Changes to the Points Based System

The Government has announced a number of changes to the Points Based System (PBS) that were laid before Parliament today, 22 November 2012, and the majority of which come into force on 13 December 2012.

Intra Company Transfers

Tier 2 (Intra Company Transfer) migrants can stay in the UK for a maximum of five years in the long term staff sub-category.  The category does not lead to settlement and a 12 month ‘cooling-off’ period applies before migrants can return.  A change is being made to extend the maximum stay from five years to nine years for very senior staff earning £150,000 a year or more.  The nine year maximum is designed to meet business needs while maintaining the temporary nature of the category, by preventing applicants from qualifying for settlement on the basis of long residency. The rules remain unchanged for Intra Company Transferees earning less than £150,000 a year.

Cooling-off Period

A change is also being introduced to enable some flexibility in the way that the start of the cooling-off period is determined when it is clear that the applicant has left the UK before the expiry of their leave to remain.  This will mean that the cooling-off period can start from the earliest date that the applicant can demonstrate that they left the UK, rather than the date of expiry or curtailment of leave.  The cooling-off period remains unchanged at 12 months.  The onus will be on the migrant to demonstrate that they have left, and remained outside, the UK earlier than the expiry of their leave.  The UKBA will publish guidance on acceptable evidence.  Sponsors are still required to report if the migrant leaves their employment earlier than the end date on their Certificate of Sponsorship.

Permissible absences from the UK for work related settlement

Tier 2 (General) migrants, Work Permit holders and Tier 1 (General) migrants can apply for Indefinite Leave to Remain (ILR) after five years in the UK.  Until now there has been some inconsistency in the approach applied by the UKBA in respect of absences from the UK over the qualifying period.  Absences of up to 180 days in each of the calendar periods of 12 months for the qualifying period of continuous residence will now be permitted.  Absences must be for a reason that is consistent with the person’s employment or economic activity – this could include business trips, conferences, research, periods of annual leave – or for serious or compelling reasons, such as the serious illness of a close relative.  This will bring the absence allowance in line with the current position for Tier 1 Investors and Tier 1 Entrepreneurs.

Supplementary employment

Migrants in Tier 2 may take supplementary employment of up to 20 hours a week in addition to the employment that they are being sponsored for, provided it is in the same occupation and at the same professional level.  A change is being made so that these migrants can also take up supplementary employment in a shortage occupation, even if this is a different occupation to the one they are being sponsored to work in.

Tier 1 (Entrepreneur)

From 13 December 2012 a number of minor amendments will be made to the Entrepreneur route.  These include:

  • Providing for funding of £50,000 to be relied on if this funding is obtained from Devolved Administration Departments;
  • Lowering the English language requirement to level B1 (intermediate), in line with the requirement in Tier 2 (General);
  • No longer permitting Tier 4 migrants to switch into Tier 2 unless they have £50,000 funding from specified sources;
  • A clarification is being made to confirm that points are not awarded for funds which have been promised to other individuals, except where they are applying under the specific provision for Entrepreneurial teams.

Tier 1 (Investor)

A change will be made on 13 December 2012 to allow a Tier 1 (Investor) migrant’s leave to be curtailed if they fail to maintain the required level of investment for the duration of their leave.

Amendments are being made to state explicitly that points will not be awarded for investments against which applicants have taken out loans, or investments that are held in off-shore custody.  This is the intention of the current rules, which aim to ensure that investments are under the applicants control and are genuinely benefitting the UK.

These are the ‘headline’ changes.  A full outline of the announcement can be found at the following link: