United States: Statement Of Changes Published, Impacts EU Settlement Scheme, Tier 1 And Tier 2 Visas

Last Updated: September 16 2019
Article by Fragomen  

At a Glance

The Home Secretary has published a Statement of Changes to the UK Immigration Rules. Relevant changes include:

  • Changes to the EU Settlement Scheme (EUSS) including a new right of administrative review and clarification that close family members of UK nationals returning with them from the European Economic Area or Switzerland will be able to make an application until March 29, 2022 (if the relationship existed on exit day) or December 31, 2020 (if the relationship was established after exit day.)
  • Removal of PhD roles from the Tier 2 (General) annual quota and a wide expansion of the Shortage Occupation List, as recommended by the Migration Advisory Committee earlier this year.
  • Confirmation that Tier 2 migrants will not be penalized for any absence from work due to sickness, statutory parental leave, assistance in a national or international humanitarian or environmental crisis or legal strike action.
  • Changes to Tier 1 category including the closure of the Tier 1 (Entrepreneur) category for new applicants, amendments to the investment criteria for Tier 1 (Investor) extension and settlement applications, and changes to the Tier 1 (Exceptional Talent) category requested by competent bodies.
  • Changes to the Start-up and Innovator categories including confirmation that business activities can be started earlier, relaxation of Start-up visa requirements for Tier 4 (General) students on a doctorate extension scheme, clarification of the qualifying criteria an organization must meet to be an endorsing body, and the removal of a 'checkpoint' between an applicant and their endorsing body after 24 months in the Start-up category.

Most changes are effective October 1, 2019.


The situation

The Home Secretary has published a Statement of Changes to the UK Immigration Rules, clarifying various points about the EU Settlement Scheme (EUSS), confirming changes under Tier 2, including the removal of PhD roles for the Restricted Certificate of Sponsorship (RCoS) cap and amendments to the Shortage Occupation List (SoL), and under Tier 1, including the closure of the Tier 1 (Entrepreneur) category for new migrants, amendments to the investment criteria for Tier 1 (Investor) extension and settlement applications, and changes to the Tier 1 (Exceptional Talent) category.

A closer look

Below is a summary of the pertinent details of the Statement of Changes. Other important changes are described in detail here.

CHANGE DETAILS IMPACT

EU Settlement Scheme (EUSS)

Family members of UK nationals

  • Close family members of UK nationals returning with them from the European Economic Area (EEA) or Switzerland having lived there together while the UK national was exercising their free movement rights will be able to make an application under the EUSS until March 29, 2022 (where that relationship existed on exit day) or until December 31, 2020 (where that relationship established post-exit day) in both deal and no-deal scenarios.
  • The EUSS is more generous and flexible than family reunification rules under the UK Immigration Rules. For example, it does not impose an GBP 18,600 (or higher if additional children apply) minimum salary threshold, which spouses of UK nationals who did not exercise free movement rights must demonstrate. Eligible close family members who do not apply to the EUSS on time will be subject to stricter requirements under the new UK immigration rules.
New right of Administrative review under EUSS
  • A right of administrative review has been provided to individuals who have had their status under EUSS cancelled at the border by an Immigration Officer on the basis that they no longer meet the requirements for that status.
  • Affected individuals now have a mechanism to challenge status cancellations at the border.
Tier 2
Removal of PhD occupations from Tier 2 Cap
  • PhD level occupations will be exempt from the Tier 2 General Visa limit and therefore will not require a RCoS.
  • PhD level migrants undertaking research overseas directly linked to their Tier 2 employment may do so without absence being 'counted' for Indefinite Leave to Remain (ILR) applications. If accompanying them, the same applies for dependant partners.
  • This should free up places in the monthly allocation process for other skilled roles that contribute to the economy.
  • The aim of this change is to welcome researchers and other highly-skilled individuals to the United Kingdom. These changes will be implemented October 1, 2019.
Changes to SoL
  • The UK government has implemented the MAC's recommendations on the SoL.
  • The Statement of Changes states that all roles within certain codes will be deemed shortage occupations, particularly in health and social care, engineering and digital technology occupations, where previously some roles were only deemed shortage occupations if the sponsoring business was a "qualifying company".
  • The Statement of Changes confirms that the "qualifying company" criteria has been removed. For example, a company that employs between 20 and 250 employees and is not more than 25% owned by a company which has one or more other establishments in the United Kingdom and one of those established employs more than 250 employees.
  • The amended SoL will allow employers to more easily hire foreign workers to meet labor shortage demands across a wider range of roles, particularly in the health and social care, engineering and digital technology sector which employers have reported they find difficult to fill.
  • There may be an influx of SoL jobs being recruited for under the Tier 2 General RCoS route, thus increasing the number applications processed in the annual cap.
  • As priority is given to jobs on the SoL, this may in turn impact smaller organization with lower salary due to the points awarded to them if the cap is reached.
Absences from Employment
  • Tier 2 migrants will not be penalised if they are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action.
  • A Tier 2 migrant's application for ILR will not be refused if absences for the above reasons cause their salary to fall below the applicable minimum salary threshold.
  • This change is due to take effect October 1, 2019.
  • This will allow impacted migrants to still be eligible to apply for ILR if there is a reduction in salary as a result of a permitted reason.
Tier 1
Closure of Tier 1 (Entrepreneur) category for new applications
  • The Tier 1 (Entrepreneur) category is now closed to most initial applications but remains open to existing Tier 1 (Graduate Entrepreneur) and Tier 1 (Entrepreneur) migrants.
  • Migrants that wish to set up or run a business in the United Kingdom should consider applying for an Innovator visa or Start-up visa. Existing Tier 1 (Graduate Entrepreneur) and Tier 1 (Entrepreneur) migrants can continue to extend their visa and potentially apply for settlement in this category.
Tier 1 (Investor) – Investment criteria amended for extension and settlement applications
  • Applicants under the pre-March 29, 2019 rules can make extension or settlement applications, provided they move their qualifying investments out of UK government bonds before either April 6, 2023 in the case of extension applications, or April 6, 2025 in the case of settlement applications.
  • Investors who do not meet those deadlines can apply for further extensions and settlement if they meet certain conditions; i.e. invest the full GBP 2 million in qualifying investments before they apply for further extensions and maintain the full GBP 2 million investment for the qualifying period required for settlement.
  • Individuals in this category who wish to extend or settle in the United Kingdom are advised to plan to ensure their investments are compliant with the Rules to enable them to further extend in this category and qualify for settlement.

Start-up and Innovator

Business activities can be started earlier due to changes in rules relating to Tier 4 (General) students
  • Individuals who hold a Tier 4 (General) visa who have submitted a Start-up application with the support of an endorsing body may commence their business activities while their application is pending.
  • Eligible applicants can take advantage of this rule change to begin working on their business activities as soon as they have submitted their Start-up visa application.
24-month 'checkpoint' requirement removed for Start-up category
  • A checkpoint between an applicant and their endorsing body will not be required after 24 months in the Start-up category, only in the Innovator category. Checkpoints refer to contact between the endorsing body and the applicant at set time frames during which the endorsing body monitors the applicant's progress and determines if they still meet the requirements or if endorsement needs to be withdrawn or reported.
  • The removal of the mandatory 24-month checkpoint for the Start-up category will save time and reduce the monitoring burden on the endorsing body. It will also make the process more convenient for both the applicant and the endorsing body. However, applicants and endorsing bodies for the Innovator category will not benefit from the relaxed rules.

Background

UK Immigration Rules are often changed multiple times a year via a Statement of Changes, which lists the amendments that will be incorporated into updated Immigration Rules on the specified implementation date.

This new Statement of Changes largely incorporates the Migration Advisory Committee's recommendations on the SoL, which was expected following the Home Office's announcement that they accept the recommendations in full earlier this year.

Looking ahead

  • Preparation for a no-deal Brexit. Although Parliament has passed a law to attempt to block a no-deal Brexit, the default position is that the United Kingdom will leave the European Union on October 31, 2019 without a deal unless a further extension is approved by the European Union or a deal is agreed before then. Fragomen's advice therefore remains to ensure that businesses have contingency plans in place for a no-deal Brexit on October 31, 2019.
  • SoL re-review likely. It is likely that once the reforms to the United Kingdom's new immigration system become clearer in 2021, the role of the SoL will be reviewed again. The new immigration system is expected to remove the annual cap on Tier 2 (General) migrants as well as the requirement for employers to hold a Resident Labour Market Test, therefore the SoL is unlikely to remain as relevant or beneficial.
  • Ongoing MAC reviews. The MAC is also reviewing salary thresholds and the Australian immigration system and is expected to report back in January 2020 with recommendations.
  • Relaxed post-study work rules forthcoming. The Home Office will also re-introduce a two-year post-study work visa for Tier 4 students who graduate from a qualifying degree course, which was removed by previous governments due to its more generous provisions. The reintroduction of this two-year provision for graduates is also more generous than the White Paper on the future immigration system and demonstrates the current government's relatively liberal approach to immigration in contrast to the restrictive rules imposed by the previous Prime Minister.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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