IMMIGRATION

Throughout the last few months, the UK Government has taken several measures to combat the spread of the COVID-19. One of those measures was the closure of international travel borders. The inability to return to the countries of permanent residence due to flights restrictions and cancellations caused by the COVID-19 outbreak resulted in many people overstaying their UK visas.

The UK Government acknowledged the situation and to date has made several concessions. As such, the Home Office’s initial guidance conferred leave to remain until 31 March 2020 to Chinese citizens only, whose UK visas had expiry date between 24 January 2020 and 30 March 2020. The same was allowed to non-Chinese nationals who were normally resident in China.

The UK Government’s guidance was updated on 24 March 2020 to cover all nationalities, enabling people to extend their visas until the 31st of May.

On 22 May 2020, the UK Government extended its concession to 31 July 2020.

The travel restrictions have now been lifting globally. As a result, the Home Office is now expecting that people take all reasonable steps in order to regularise their immigration status in the UK or to leave the country by the 31st of July 2020. However, the announcement created somewhat of a confusion, since many countries worldwide are still in lockdown, hence, will not be opening their international travel borders at least by the end of August.

The UK Government was prompt to provide further clarifications. On 30 July 2020, amended guidance was published on GOV.UK website stating as follows:

“To allow time to make the necessary arrangements to leave the UK, if you have a visa or leave that was due to expire between the 24 January 2020 and 31 August 2020, you’ll be able to stay within the UK to 31 August 2020.

From 1 to 31 August 2020, the conditions of your stay in the UK will be the same as the conditions of your leave. So, if your conditions allowed you to work, study or rent accommodation you may continue to do so during August 2020 ahead of your departure.”

The announcement further goes on to clarify that those, who intend to leave the UK but unable to do so by the 31st of August, may request additional time to remain in the UK by contacting coronavirus immigration team.

Most importantly, the Home Office has now confirmed that the period of overstaying in the UK between 24 January 2020 and 31 August 2020 will have no future adverse immigration consequences for those, who did not make an application to regularise their immigration status.

If you are concerned about your immigration status in the UK, please do not hesitate to contact our immigration team for advice.

Please note that requirements may vary from case to case based on the nuances of your situation, and the information on this page is not intended to replace legal advice.

In these unprecedented times, Innovator and Start-Up applicants might find themselves in the situation, where they may experience difficulties fulfilling their business plans and maintaining contact with their endorsing bodies.

The Home Office has been prompt in addressing the issues surrounding Innovator and Start-Up migrants may face due to the Coronavirus outbreak:

1. Individuals who have not yet been endorsed

Endorsing bodies may still issue endorsements. If prospective applicants are outside the UK, the endorsing bodies should ask them whether they are able to make a visa application and to travel. The endorsing bodies should also consider with all applicants whether they are likely to be able to start developing their business in the UK under the current situation. If not, they should consider delaying the applicants’ endorsements until a later date.

2. Individuals who have been endorsed but have not yet applied for a visa

Endorsement letters are valid for 3 months. If an individual is unable to make a visa application within this timeframe, the endorsing bodies will need to issue them with a new endorsement (using a new secure reference number) before they can apply. The endorsing bodies should have a discussion with the applicants (as set out above) before they do so.

3. Individuals who have applied for a visa but are unable to travel

Individuals should refer to the Coronavirus (COVID-19) immigration guidance on gov.uk website for the latest information.

4. Individuals who are due to have a checkpoint with their endorsing body

Endorsing bodies should maintain contact checkpoints with the individuals they have endorsed wherever possible. It is not necessary for these to be face-to-face. The Home Office encourage endorsing bodies to arrange checkpoints via telephone or video conferencing. It is important for applicants to know that they continue to have the support of their endorsing bodies. The endorsing bodies should make allowances for the current situation when considering the applicants’ progress against their business plans and where possible, discuss future contingencies. The endorsing bodies must notify the Home Office if an applicant misses a checkpoint without their authorisation.

5. Individuals who need to apply to extend their stay

The endorsing bodies should continue issuing endorsements as normal to individuals who are in the UK, whose visas are expiring and who wish to apply to switch into the Start-Up or Innovator categories or to extend their stay in the Innovator category. For those applying to switch from Start-up to Innovator or to extend their Innovator visa, as with the checkpoint guidance above, the endorsing bodies should make allowances for the current situation when considering the applicants’ progress against their business plans and where possible, discuss future contingencies.

At Chan Neill Solicitors we continue assisting clients with their Immigration enquiries. If you are concerned about your current visa or about your prospective visa application, please do not hesitate to contact our Immigration team.

On 6 April 2020 the Home Office published a new version of a “Tier 2 and 5 of the point-based system: guidance for sponsors”, wherein they have provided the guidance for employers who wish to apply for a Sponsorship License to sponsor migrant workers under the new point-based immigration system that will come into effect from 1 January 2021.

There will be a single immigration system in place for EU and non-EU citizens once the freedom of movement with the EU has ended on 1 January 2021. As such, in order for EU and non-EU nationals to work in the UK legally, they would be required to obtain a valid visa under skilled worker route which will replace Tier 2 (General) visa route. The job on offer will need to be at level 3 or above of the Regulated Qualifications Framework (“RQF”) or equivalent level in Wales or Scotland. This level is approximately equivalent to A-level standard. The minimum salary threshold will be reduced from £30,000 to £25,600 (lower salary level may apply for “new entrants”). The ability to speak English will be a mandatory requirement. According to the Home Office, the applicant would be able to “trade” certain characteristics against the salary that they would otherwise be required to earn in relation to the job on offer.

Those UK based companies, who do not currently hold the Sponsorship License but intend to sponsor migrant workers post 1 January 2021, can apply for one as of now. It is important to note that Licensed sponsors would not be able to assign a Certificate of Sponsorship (“COS”) to a migrant worker at RQF level 5 or below until 1st of January 2021. The Home Office intends to start accepting applications under the new point-based system from Autumn 2020.

Should you require any assistance with the Sponsorship License application, or you require legal advice, please do not hesitate to contact our Immigration team.

If you have a temporary visa that allows you to live in the United Kingdom, it may include the “no recourse to public funds” condition. This means that you are not able to claim most benefits that are paid by the UK Government.

On 23 April 2020, the UK Government published guidance outlining the support available to migrants with “no recourse to public funds”. This article summarises the support offered by the state.

If you currently hold a UK family or private life visa, you can make a “Change of Conditions” application to access UK public funds if:

- You are destitute or at risk of destitution;

- Your child’s welfare is at risk due to low income;

- You are in other exceptional financial circumstances.

When considering making such an application, you ought be aware of the fact that removing “no recourse to public funds” condition would not only place you on the 10 years’ route towards settlement in the UK, but also, if you manage to change it back to 5 years’ route towards settlement, your clock will start from 0.

If you need a medical treatment in the UK (including being tested for the virus and result comes back negative), you will not have to pay for diagnosis of treatment of coronavirus (COVID-19). If you have a medical condition that makes you vulnerable to coronavirus, you can get help, such as deliveries of medication and food.

If you are employed in the UK, you may be able to access:

- Statutory Sick Pay;

- Contributory Employment and Support Allowance;

- Support provided to employers through the Coronavirus Job Retention Scheme.

If you are registered as self-employed, you may be able to apply for a grant through the Coronavirus Self-employment Income Support Scheme.

If you cannot afford rent, the landlord cannot initiate all eviction and possession proceedings, which have now been suspended for 90 days from 27 March 2020. Mortgage lenders offer repayment holidays of 3 months if you are in financial difficulty due to COVID-19 and cannot afford mortgage payments.

Asylum seekers may be able to get housing and money to support themselves and their family members while waiting to find out if they would be granted asylum.

If you are concerned about your immigration status in the United Kingdom, please do not hesitate to contact our Immigration Team for guidance.

In order to sponsor a non-UK/EU national, a UK based company must apply for the Sponsorship Licence. When applying for the Sponsorship Licence, appointed by the company Authorising Officer is required to complete the online application form and supply specified documents to prove that the company is suitable and eligible to undertake its duties and obligations as a Licensed sponsor.

Before the Home Office reaches a decision on the License application, a Home Office Compliance Officer might visit the company’s business premises with a pre-license assessment visit. The visit can be either announced, whereas the Compliance Officer will be in touch with the appointed Authorising Officer via email to agree on the date, time and the location of the visit, or unannounced, where the Compliance Officer turns up at the address specified by the Authorising Officer on the License application form.

The aim of the Compliance Visit is to check:

- that the prospective sponsor has the necessary human resources system in place to carry out their duties if the License is granted;

- that the number of migrants the company wants to sponsor is appropriate to the company’s size and business nature;

- whether there is any evidence to suggest that the prospective sponsor will pose a threat to immigration control;

- any areas of concern that have been identified by the Home Office that require further inspection;

- whether the prospective sponsor can offer genuine employment.

It should be noted that the Compliance Officer that visits the company’s business premises is not the caseworker who makes the final decision on the Sponsorship License application. The Compliance Officer merely gathers the relevant information and the documents, and then prepares a final report which is sent to the caseworker for consideration.

The interview usually lasts at least 2 hours, whereby the Compliance Officer explores topic areas, rather than asking a series of questions. The follow up questions depend on the answers provided by an interviewee; hence, it is imperative that the answers are well thought out and to the point.

In order to be well-prepared for the Compliance visit, it is advisable that the sponsors (prospective and current) read the relevant Home Office policy guidance and seek a legal advice (if necessary), or even consult with an immigration specialist to conduct a mock visit.

At the start of the pre-License interview, the Compliance Office would show their ID, would ask to see the ID of the interviewee and explain the purpose of the visit. Thereafter, the interviewee would be asked a series of questions to establish the company’s genuine trading presence in the UK, such as what is the nature of business, who are the directors/owners, when the business was established and what position(s) are vacant.

There are four main areas that are being assessed in the course of the visit:

- Monitoring Immigration Status and Preventing Illegal Working;

- Maintaining Migrant Contact Details;

- Record Keeping & Recruitment Practices;

- Migrant Tracking & Monitoring;

- General Sponsor Duties.

The Compliance Officer explores each area by asking area-related questions and requesting to see evidence. At the end of the interview, the interviewee will be given a chance to add any information that they deem necessary.

The decision on the pre-license Compliance Visit is made usually within 2-4 weeks from the date of the visit. If the application is refused, the company may ask for a review.

Should you require any assistance with the Sponsorship License application, or should you require a mock Compliance Visit, please do not hesitate to contact our immigration team.

On 25 March 2020 the Home Office published response to the Law Commission’s report and recommendations on simplification of the UK Immigration Rules. The response and recommendations are set out on 49 pages of the guidance. The Home Office’s aim is for the new consolidated and simplified Rules to be in force from January 2021.

The UK Government has realised that for far too long users have struggled to understand the confusing and complex Immigration Rules. I, personally, have heard many times from the prospective and existing Licensed sponsors that they struggle to navigate the Rules and find relevant information in the complex Home Office Policy Guidance. This is the most welcome news that the UK Immigration Rules will be consolidated and simplified, restructured so that they are easy to use and understand and will be drafted in plain English.

It is imperative that the new, simplified Rules are suitable for the non-expert users. It is also welcome that the Simplification of the Immigration Rules Review Committee will seek to maximise the benefits of tech technology to prove the Immigration Requirements.

At Chan Neill Solicitors our ultimate goal is to help Licensed sponsors and migrants to navigate the comprehensive Immigration Rules and Home Office Policy Guidance. Should you have any questions regarding your UK visa situation or regarding sponsorship of migrant workers, please do not hesitate to contact our Immigration Team.

On 7 March 2019, the Home Office published a new Statement of Changes, setting out new requirements, which will be incorporated into the consolidated version of the Immigration Rules over the period from 29 March 2019 until 1 August 2019.

Changes as of 29 March 2019

• Minor changes have been introduced to the definitions of “Employment as a Doctor in Training” and a “Professional sportsperson”

• Definitions of “Start-up migrant” and “Innovator” have been included in the “Introduction” part of the Rules

• Immigration requirements for leave to enter and remain or indefinite leave to remain in the UK for family members of Appendix W “Workers” will be added to Part 8 of the Rules

• Definition of “Prospective Entrepreneur” in Appendix V of the Immigration Rules will be changed. A visitor, who can show support from one or more endorsing bodies for the Start-Up or Innovator visa, would be able to enter the UK to secure funding from any legitimate source

• Appendix W will be inserted into the consolidated version of the Immigration Rules setting out the Immigration Requirements for the Start-up and Innovator visa categories. The changes to this Appendix will take place on 1 August 2019

Tier 1 (Entrepreneur) visa category

• Tier 1 (Entrepreneur) visa category will be closed to new applicants as of 29 March 2019. Those, who have a Tier 1 (Entrepreneur) visa, or have had leave under this visa category in the 12 months immediately before the date of application, may still apply for extension and/or settlement in the UK under this visa route

• Applicants will be allowed to extend their visa under the Tier 1 (Entrepreneur) Scheme if last been granted leave as a Tier 1 (Entrepreneur), a Tier 1 (Graduate Entrepreneur) or a Start-up migrant (having previously held leave as a Tier 1 (Graduate Entrepreneur) Migrant)

• Those applicants, who have entry clearance, leave to enter or remain as a Tier 1 (Graduate Entrepreneur) or a Start-up migrant, or have had such leave in the 12 months immediately before the date of application, would be required to show that they have at least £50,000 available to them or their business or have invested the funds in their business due to their activity

• Money made available from venture capital firms would no longer be accepted for the purpose of initial applications made under the Tier 1 (Entrepreneur) visa route

Tier 1 Investor visa category

• Changes are being made to Tier 1 (Investor) visa category to clarify that if the applicant has or has had leave as a Tier 1 (Investor) Migrant in the 12 months’ period immediately before the date of application, an entry clearance visa would be granted for a period of 2 years. In all other cases, an entry clearance visa application would be granted for a 3 years’ period

• Tier 1 (Investor) applicants, who were granted a visa under this route before 6 November 2014, would be able to rely on existing investments when submitting their extension applications before 6 April 2020 and when submitting their indefinite leave to remain applications before 6 April 2022

• Tier 1 (Investor) applicants, who submit their visa applications under this route after 29 March 2019 or the date of extension application is on or after 6 April 2023 or the date of settlement application is on or after 6 April 2025, would not be awarded points for investments in UK Government Bonds

• The banks would be required to carry out required due diligence checks and Know Your Customer enquiries in relation to each Tier 1 (Investor) applicant

• Under the Tier 1 (Investor) visa route, the 90 consecutive days’ requirement for money to be held under the applicant’s control is being extended to a 2 years’ period

• Under the Tier 1 (Investor) visa route qualifying investments can include pooled investments vehicles, if such vehicles receive funding from a UK or devoted government department or one of its agencies, and the applicant provides a letter from a financial institution regulated by the Financial Conduct Authority to confirm this

• Tier 1 (Investor) applicants, who submit their initial applications after 29 March 2019, and invest in active and trading UK registered companies, must ensure that such active and trading UK companies are registered with the Companies House, HMRC for corporation tax and PAYE, have accounts and a UK business bank account and have at least two UK-based employees who are not its directors

• Clarification is being made to confirm that “price of the investments” means the price the Tier 1 (Investor) applicant paid for the investments, not the face value

Changes as of 30 March 2019

• An entry clearance visa application granted under Appendix EU (Family Permit) may be revoked if an applicant is subject to an exclusion order, an exclusion decision or an Islands exclusion decision as defined in that Appendix

• In line with the changes to paragraph 34QA, under Appendix AR (EU) an application for an Administrative Review may be made from either inside or outside the UK

• General grounds for refusal set out in Part 9 of the Immigration Rules will not apply to applications made under Appendix EU or Appendix EU (Family Permit), except, if the United Kingdom leaves the European Union with a “no-deal” scenario, then, some of the paragraphs of Part 9 of the Rules would apply to migrants, who commit an offence after 29 March 2019

• Changes are being made to Appendix A “Attributes” to clarify how points for an allocation of a restricted COS certificate will be calculated

• The Immigration Requirements set out in paragraph EU2 of Appendix EU will come into force on 30 March 2019

• Appendix EU (Family Permit) will be inserted into the consolidated version of the Immigration Rules on 30 March 2019 (with two exceptions)

• Appropriate salary rates set out in Appendix J in the codes of practice of the Immigration Rules have been revised. New salary rates will come into force on 30 March 2019

Tier 1 (Exceptional Talent) visa category

• Switching from a “Start-up” migrant and an “Innovator” visa category to Tier 1 (Exceptional Talent) visa category will be allowed

• The relevant continuous period under the Tier 1 (Exceptional Talent or Promise) visa category could be combined with leave spent either as a Tier 1 Migrant (excluding as a Tier 1 (Graduate Entrepreneur) Migrant or Tier 1 (Post-Study Work) Migrant), as a Tier 2 Migrant (excluding as a Tier 2 (Intra-Company Transfer) Migrant) or as an Innovator

Tier 2 visa categories

• Applicants will be allowed to switch from a Start-up and an Innovator visa category to Tier 2 (General)

• Migrants will be allowed to switch to the Tier 2 (General) visa category within the UK upon completion of their degree program or no more than 3 months before the expected completion date

• Tier 2 (General) and Tier 2 (Minister of Religion) migrants will be allowed to include leave spent in the UK as an Innovator towards the required qualifying period for indefinite leave to remain

• The minimum threshold for a gross annual salary, when applying for settlement under the Tier 2 (General) visa route, will be set at £38,800, if the date of application is on or after 6 April 2023, and at £40,100 if the date of application is on or after 6 April 2024

Changes as of 6 April 2019

• Time spent under the Tier 4 visa category whilst being below the age of 18, will not count towards the time limits;

• Transitional arrangements in respect of job creation for those Tier 1 (Entrepreneur) applicants, who entered this route before 6 April 2014, will be deleted.

Changes as of 6 July 2019

• Tier 1 (Graduate Entrepreneur) visa category will be closed and being replaced by a Start-up visa category

Should you have any questions regarding the upcoming changes please do not hesitate to contact us.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

On 2 October 2018, the Home Secretary Sajid Javid proposed reforms to the requirements of becoming a British citizen which include toughening English Language requirements and changes to the Life in the UK test.

The Life in the UK test was introduced as one of the mandatory requirements for Naturalisation applications on 1 November 2005 and for Indefinite Leave to Remain (Settlement) applications on 2 April 2007 with a purpose to prove that an applicant has sufficient knowledge of British life and proficiency in the English Language to qualify as a ‘British citizen’. Essentially, this is a computerised test which consists of 24 questions covering topics about British values, history, traditions and everyday life.

The test has been continently criticised for containing factual errors or merely being a “bad pub quiz” with focus on culture and history rather than on liberal, democratic or social values that bind the UK society together.

In his speech, Sajid Javid addressed that “not only will there be a new values test, but we will also strengthen the English language requirements for all new citizens”.

The Home Secretary also announced that those individuals, who have been convicted of the most serious criminal offences, where it is in the public interest, will be deprived of the British citizenship.

If you are concerned that the proposed changes might affect your future UK immigration applications, please do not hesitate to contact our immigration team.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

The Immigration Rules recognise the ties which may have been formed by applicants with the United Kingdom over a lengthy period of residence and therefore allow them to apply for leave to remain in the UK on the basis of long residence.

10 years of continuous lawful residence

According to paragraph 276B of the Immigration Rules, those, who have lawfully resided in the UK for 10 consecutive years, might be eligible to apply for Indefinite Leave to Remain (“ILR”) in the UK.

Once 10 continuous years of lawful residence has been built up, there is no limit on the length of time afterwards when an application for an ILR can be submitted. The Home Office defines residence to be “lawful” if an applicant has had:

• Existing leave to enter or remain in the UK;

• Temporary admission, where leave to enter or remain is subsequently granted;

• An exemption from immigration control

“Residence” does not include time spent in the Republic of Ireland, Channel Islands or the Isle of Man even though they form part of the common travel area.

Applicant must not only meet the definition of lawful residence, but also face the complications imposed by requirement of the residence to be “continues”.

The definition of “continuous residence” is defined by paragraph 276A(a) of the Immigration Rules and essentially means that the applicant:

• Has valid visa when leaving the UK;

• Does not remain outside the UK for more than 6 months at any one time;

• Has valid visa on return to the UK;

• Has spent no more than 540 days outside the UK in total during the 10 years’ period

The long residence may be granted even if there are some gaps in the continuous residence:

• If any applications within the period under consideration were made out of time by no more than 28 calendar days where those gaps end before 24 November 2016;

• Where visa was granted in accordance with paragraph 39E of the Immigration Rules on or after 24 November 2016;

• Applicant must meet all other requirements of lawful residence

Applicants must also meet the Knowledge of Life and Language (“KOLL”) requirement, demonstrate that they are lawfully present in the UK on the date of application and there should be no reasons why granting leave is against the public good.

There is a possibility of applying for Indefinite Leave to Remain within 28 days before completing 10 years’ qualifying period. The application can be submitted on the same day at one of the Public Enquiry Offices or by post.

20 years of continuous residence

Before 9 July 2012 there was a rule which allowed migrants to apply for Indefinite Leave to Remain in the UK after 14 years of continuous residence in the UK, where the residence could be lawful, unlawful or mixture of both. On 9 July 2012 this rule was replaced with 20 years’ rule and if the Immigration Requirements of paragraph 276ADE(1)(iii) are met, an applicant would be granted limited leave to remain for 30 months’ period on the 10 years’ route towards settlement in the UK.

The requirements for limited leave to remain under the 20 years’ route are limited to:

• Not falling for refusal under the suitability grounds;

• Making a valid application for leave to remain;

• Having lived in the UK continuously for at least 20 years

Chan Neill lawyers have successfully assisted applicants with their long residence applications for many years now. Should you require an advice and/or assistance with your long residence application please do not hesitate to contact our immigration team.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.

It has now been officially announced that from November 2018 UK Visas and Immigration (”UKVI”) is introducing a new application process for in-country applications.

According to the UKVI, the new service “will offer a range of benefits to customers, including a streamlined online journey for most application types, a modernised, digital and more secure process of submitting documentary evidence, fast and convenient self-service, more flexible on-demand, mobile application services and enhanced support for vulnerable customers.”

The UKVI’s new partner Sopra Steria will have their appointment booking tool live as of 2nd November 2018. During the period from 9th November to 30th November 2018, the majority of applicants will have a choice between applying using a new or existing visa application process. After 29th November 2018 Premium Service Centres will be closed.

As for the new system, having submitted an application online, applicants will be required to book an in-person appointment at one of the new UK visa centres in order to provide their documentary evidence and biometrics (fingerprints and facial photograph). The new UK VCAS centres will start opening from 9th November 2018.

Should you have any questions regarding the new submission process please do not hesitate to contact us.

Please note that the information on this page is for general purposes only and is not intended to replace legal advice.