General Immigration

Key areas of work undertaken include:

Indefinite leave to remain - Long residence

Indefinite Leave to Remain can be granted under the Immigration Rules after a period of 10 years continuous lawful residence. Continuous residence means residence in the UK for an unbroken period. A period is not considered to have been broken where an applicant is absent from the UK for a period of 6 months or less at any one time provided that the applicant has existing leave to enter or remain upon their departure and return. A period is considered to have been broken if the applicant has been removed or deported or left the UK having been refused leave to enter or remain. A period is also considered broken if the applicant has been convicted of an offence and was sentenced to a period of imprisonment or has spent a total of more than 18 months absent from the UK during the period. There must be no reason why granting leave is against the public good. The applicant must fulfil the Knowledge of language and life in the UK requirement.

Visitors

There are different categories and sub categories of visitors. These can be found in Part 2 of the Immigration Rules.

• Frequent Visitors: Complexity may arise with general visitors, particularly those who visit the UK frequently. Visitors cannot live in the UK on a continuous basis even if this is punctuated by short absences from the UK to avoid overstaying. Therefore, those who travel to the UK frequently as general visitors may encounter questioning on whether this amounts to genuine residence.
• Private Medical Treatment: Visitors for private medical treatment are granted an initial period of leave for 6 months or 11 months, where the visitor’s medical practitioner has confirmed that the period of treatment is likely to exceed six months. They will need to show that there is a finite period to their treatment. The case law indicates that finite may well be a substantive period of time, even years, but the proposed treatment must have a proposed end point.
• Marriage or Civil Partnership: General visitors must not intend to marry or form a civil partnership in the UK. If a visitor intends to marry or form a civil partnership while in the UK but does not intend to settle in the UK, they must either apply for a visa as a partner under Appendix FM or a marriage visa.
• Child at School: The parent of a child at school is a sub category of visitors. This allows a parent of a child studying in the UK to stay in the UK until the child reaches 12 years of age.

Tier 1 Investor

The Tier 1 (Investor) category is for high net worth individuals making a substantial financial investment in the UK. Applicants under this route are not required to show any English language ability. There are also no maintenance requirements. Those applying for the first time as Tier 1 (Investor) from 6 November 2014 must have money of his own under their control held in a regulated financial institution and disposable in the UK amounting to not less than £2 million.

Specified documents must be provided as evidence of investment.

The applicant must invest not less than £2 million in the UK by way of UK government bonds, share capital or loan capital in active and trading UK registered companies within 3 months of entry, the grant of entry clearance or the grant of leave to remain.

A Tier 1 (Investor) is generally entitled to apply for settlement after spending a continuous period of 5 years lawfully in the UK as a Tier 1 (Investor), with absences from the UK of no more than 180 days in any 12 calendar months during the period. Fast track routes to settlement for significant investors have been created whereby an investment of certain amounts will qualify the investor for settlement sooner than normal.

Tier 1 Entrepreneur

Applicants can apply for a Tier 1 Entrepreneur visa to set up or run a business in the UK if they meet the eligibility requirements. There are different eligibility requirement depending on whether they have access to £50,000 or to £200,000 investment funds. They must also meet the English language requirement and score points for the maintenance requirement. If successful, applicants will initially be granted a visa for a maximum of 3 years and 4 months. They may apply to extend their stay for another 2 years. They may be able to apply for settlement after they have been in the UK for 5 years.

Applicants must demonstrate that they genuinely intend and are able to establish a business in the UK. Applicants could be asked to provide further information or be invited for an interview.

Applicants can apply to extend their visa under this category if they have a) invested not less than £200,000 or £50,000 in cash directly into one or more businesses in the UK; b)registered as a director or self-employed no more than 6 months after they have been given permission to stay or enter the UK; c) proof that they are registered as self-employed or as a director no earlier than 3 months before the date of application; and d) have created the equivalent of at least two full time jobs for persons settled in the UK.

Two applicants can claim points for the same investment and business activity. Each member of the team may work in the UK as a Tier 1 (Entrepreneur). Each member of the team may work in the UK as a Tier 1 ( Entrepreneur).

Applicants granted permission to stay under this route are not allowed to take employment other than working for the business they have established. They are also not allowed to claim any public funds.

Tier 2 Skilled Worker

Tier 2 allows employers to recruit individuals from outside the UK and the European Union to fill a particular job that cannot be filled by a British or EEA worker. Those wishing to apply under any of the Tier 2 categories will have to have a job offer from a sponsor licensed by the Home Office. To be eligible under Tier 2, an applicant will need to have a job offer, a certificate of sponsorship from a licensed sponsor and score enough points in attributes, English language skills and maintenance. There are four subs categories under Tier 2: Tier 2 (General), Tier 2 (Intra Company Transfer), Tier 2 (Sportsperson) and Tier 2 (Minister of Religion).

An annual quota applies to Tier 2 (General) for new entrants applying for entry clearance or leave to enter from abroad. The quota is divided into monthly allocations set out in the Immigration Rules. In general, points will only be awarded under Tier 2 (General) for jobs that pass the Resident Labour Market Test. The Resident Labour Market Test exemption applies to applicants whose job offer is in the shortage occupation, those who have or have last been granted leave as a Tier 1 (Post Study Work) or Tier 4 Migrants who have graduated whilst in the UK, and to those whose salary is above a certain threshold. Applicants for entry clearance under Tier 2 (General) must not generally have had entry clearance or leave to remain as a Tier 2 migrant at any time during the 12 months immediately before the date of application. A continuous and lawful period of five years in the UK must be completed before an application for settlement is possible. Those not meeting the requirements for settlement to be granted will be able to spend a maximum period of 6 years in the UK.

The Tier 2 (Intra Company Transfer) category is for migrants who are already working for a company in another county and are transferring to a position in the UK with the same company. There are 4 sub categories - Tier 2 (ICT) Skill Transfer, Tier 2 (ICT) Short Term Staff, Tier 2 (ICT) Graduate Trainee and Tier 2 (ICT) Long Term Staff. Tier 2 (ICT) Long Term Staff sub category will be granted leave up to 3 years with the possibility of extending for another 2 years. They will generally not be able to extend their stay beyond 5 years and they will not be able to re-apply to return to the UK under the Intra Company Transfer category until 12 months after their last leave as an Intra Company Transfer expired or 12 months after they left the UK, whichever is sooner.

Tier 4 Students

There are two categories of students under Tier 4:

Tier 4 (General) Student - This category is for students coming to the UK for post 16 education. A Tier 4 (General) student must be at least 16 years old. See Tier 4 (General) student below for more details.

Tier 4 (Child) Student - This category is for children between 4 and 17 years old coming to the UK for their education. Tier 4 (Child) Students between 4 and 15 years can only be educated at independent fee paying school. See Tier 4 (Child) student below for more details.

If applying in the UK, applicants are only allowed to switch into Tier 4 if they are in the UK in one of the specified immigration categories.

All Tier 4 students must score points for attributes and maintenance. To score points for attributes, a Tier 4 student must have a valid confirmation of acceptance of studies (CAS) from their sponsors. From April 2012, all sponsors for Tier 4 will have to be highly trusted sponsors.

Tier 4 (General) students:

Tier 4 (General) students must, in addition, fulfil the English Language requirement. The level of English a student is required to fulfil and how the sponsor is allowed to assess them will depend upon the type of institution and the level of course undertaken. A Tier 4 (General) student may sometimes be asked to attend an interview with the Home Office, either as part of their Tier 4 application overseas, or when applying for leave to remain in the UK. If a Tier 4 (General) student is required to attend an interview and cannot show their English language ability at the required level, their application will be refused.

Tier 4 (General) students can spend a maximum of 3 years studying a below degree course. If the course is at degree level or above, the maximum time is 5 years. For those studying for PhD at a Higher Education Institution, the maximum time spent in the UK as a Tier 4 (General) student cannot exceed 8 years.

Tier 4 (General) students undertaking a course at degree level or above are allowed employment during term time of no more than 20 hours per week, and employment of any duration during vacations. Those undertaking a course at below degree level at certain colleges are permitted employment during term time of no more than 10 hours per week and employment of any duration during vacations.

Tier 4 (Child) students:

In addition to scoring points for attributes and maintenance, Tier 4 (Child) students must have parental consent to take the course and for their care arrangements in the UK. If a foster carer or a relative other than the applicant’s parent will be responsible for their care, they must provide specified documents to show that the applicant’s care arrangements meet the requirements published by the Home Office.

Differential Arrangements for Tier 4 Students from low risk countries:

Tier 4 students from designated low risk countries under the Immigration Rules are entitled to differential arrangements. To qualify, applicants must be sponsored by a highly trusted sponsor. Applicants who meet the requirements of the arrangements will not normally have to submit:

• Certificate or documents used by the Tier 4 sponsor to access academic ability
• English language tests or documents used by Tier 4 sponsors or to assess English language ability
• Documentary Evidence of their funds

Tier 5 Youth Mobility

This scheme replaced the working holiday maker scheme. It is open to nationals of certain countries. Entry Clearance is mandatory and there is no facility to extend leave or switch into Tier 5 (Youth Mobility). An applicant must be 18 or over when his or her entry clearance becomes valid for use and under the age of 31 on the date his or her application is made. The applicant must fulfil the maintenance requirement. Further, the applicant must not have previously spent time in the UK as a working holiday maker or a Tier 5 (Youth Mobility Scheme) Temporary Migrant. If all the requirements are met, entry clearance will be granted for a period of 2 years. A Tier 5 Youth Mobility migrant can study, work in most jobs, or be self-employed as long as the migrant has no premises, the total value of any equipment used in the business does not exceed £5,000 and the migrant has no employees.

Tier 5 Temporary Workers

This category is for those coming to work temporarily in the UK. There are 5 sub-categories: (i) Creative and Sporting, (ii) Charity Worker, (iii) Religious, (iv) Government Authorised Exchange, and (v) International Agreement, including private servants in diplomatic households. Entry Clearance will usually be required for Tier 5 Temporary Workers. The principle requirement for Tier 5 (Temporary Worker) is the obtaining of a Certificate of Sponsorship. Under each of the different temporary worker categories, different types of sponsors are identified. Unlike Tier 2, the sponsor need not necessarily be the migrant’s employer. However, the sponsor must apply to join the register of sponsors. There is a maintenance requirement for Tier 5 (Temporary Worker). If the migrant’s sponsor is an A rated sponsor, they can confirm that the migrant will not claim public funds during the period of leave as a Tier 5 (Temporary Worker).