UK immigration update - February 2018

14 February 2018

Immigration Rules

The end of 2017 saw changes to the Immigration Rules (published on 7 December 2017), a number which came into force on 11 January 2018.

Employment

One of the biggest developments in the Tier 2 category has been the exceeding of the monthly quota of Tier 2 (General) restricted certificates of sponsorship (RcoS) in the December 2017 and January 2018 panels with roles (not on the shortage occupation list or at PhD level) offering a salary of under £50,000 being refused (January 2018 allocation). Given the current trend, it is highly likely that the quota will be met again in February and March, following the number of re-submitted applications.

Other notable changes and developments in the Tier 2 category effective from 11 January 2018, include:

  • a requirement for Tier 2 sponsors to report changes to the size of their business (from small to large or vice versa) within 10 working days of the change occurring; and
  • allowing Tier 4 (General) students to apply to switch into Tier 2 (General) following completion of their course, rather than passing it.

It has also been reported that the Government intends to double to immigration health surcharge (IHS) from £200 to £400 per annum (and from £150 to £300 for students) towards the end of 2018.

Indefinite leave to remain in the UK (ILR) – main applicants and PBS dependants

  • a change was introduced to the way absences are calculated for the purposes of indefinite leave to remain in the UK (ILR) applications for PBS migrants submitted on or after 11 January 2018. Previously, absences of up to 180 days in fixed 12 month blocks were allowed, however following the changes, absences will be calculated on a rolling basis, meaning that applicants must not be absent from the UK for more than 180 days in any 12 month period. Laura Devine Solicitors is involved in lobbying the Home Office to dis-apply the changes from being applied retrospectively. Until further notice however, applicants will have to submit their ILR application on the basis of the new, less favourable provisions; and
  • changes to the Immigration Rules were made bringing absences of PBS dependent partners who have made an application for leave on or after 11 January 2018 in line with main PBS migrants (up to 180 days in any 12 month period).

Tier 1 (Exceptional Talent)

  • increasing the Tier 1 (Exceptional Talent) limit to 2000 endorsements per year with allocation among the designated competent bodies on a first come first served basis; and
  • allowing migrants endorsed under the exceptional talent criteria (rather than promise) to apply for indefinite leave to remain after three years.

Tier 1 (Entrepreneur)

There were a number of changes to this category, with the most notable including:

  • amending the Rules to prevent applicants from relying on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member; and
  • changes were made to the job creation rules for extension and settlement applications to allow applicants to apply in cases where their current leave was granted less than 12 months ago, provided the jobs existed for at least 12 months before the date of the application.

Procedural

Amendments were made across the Rules allowing the recognition of an electronic entry clearance replacing physical endorsements in migrants’ passports. The scheme will undergo a trial, following which it is expected that it will be rolled out to all immigration categories.

Brexit

With the UK and the EU finally reaching an agreement on citizens’ rights in early December, one might think that the period of uncertainty for EU nationals in the UK and their employers is over. However, whilst providing some much needed clarity, the agreement raises as many questions as it provides answers and with the caveat that ‘nothing is agreed until everything is agreed’ uncertainty is bound to continue in the months ahead.

The most recently published ONS migration statistics reveal that net EU immigration to the UK in the second quarter of 2017 fell to its lowest level since records began, while EU emigration increased. This is a worrying trend given that, since the Brexit referendum, there has been no change in EU free movement law and no material changes to the UK Immigration Rules driving this reduction; so the fact that fewer skilled people are coming to the UK and more are leaving is not due to greater control of migration, rather it reflects the personal choice of migrants – the numbers are falling because the UK is seen as a less desirable place to do business, to live and work.

As uncertainty following the Brexit referendum remains a deterrent to EU migrants, there are a number of ways in which employers can support and reassure their EU workforce and plan ahead to protect the business from future changes including running seminar sessions for staff, supporting and financing applications where appropriate and analysing their workforce composition and assessing alternative immigration solutions post-Brexit.

What next?

The second phase of EU-UK talks on the future relationship between the UK and the EU began in London earlier this week and will continue in the months ahead. Whilst the December 2017 agreement is a step in the right direction, given the difficulties in the initial phase of the negotiations, it is no longer inconceivable that a deal may not be reached. Therefore, as things stand only one thing is certain about Brexit – uncertainty is here to stay.

For detailed information on the rights of EU citizens in the UK post Brexit visit our Brexit FAQs.

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