A new Statement of Changes in Immigration Rules (HC 1779) has been published. This will introduce, predominantly from 10 January 2019, a number of more restrictive measures for some applicants under Tier 5, some minor alterations to the Tier 2 route and a welcome expansion of the Tier 1 (Exceptional Talent) route to include those in the field of architecture. Nick Gore, associate at Carter Thomas, looks at the pros and cons.
Tiers 2 and 5
Religious and charity workers
Currently, those who hold leave to remain in the UK under Tier 5 (Religious Worker) and Tier 5 (Charity Worker) can exit the UK at the end of their leave and immediately apply to re-enter under the same category. The Statement has set out that from 10 January 2019 such applicants will be subject to a 12-month cooling off period, starting from the end of the applicant’s last grant of leave. Applicants will not be able to apply to enter the UK under the same category for the entire 12-month period thereafter.
Concerningly, this change may affect many charities and religious organisations that may rely on international workers. The explanatory memorandum to the Rules sets out that such a cooling off period better reflects the intended temporary nature of the route.
Further, there will be restrictions to the roles Tier 5 (Religious Workers) can perform, including removing the role of ‘preaching and pastoral work’ so as to have a greater distinction between this route and Tier 2 (Minister of Religion).
Seasonal worker pilot
Tier 5 (Temporary Worker) is to be expanded on a trial basis to allow seasonal workers aged 18 and over to work in the “Edible horticulture sector”.
Regarding changes affecting those under Tier 2, the Statement sets out alterations to the Immigration Rules which will reflect the updated Tier 2 Sponsor Guidance and confirms that workers can undertake legally organised strike action that will not affect their immigration status. Previously there were concerns that if applicants were unpaid and absent from work for strike action this may be a ‘prohibited’ change of circumstances, as we covered here.
The definition of professional sportsperson will also be updated. This new definition is much more explicit in relation to the scenarios where the Home Office would consider an applicant is a ‘professional’ rather than an ‘amateur’ sportsperson.
In addition, the Standard Occupational Classifications (SOC) codes, which broadly define the roles eligible for sponsorship, will be updated to include ‘models’. Applicants who do not meet specific criteria must be endorsed by the British Fashion Council (BFC). Coming shortly after the inclusion of fashion designers into the Tier 1 (Exceptional Talent) route, announced in the last Statement of Changes, there seems to be a welcome concerted push from the UK government to allow the fashion world greater access to the UK.
Science, research and academia
The term ‘sponsored researchers’ under Tier 5 has been expanded to include academics, researchers, scientists, research engineers or other skilled research technology specialists who will be hosted at the sponsoring higher education institution in a supernumerary role.
The activities sponsored researchers are permitted to do has also been widened which is good news for UK universities. Permitted activities currently include:
- giving lectures (under Tier 5 it has never been possible for this activity to amount to a formal teaching post and this has been specifically referenced in the new Rules);
- acting as an examiner;
- working on research collaborations.
In addition to the above, sponsored researchers will also be able to:
- undertake ‘skill development/knowledge transfer’; and
- undertake ‘a period of work based training/work experience/internship/placement’.
The new Rules emphasise that Tier 5 sponsored researchers can only work in a supernumerary capacity.
We regularly review Tier 5 files during our mock compliance reviews and provide feedback on the documentation UKVI’s HEAT team will expect to see during an audit. It is essential that clear information is on file that demonstrates the length of the engagement, the renumeration details, that the engagement is supernumerary and temporary and that the individual will be conducting only specified activities. This should be available for inspection in addition to general Appendix D documents.
The list of organisations permitted to directly sponsor researchers via Tier 5, under the ‘UKRI – Science, Research and Academia’ scheme is also being widened.
The Statement includes the below changes to Tier 4 for both students and sponsors:
- a definition of a ‘higher education provider’ is being added to the Immigration Rules as a result of the higher education reform in England;
- a definition of ‘a track record in compliance’ has also been added for those institutions which have had four years of Tier 4 compliance and Educational Oversight. If students attend a higher education provider with a track record in compliance the conditions of their leave will entitle them to work, apply for further Tier 4 leave in the UK, and bring dependants;
- a change has been added to the maintenance requirements so that Tier 4 applicants who rely on student loans or funds from official financial sponsors are no longer required to demonstrate that the funds have been held for a period of 28 consecutive days;
- a further change has been added for Tier 4 (Child) applicants so that the specified documents they submit with their application must confirm (a) who is providing the maintenance funds for study and living costs in the UK and (b) that the funds will remain available to them, unless they are used to pay for course fees and living costs.
Tier 1 (Exceptional Talent)
In expanding the Tier 1 (Exceptional Talent) route further, the Statement sets out that those in the field of architecture will also be able to qualify under this route. Applicants will need to apply for and receive an endorsement from the Royal Institute for British Architects. They will have to meet at least two of these requirements:
- provide evidence of media recognition for their work;
- provide evidence of winning or having been shortlisted for internationally recognised awards;
- demonstrate that they have exhibited their work.
Tier 1 (Exceptional Talent) can be a difficult scheme to enter but it offers flexibility to those who do meet the requirements.
The advantages of the Tier 1 (Exceptional Talent) route will also be expanded further. Applicants will receive an additional four-month period for each grant of leave. As applicants can choose up to five years of leave already, this additional period will allow them more time to prepare Indefinite Leave to Remain applications.
Tier 1 (Investor)
It is also of interest to consider what this Statement does not include. In the last week there have been a number of conflicting messages about the suspension of the Tier 1 (Investor) route but the Statement makes no reference to this. We covered this debacle here.
Peculiarly, the file name for the new Statement of Changes PDF document which was uploaded included the phrase ‘Minus Tier 1 Suspension’, suggesting that this final version that was amended beforehand to remove the suspension of the scheme. Our advice to those who are planning on making an application under the Tier 1 (Investor) route in its current form is still to do so as soon as possible.
The new Rules are a curious mix of some good and some not so good measures and perhaps gives us a taster of what the Immigration White Paper may bring, with professional ‘highly skilled’ roles being prioritised.
The above information relates to the main changes that are relevant to our clients and further changes are contained in the Statement.
For further information, please contact our immigration team.