Immigration Update

22nd October 2010

The Government continues to introduce and implement a range of measures to ensure that immigration is “properly controlled for the benefit of the UK”. Arguably, the result will be that in the immediate future months it will become increasingly difficult to secure a visa to live and work in the UK, not only for those who fall under economic migration categories (such as the self sponsored Tier 1 or the employer sponsored Tier 2 categories) but also as far afield as family reunion between British nationals and their non-British spouses. Seven separate statements of changes to the Immigration Rules have been adopted in 2010, rather remarkably five of the seven have been adopted in the short time since the advent of the coalition government. It appears that the UK Immigration regime will continue to be tweaked, revised and ultimately restricted for some time to come.

That’s all Folks – Tier 1 (General) cap reached

On 20 October 2010, the UK Border Agency announced that the interim cap in respect of Tier 1 (General) had been reached for the month of October and that migrant applicants wishing to make applications to enter the UK after that date will not be issued a visa until 1 November 2010. The UK Border Agency has also confirmed that, with each month between now and 1 April 2011 (when a permanent cap will be introduced) there will only be 600 visas available for issue in the Tier 1 (General) scheme, worldwide. Applicants are still able to make their applications between 20 October and 1 November, and their applications will be ‘held’ until the visas for the month of November are released. Simple mathematics would indicate that this could be the start of a severe restriction within the Tier 1 (General) regime. If 600 visas were issued by 20 October, and applicants are able to continue to submit applications, it would appear that a proportion of the 600 visas allocated for November 2010 will already be taken at the start of the month by those applicants who have submitted applications between 20 October and 31 October. Now that the cap has been reached for one month, it seems very possible that the cap will continue to be reached, by as early as mid-month in the future, with associated delays to those wishing to enter the UK under the scheme.

Legal Challenges to the immigration caps

As the interim cap begins to bite in respect of Tier 1, we are aware of two separate challenges to the caps for both Tiers 1 and 2. The first has been brought by the Joint Council for the Welfare of Immigrants and concerns the way in which the immigration caps were introduced. The second has been brought by some 150 companies who were given an allocation for Tier 2 migration of zero between now and April 2011. The interim caps for Tiers 1 and 2 were introduced by statements of changes to the Immigration Rules and, ignoring the convention that any changes should be laid before Parliament for at least a 21 day period before coming into force, the government gave the changes immediate effect.

It seems very likely that the challenges will continue, especially as these changes were made so soon after the Court of Appeal’s judgment in the case Pankina and other v Secretary of State for the Home Department [2010] EWCA Civ 719, where it was found that the Secretary of State can only make law with the authority of Parliament, i.e. by making a statement of changes and giving Parliament a period of 40 days in which to object to the changes being implemented.

In associated news, it seems likely that the mechanics of the permanent cap, scheduled to be implemented on 1 April 2011, will be announced by the close of 2010. It will be of continued interest to see how the current legal challenges ultimately affect the mechanics of the permanent cap, as it is announced later in the year.

Further roll out of Biometric Identification Cards

From 14 December 2010, highly skilled workers, temporary workers and their dependants successfully applying to extend their stay from within the UK, under Tiers 1 and 5 of the Points Based System, will be required to submit their biometric details in person before being granted a Biometric Residence Permit. The Biometric Residence Permit is a residence permit which holds a migrant’s biographic details (name, date and place of birth) and biometric features (facial image and fingerprints), and shows his/her immigration status and entitlements while he/she remains in the UK.

Biometric Residence Permits replace vignettes (the stickers used to confirm immigration status) and other paper based immigration status documents with a secure, polycarbonate identity card. It is clear that this will result in delays to the process of applying for further leave to remain, as applicants will be expected to attend a pre-scheduled (and highly prized) appointment with the UK Border Agency to submit their biometric details. Only upon submission of biometric details will an application be considered and, once approved, applicants can expect a wait of up to ten working days to receive their Biometric Residence Permit.

Increased English language requirements for those joining a British or settled spouse

The most recent statement of changes to the Immigration Rules has introduced an English language requirement for those individuals who wish to live in the UK as the spouse of a British national. From 29 November 2010, an applicant who applies for entry clearance or for leave to remain as a spouse or partner of a British national or a person settled in the UK will be required to demonstrate English language set at level A1 of the Common European Framework of Reference. The Government’s rationale is clear, it believes that speaking English should be a pre-requisite for those individuals wishing to settle in the UK.

Please contact Immigration@magrath.co.uk for further detail in respect of any of these issues.