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Changes to the Points Based System of Immigration from April 2011

Changes to the Points Based System of Immigration from April 2011  

The information contained in this blog post is derived from the limited information provided to date by the UK Border Agency (UKBA), as to their plans for the Points Based System of Immigration after April 2011. More information will be published here as soon as it is in the public domain. So far the changes to the Points Based System (PBS) are as follows:

Tier 1 of the Points Based System

Tier 1 (General) scheme

As from 22 December 2010 the Tier 1 (General) immigration scheme was closed to all new applicants from outside the UK. For those applicants inside the UK, from April 2011, the Tier 1 (General) route will also be closed.

No announcements have yet been made of how the UKBA will treat those persons who already hold a Tier 1 (General) visa and who are in the UK at present. Although no direct reference has been made relating to these individuals, the suggestion from the Government is that they will be looking for ways to limit or close the opportunities altogether. Depending on the action taken, actions for Judicial Review may be brought by those who are already in teh UK and hold a Tier 1 (General) leave to remain. Our view is that a transitional arrangement will need to be put in place to cater for these individuals and continue to pave the way toward eventual settlement for those who continue to meet the qualification criteria and who are currently holding these visas.

Applicants who are currently in the UK with a visa that will allow them to switch into the Tier 1 (General) category without leaving the UK, and who qualify under the current criteria need to apply as soon as possible and in any event well in advance of the proposed change in the rules from April 2011. Provided an in-country application is submitted to the UKBA prior to the change of rules, the application must still be decided under the existing rules prior to the date of the change. The UKBA has also announced that there will be a cap of 1000 visas per year under Tier 1, excluding the Investor and Entrepreneur categories.

For applicants who are currently outside of the UK and whose previous Tier 1 (General) visa applications have been approved but whose applications have been delayed due to the annual quota limit, it is very likely that any Tier 1 (General) applications that are held up by that ‘limit’ at the end of March 2011 will be refused automatically.

Tier 1 (Post-Study Work) PSW Visas

The Home Secretary has announced that the UK Border Agency (UKBA) is considering closing this category entirely. The reason provided for this is that 1 in 10 UK Graduates are apparently currently unemployed.

A new Tier 1 category, entitled ‘People of Exceptional Talent’, with a yearly cap of 1000 visas isto be introduced post April 2011. Details of this are scant at present. However; this may indicate an inclination to remove the Tier 1 (Post-Study Work) scheme altogether. The UK Border Agency is very critical of the PSW route, claiming that it is abused by migrant workers to perform low-skilled jobs. Despite this the Home Secretary has not set out what percentage of recent domestic UK graduates could be considered to be performing Highly-skilled work;

Tier 1 (Entrepreneur)

This category will be exempt from the annual cap, and there is a promise that the process of applying for this type of visa will be made “quicker and more user-friendly”. It is unknown what this means, although previously when the UKBA heralded the Points Based System as being ‘simplified‘, that was far from accurate. The Points Based System of UK Immigration (PBS) has been found to be one of the most complex immigration systems in UK immigration history with a huge increase in the number of refusal decisions being made  for technical and non-compliance reasons.

Tier 1 (Investor)

This category will also be exempt from the annual cap. It doesn ot appear that any changes are proposed here and there in no indication that there will be a reduction in the required investment of £1,000,000.

New Tier 1 category – People of Exceptional Talent

The Home Secretary has announced the creation of a new category for ‘People of Exceptional Talent’, with an annual cap of 1000 visas for this type of application. Although details are limited, it seems that in order to qualify under this proposed new scheme, applicants will need to have “won international recognition in scientific and cultural fields, or show exceptional promise to be awarded such recognition in the future”. This scheme may have been constructed simply to appease the scientific and academic communities, who are amongst the loudest critics of the Government’s immigration cap. Clearly the thinking behind this proposal is to appear to welcome non-EU nationals of Exceptional Talent whilst at the same time send a clear message to the remainder of the non-EU workforce that they are not welcome in the UK. We take the view that the proposals fail to meet the existing needs of UK enterprise and the employment market, fail to recognise the multi-cultural aspect of the UK economy now and are likely to impact deeply on the quality and diversity of the workforce in future. The proposal may prove to be nothing more than an attempt to appease the press by the Government appearing to take a proactive approach to UK Immigration which is packaged for public consumption rather than realistic immigration policy meeting the needs of the UK industries and economy. Until these changes were announced, every year, British industry and commerce employed tens of thousands of non-EU staff with professional qualifications and specialisms in their fileds of work, most of whom will now not qualify under the new proposed scheme. Decisions as top who meets the qualification of Exceptional Talent will most likely be highly subjective decisions taken by UK Border Agency staff, unqualified to make such decisions and with scant guidance on applying any meaningful test.

Tier 2 of the Points Based System

Tier 2 (General)

Tier 2 (General) will be restricted to Graduate level jobs only from April 2011. The UKBA will in due course publish a list of roles that will be considered ‘Graduate level’. It is not known whether this requirement will extend to roles currently specified on the Shortage Occupation List. However; the UKBA has indicated that they will “amend the Shortage Occupation list accordingly”; suggesting an end to the roles of chefs and senior care workers.

Furthermore, Tier 2 (General) will be capped at a level of 20,700 for the year from April 2011 until March 2012. There will also be changes to how the Certificates of Sponsorship will be given out to sponsors. The new system will require that all sponsors will have to request additional CoS’s via monthly panel meetings. These requests will be ranked according to the following ‘characteristics’:

  • Whether or not the role is on the Shortage Occupation list;
  • Whether the role requires higher academic qualifications, presumably postgraduate degrees;
  • Whether the role meets minimum salary requirements, to be announced.

In Country applications will not be subject to the cap for now. This will include people who currently hold work permit or Tier 2 visas. It is unclear how this will be applied to people already in the UK with another type of visa which allows them to switch into a Tier 2 (General) visa.

There are indications too that posts that attract a salary of more than £150,000 per year will not be subject to the cap. That is likely to be good news for a few bankers, but does little to address the concerns of the many thousands of other Tier 2 (General) migrants.

It also seems likely that where applicants under the Tier 2 (General) scheme are not from a majority English language speaking country, and have not passed a degree level qualification taught in English, they will now need to pass an English Language Test at a higher level than previously required(B1 on the Common European Framework of Reference, rather than A1). An IELTS score of 4.0 is currently deemed to be at level B1.

Tier 2 (Intra-Company Transfers)

The ICT route is also being changed and from April 2011, in order to transfer staff to the UK for more than 12 months (up to a maximum of 5 years), a company must offer a role attracting a salary of more than £40,000 per year. Individuals earning betwen £24,000 & £39,999 per annum will still be permitted to come to the UK under the ICT provisions, but only for up to twelve months.

The Graduate Trainee and Skills Transfer sub-categories will remain as they are, although the required qualifications criteria may well be adjusted upwards.

Tier 2 (Intra-Company Transfers) will not be covered by the overall annual limit of 20,700, which applies only to Tier 2 (General) applications.

Indefinite Leave to Remain

There can be no doubt that one of the factors attracting non-EU talent to the UK has been the prospect of obtaining Indefinite Leave to Remain after completion of  several years as a Points Based System visa holder. However; the Home Secretary has announced an intention to ‘end the link between temporary and permanent migration’. This indicated that the UK Border Agency will make significant changes to the ILR rules in the future, resulting in no permanent leave to remain for those coming to work in the UK. We are concerned that this makes the UK far less attractive to non-EU professional staff who will undoubtedly now prefer to sell their expertise elsewhere, where they are rewarded for their work with the prospect of a new life in a new country.

If you are affected by any of the changes outlined above or have any other immigration query, we offer a free 30 minute telephone consultation and can assist in assessing your circumstances and advising you of any steps we may be able to take to assist you. Contact us now on 020 8401 7352 for your free 30 minute telephone consultation.