Immigration changes of 6 April 2012

Transcription

1 2 April 2012 Contents Introduction 1 New Tier 4 requirements 1 New CAS and sponsorship issues 4 PBS dependants 4 Changes to employment routes 4 Immigration changes of 6 April 2012 Introduction New Tier 4 requirements Following the Immigration Rules changes of 24 November 2011 and publication of the UK Border Agency s Statement of Intent, further changes come into effect on 6 April Additionally, new maintenance requirements for Tier 1, Tier 2 and Tier 5 (Temporary Worker) migrants come into force on 14 June Statement of Changes in Immigration Rules HC 1888, published on 15 March, brings these amendments into force. The Tier 4 sponsor guidance, Tier 4 policy guidance and PBS (Dependant) policy guidance accompanying these new Immigration Rules have already been published on the UK Border Agency website. In this document, any references to guidance are to the versions dated 6 April We have produced a consolidated version of the Immigration Rules, which can be found at: www. ukcisa.org.uk/about/material_media/pubs_for_ advisers.php #tier_4_rules A list of questions we have sent to the UK Border Agency about the changes can be found at: php#further5year Five year cap on study at degree level and above For those making Tier 4 applications from 6 April 2012, a grant of leave should not result in students spending more than five years studying at degree level or above in the UK (that is on courses that lead to a qualification at NQF 6/QCF 6/SCQF 9 and above). This will take effect for all Tier 4 (General) applications submitted on or after 6 April It will take into account all previous time spent studying in the UK as a Tier 4 (General) student, or as a Student under the pre-tier 4 rules, at degree level or above. Time spent as a student union sabbatical officer or a postgraduate doctor or dentist will not count towards the five year limit. Only time spent studying will be included. The extra period of leave granted after the course end date will not be included. There will be an element of caseworkers using discretion about what should be excluded from the five year period. However, institutions and students should be cautious in assuming that any time spent outside of the UK will not be taken into account. The following courses are exempt from this five year limit: architecture medicine dentistry

2 UKCISA Special Briefing April law where the student has completed a course at degree level in the UK and is progressing to the Common Professional Examination, the Graduate Diploma in Law and Legal Practice Course, or the Bar Professional Training Course veterinary medicine and science music at a music college that is a member of Conservatoires UK (CUK) The five year limit is extended to six years for students who wish to study a course at Master s level at an institution which meets the UKBA s definition of an HEI, having successfully completed a degree level course in the UK that was at least four academic years long. This exception includes courses that contain a year in industry or a study year abroad. However, the exception does not apply to students who take longer than expected to complete their course, for example because they needed to repeat part of their course or undertake re-sits. The UKBA s definition of a UK HEI can be found in Annex 1 of the Tier 4 policy guidance. The UKBA has stated that it will not grant further leave to continuing students who need an extension in order to complete a course if this will exceed the time limit, except in compelling and compassionate circumstances such as serious injury and disability. This may affect some students who are currently studying in the UK but who do not have enough leave to complete their course. A student who is studying a PhD at an institution that meets the UKBA s definition of an HEI will also be exempt from the time limit while they study for their PhD. However, they will not be granted any further leave under Tier 4 once they have completed their PhD if this further grant of leave would result in them spending more than eight years in the UK as a Tier 4 (General) student. Note that this does not include time spent as a student under the Rules that proceeded the introduction of Tier 4. The Tier 4 policy guidance incorrectly states at paragraph 87 that the PhD must be completed within this eight year period, but the Tier 4 sponsor guidance correctly reflects the Immigration Rules in paragraph 475. The UKBA has stated that this exemption applies to all courses that lead to an exit qualification of NQF 8/CQF 8/SCQF 12 but this is not included in the Immigration Rules or guidance. Immigration Rules paragraphs 245ZV(ga), (gb), 245ZW(b)(iii) and 245ZX(ha), (hb) 245ZY(b)(iii) Tier 4 sponsor guidance paragraphs Tier 4 policy guidance paragraphs Q&As between UUK/UKCISA and UKBA, published 28 March 2012 questions 1-8 Further questions to the UKBA, re. the five year cap, published 29 March 2012 English language requirements for presessional courses followed by degree level courses The concession that students who are issued a joint CAS for a pre-sessional course followed by a degree level course can have an English language level of B1 (not B2) still remains. However, the transitional concession that waived the Secure English Language Test (SELT) requirement for these students (where their sponsor is an HEI and is satisfied that the student is at CEFR B1 in all for language components) will not apply to CAS assigned on or after 6 April From 6 April 2012 these students must have a SELT to demonstrate that they meet the English language requirement of CEFR B1. As before, in order to issue a joint CAS the pre-sessional course must be no longer than three months, the main course of study must start within one month of the end of the pre-sessional course, the place on the degree level course must be unconditional and the pre-sessional course must be with the same education provider as the main course of study, or with a partner institution named on the same sponsor licence. Home Office Statement of Intent: Changes Affecting Study, Post Study Work and Maintenance Requirements for Students and Workers, February 2012 Tier 4 sponsor guidance paragraphs Tier 4 policy guidance paragraphs Q&As between UUK/UKCISA and UKBA, published 28 March 2012 question 12 Work placements For Tier 4 (General) applications made on or after 6 April 2012, work placements must not form more than one third of the total length of the course undertaken in the UK, unless the course is at degree level or above, and: the student is either studying at an institution which meets the UKBA s definition of an HEI, or the student is undertaking a short-term Study Abroad Programme in the UK as part of a course at an overseas HEI In these cases the work placement can be a maximum of 50% of the length of the course undertaken in the UK. The current exemption remains where there is a statutory requirement for a work placement to be longer than 33% or 50% of the length of the course.

3 UKCISA Special Briefing April Immigration Rules paragraphs 245ZW(c)(iii)(4) and 245ZY(c)(iii)(4) Tier 4 sponsor guidance paragraphs Tier 4 policy guidance paragraphs Maintenance requirements increase The monthly maintenance requirements will increase for all applications made under the Points Based System. For Tier 4 and the Tier 5 (Youth Mobility Scheme) this increase will take effect on 6 April 2012 while for Tier 1, Tier 2 and Tier 5 (Temporary Workers) the changes will take effect on 14 June Tier 4 (General) students who apply on or after 6 April 2012 must show 1000 per month if they are studying in inner London, or 800 per month if they are studying elsewhere (up to a maximum of nine months, or two months if the applicant has an established presence in the UK, as defined in the Immigration Rules Appendix C paragraph 14). The maintenance requirements for Tier 4 (Child) students will increase as follows: Where the child will be studying at a non-residential independent school and is in a private foster care arrangement or staying with and cared for by a close relative: 550 per month up to a maximum of nine months. (Paragraph 223 of the Tier 4 policy guidance incorrectly states that these students require 500 per month, contrary to Appendix C paragraph 16 of the Immigration Rules.) Where the child will be studying at a non-residential independent school, is under the age of 12 and will be accompanied by a parent: 1,500 per month, plus 600 per month for any additional child accompanying the applicant and the parent up to a maximum of nine months. Where the child is 16 or 17 years old and is living independently and studying in inner London: 900 per month, (up to a maximum of nine months, or two months if the applicant has an established presence in the UK). Where the child is 16 or 17 years old and is living independently and studying in outer London or elsewhere in the UK: 700 per month, (up to a maximum of nine months, or two months if the applicant has an established presence in the UK). The maintenance requirements for dependants of PBS migrants will also increase. From 6 April 2012 Tier 4 dependants will be required to show 600 per month if the Tier 4 migrant is studying in inner London and 450 per month if they are studying elsewhere in the UK. Maintenance requirements will be reviewed by the UKBA annually. For the first time, the definition of established presence in the UK in the PBS (Dependant) policy guidance matches that in the Immigration Rules for Tier 4 students. Immigration Rules Appendix C paragraphs 11, 14, 16 and Appendix E (ba)(i)(1) and (2) Tier 4 policy guidance paragraphs and Annex 5 PBS (Dependants) policy guidance paragraphs Accommodation deposits For applications made on or after 6 April applicants can offset a maximum of 1,000 paid to a Tier 4 sponsor for accommodation against the Tier 4 maintenance requirements. Although institutions can still request more than this amount from students, no more than 1,000 will be deducted from the level of maintenance funds that the student must have held for 28 days. This 1,000 limit applies to both entry clearance applications made overseas and applications for further leave to remain made in the UK. It also applies to both Tier 4 (General) and Tier 4 (Child) applications. The UKBA has stated that if a Tier 4 (Child) student is attending a residential independent school and is therefore required to show that sufficient funds are available to pay the boarding fees (that is the course fees plus the board/lodging fees) for an academic year, the 1,000 maximum will not apply to the boarding fees; however this is not included in the Immigration Rules or guidance. Immigration Rules paragraphs Appendix C paragraphs 13A and 21A Tier 4 policy guidance paragraphs 161 and 253 Q&As between UUK/UKCISA and UKBA, published 28 March 2012 questions 9-11 If a Tier 4 (Child) student is studying at a residential independent school the current requirement remains that sufficient funds must be available to pay the boarding fees (that is the course fees plus the board/ lodging fees) for an academic year.

4 UKCISA Special Briefing April New CAS and sponsorship issues Interim limit of CAS Between 21 April 2011 and 5 April 2012 the UKBA limited the number of CAS certain sponsors could assign. This is now known as the Former Interim Limit. From 6 April 2012 until the end of December 2012 the UKBA will continue to limit the number of CAS for all sponsors who applied for HTS and/or educational oversight by the specified deadlines, but who are yet to be assessed. From 6 April 2012 these sponsors will be allocated 75% of the number of CAS they were allocated under the Former Interim Limit. Immigration Rules Appendix A paragraphs 115CA-115H Tier 4 sponsor guidance paragraphs Mandatory curtailment of leave From 6 April 2012 curtailment of leave will be mandatory when Tier 4 students fail to start their studies or are excluded or withdrawn from their course, except in the following circumstances: They are under 18 or have a child dependant under 18 They have been granted leave with another sponsor or under another immigration category They have an outstanding application with the UKBA for leave to enter or remain with another Tier 4 sponsor or in another immigration category or have a pending appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 In these circumstances the UKBA will consider whether or not curtailment is appropriate. In addition to this, Tier 4 students may have their leave curtailed if their Tier 4 sponsor ceases to have a sponsor licence. Previously students who have less than six months leave left would not have their leave curtailed, this curtailment threshold has now been reduced to 60 days. Immigration Rules paragraph 323A PBS dependants Babies born in the UK After continued lobbying by UKCISA, paragraph 319H(h) of the Immigration Rules has been amended to include provision for babies born in the UK. This means that babies born in the UK are now able to apply for leave to remain as a PBS dependant despite the fact that they will not have, or last have been granted, leave as the child of a PBS migrant. Immigration Rules paragraphs 319H(h) Changes to employment routes Tier 1 (Post-Study Work) The Tier 1 (Post-Study Work) route will close on 5 April However, it will still be possible for family members of Tier 1 (Post-Study Work) migrants to apply for entry clearance and further leave to remain as the dependant of a Tier 1 (Post-Study Work) migrant after this date. The UKBA has published a Tier 1 (Post-Study Work) policy guidance document that is valid from 6 April 2012, which may lead students to believe that this route is still open after this date. However the addendum to this document clearly states that this is not the case. Tier 2 (General) From 6 April 2012 there will be new provisions under the Tier 2 (General) route for recent graduates with a Bachelor s or Master s degree, PhD, or a PGCE or PGDE from a UK institution that is a UK recognised or listed body, or which holds a Tier 4 sponsor licence. Equivalent qualifications are not acceptable. They must have a job offer from a Tier 2 sponsor with a salary of at least 20,000, or the minimum appropriate rate set out in the relevant Code of Practice, whichever is the higher. There will be no requirement for the job to pass the resident labour market test and the Certificate of Sponsorship (CoS) issued by the employer will not be deducted from their annual limit of restricted Certificates of Sponsorship. PhD students can switch into this route from Tier 4 if they have completed at least 12 months of study. All other students must have completed their studies and have been awarded their qualification. Applicants must be applying from within the UK and must have current leave as a Tier 4 (General) student, or under the student categories that proceeded Tier 4. Tier 4 (General) students who have submitted an in-time Tier 2 application after successfully completing a degree level course at a Tier 4 sponsor which is a Recognised Body or HEI are allowed to begin their job with the Tier 2 sponsor while their application (and/or an appeal against an unsuccessful application) is pending.

5 UKCISA Special Briefing April From 6 April 2012 migrants with existing leave under Tier 1 (Post-Study Work), the Fresh Talent: Working in Scotland Scheme, or the International Graduate Scheme (or its predecessor, the Science and Engineering Graduate Scheme) will no longer need to have worked for their employer for six months in order to be exempt from the resident labour market test when applying to switch into Tier 2 (General). Dependants of migrants under this route can come to the UK under the same conditions as other Tier 2 migrants or they can extend their stay in the UK if they are already here as a Tier 4 dependant. Someone switching from Tier 4 partner leave to Tier 2 will, from 6 April 2012, be required to apply with a restricted CoS in the same way as those who apply for entry clearance. Immigration Rules paragraphs 245HD(b)(ii), 245HD(d), 245ZW(c)(iii)(7) and 245ZY(c)(iii)(7) Tier 2 policy guidance paragraphs 16, 17, 56, Tier 2 sponsor guidance paragraphs 230(d) and 288 Tier 1 (Graduate Entrepreneur) From 6 April 2012 students who have completed a degree course in the UK and who wish to develop ideas or entrepreneurial skills by setting up a business in the UK can apply for further leave to remain under the Tier 1 (Graduate Entrepreneur) route. They must be in the UK and must be sponsored by the institution from which they have graduated. Entry clearance applications cannot be made under this route. Students cannot apply under this route if they have previously had leave under Tier 1 (Post-Study Work), the Fresh Talent: Working in Scotland Scheme, or the International Graduate Scheme (or its predecessor, the Science and Engineering Graduate Scheme). The scheme is open to all institutions that are Highly Trusted Sponsors (HTS) under Tier 4 (and A-rated under Tier 2 if applicable). There will be certain requirements for sponsors such as processes for identifying and developing entrepreneurs, assessing their progress, and reporting to the UKBA if they cease to participate. Sponsors will not be penalised if graduate entrepreneurs whom they are sponsoring are unable to develop their ideas and instead choose to leave the UK. However, if sponsors fail to meet their responsiblities with regards to their graduate entrepreneurs, for example monitoring progress, then this will affect their HTS status under Tier 4. There will be a limit of 1,000 places for each of the first two years, to be divided equally between participating HEIs, with a maximum of ten per institution. Invitations to take part in the scheme have been sent to institutions authorising officers and key contacts; the deadline for response is 4 May Successful applicants under this route will initially be granted leave for 12 months, which may be extended to 24 months if their sponsoring institution is satisfied with their progress. At the end of this second year they must either switch into Tier 1 (Entrepreneur) or leave the UK. Tier 1 (Graduate Entrepreneur) migrants and Tier 1 (Post-Study Work) migrants who have established their own business in the UK will need funds of only 50,000 (not 200,000) to switch into the Tier 1 (Entrepreneur) category. Tier 1 (Graduate Entrepreneur) migrants can take employment for up to 20 hours a week in addition to the time spent developing their business. They will also be able to have dependants with them in the UK as long as their dependants meet the Tier 1 maintenance requirements. Immigration Rules paragraphs 245F-245FB Tier 1 (Graduate Entrepreneur) policy guidance Tier 1 (Exceptional Talent) The annual limit of 1,000 places under the Tier 1 (Exceptional Talent) route will be renewed for each of the next two years, from 6 April It has been clarified that Tier 1 (Exceptional Talent) and Tier 1 (Graduate Entrepreneur) applications cannot be submitted at Public Enquiry Offices. Tier 5 (Government Authorised Exchange) From 6 April 2012 Tier 4 (General) students can switch into Tier 5 (Temporary Worker) if they are applying under a Government Authorised Exchange scheme to undertake a period of professional training or work experience that is required to obtain a professional qualification or professional registration in the same professional field as their qualification, after graduation and before returning overseas. Visitor for paid engagements A new visitor category is being introduced on 6 April 2012 which will allow professionals, artists, entertainers and sportspersons, who are invited to come to the UK to undertake short-term permitted fee paid engagements for up to one month. This may be useful for visiting lecturers or examiners.

6 UKCISA Special Briefing April A visitor under this route must intend to do one of the following activities: Examine students and/or participate in or chair selection panels as a visiting academic, who is highly qualified within his or her own field of expertise, invited by a UK HEI or a UK based research or arts organisation as part of that organisation s quality assurance processes. Give one or more lectures in her or her field of expertise as a visiting lecturer, invited by a UK HEI or a UK based research or arts organisation. As an overseas designated pilot examiner, assess UK based pilots to ensure they meet the national aviation regulatory requirements of other countries, by invitation of an approved training organisation based in the UK that is regulated by the UK Civil Aviation Authority for that purpose. Provide advocacy in a particular area of law as a qualified lawyer for the purposes of a court or tribunal hearing, arbitration or other form of alternative dispute resolution for legal proceedings within the UK, at the invitation of a client in the UK or a foreign based client. Undertake an activity relating to the arts, entertainment or sporting professions, by invitation of an arts or sports organisation or broadcaster based in the UK. Applicants under this route must have a formal invitation and must be able to show that the engagement relates to their area of expertise and/or qualifications, and full time occupation overseas. Immigration Rules paragraphs 56X-56Z UKCISA 9 17 St Albans Place London N1 0NX T +44 (0) F +44 (0) UKCISA is a company limited by guarantee registered in England and Wales (Company Number: ) and a charity registered with the Charity Commission for England and Wales (Charity Number: ). Its registered office is at 9 17 St Albans Place London N1 0NX. UKCISA April The information contained in this Briefing is given in good faith and has been carefully checked; UKCISA accepts no legal responsibility for its accuracy. Written by Victoria Everett Members of UKCISA are permitted to copy and distribute this document to staff within their organisation