, for work experience and youth exchange programmes, to 12 months, with no possibility of extension.
Changes in All Tiers of the Points-Based System
From 6 April 2012, the level of maintenance funds that Tier 4 and Tier 5 (Youth Mobility Scheme) migrants will need to demonstrate will increase, whilst the maintenance requirements for other Tier 1, Tier 2, and Tier 5 migrants will increase from 14 June 2012.
The government has also provided more information on introducing a Premium Sponsor Scheme for those A-rated sponsors in Tiers 2 and 5 who wish to apply and pay for a range of benefits. The UK Border Agency will publish the full range of service benefits in due course. The service will launch in the 2012–13 financial year. The UK Border Agency is likely to charge a fee of £25,000 for registration.
A route for overseas domestic workers in private households will be retained, but only when accompanying a visitor. It will be limited to six months' stay with no right to change employers.
A new visitor category will be created to allow a defined group of professionals to undertake specific fee-paid activities for short stays of up to one month without formal sponsorship requirements. Note that this route will only apply to a very limited category of specific types of visitors undertaking "permitted paid engagements" as set out in the Immigration Rules, including visiting examiners, lecturers, qualified lawyers providing advocacy in a court or tribunal hearing, and professionals in the arts, entertainment, and sporting sectors undertaking limited permitted activities in the UK.
Changes Affecting Students
The government is putting into action the below changes, placing increased obligations on Tier 4 sponsors who sponsor migrant students in the UK. The changes will affect migrant students' access to the UK labour market both during and after the end of their course.
The Tier 1 post-study work category will close to new applicants from 6 April 2012. However, a route into sponsored graduate employment through Tier 2 of the points-based system, without the requirement to first undertake a resident labour market test, will be introduced.
A Tier 1 (Graduate Entrepreneur) route will be introduced, with up to 1,000 places available, for students working on world-class innovative ideas who want to stay and develop them but who do not meet the requirements of the Tier 1 (Entrepreneur) route.
In accordance with previously announced changes, all Tier 4 sponsors will need to be classed as "highly trusted" sponsors and will need to undergo inspection by the end of 2012 to become accredited.
Overseas student work placements will be restricted to one-third of the course (except where the course is at degree level and provided by a recognised university, in which case up to 50% of the course could comprise a work placement).
Time spent at degree level under Tier 4 will be limited to five years (with some exemptions for specific, longer courses).
Further information about these changes will be provided when the detailed guidance is published by the UK Border Agency on 6 April 2012.
What Should Employers Do?
Employers that sponsor migrants who are considering returning to their home country or "switching" their immigration permission out of Tier 2 whilst they are in the UK should be aware that a "cooling off" period will apply from 6 April 2012 and should seek legal advice before finalising any arrangements with the migrant.