12. Further Advice
The rules governing the right of persons who are not British Citizens to work in the UK are complex. They are set out in various pieces of legislation including the Immigration Act 1971, the Asylum & Immigration Act 1996, the Immigration & Asylum Act 1999, the Nationality, Immigration & Asylum Act 2002, the Asylum & Immigration (Treatment of Claimants, etc) Act 2004, the Accession (Immigration and Worker Registration) Regulations 2004, the Immigration, Asylum & Nationality Act 2006, the Accession (Immigration and Worker Authorisation) Regulations 2006 and the Immigration Rules made under the Immigration Act 1971 including those establishing the Points Based System (PBS). Detailed guidance on the four Tiers of the five Tiers of the PBS which are either in force now or are being brought in to force, can be found on the following Home Office website: www.ukba.homeoffice.gov.uk.
Some overseas nationals are able to work in the UK without being sponsored; others need to enter the UK under Tiers 2 or 4 of the PBS having been sponsored by a British employer before commencing employment.
Some people with limited leave to remain in the UK (LLR) may alter their immigration status so as to allow them to work once approval has been granted by the Home Office (see below paragraph on switching)
The Immigration Rules set out a list of countries whose nationals are visa nationals and who require a visa to come to the UK in any capacity. Non-visa nationals only need a visa if the Immigration Rules require it (see further below). This form of visa is known as “Entry Clearance”.
Visa nationals require Entry Clearance (prior consent given at a British Diplomatic Post overseas) to enter the UK in all circumstances. All other nationals coming here for any purpose of longer than 6 months will also need to apply for Entry Clearance.
The Home Office have recently extended the list of visa nationals countries to include principally, South Africa and Venezuela.
i) British Citizens and returning residents
British Citizens and returning residents (overseas nationals with indefinite leave to enter or remain endorsed in their passport) can take employment without restriction. Also, people granted exceptional, humanitarian or discretionary leave (permission) to remain in this country, are entitled to work without restriction.
ii) Asylum seekers
Asylum seekers (people who have made asylum applications and are waiting for a decision) can no longer apply to the Home Office for permission to work after their asylum applications have been outstanding for 6 months though some may still be able to work as a result of previous permission. Asylum-seekers used to be issued with a document called a standard acknowledgement letter (SAL), on which permission was endorsed and which could be shown as evidence of entitlement to work. Asylum-seekers are now given an Application Registration Card (ARC). Alternatively, an asylum seeker may have a document called an IS96 granting him or herself what is called “Temporary Admission” (T/A), which is also evidence of entitlement to work unless it states that the asylum applicant is not entitled to enter into employment. Those granted T/A are now almost always prohibited from working.
Under the terms of an EU Directive, asylum-seekers whose claims have not been decided within 12 months may ask for permission to work. However, the Home Office say no permission to become self-employed, set up in business or to pursue professional activity will be granted. Such permission, if granted, will only allow the asylum-seeker to work until his or her application is finally determined.
iii) Other people
There are many other people with LLR who may be free to work or engage in business without seeking permission to do so from the Home Office. Examples are: Spouses, civil or unmarried partners of British citizens or long-term students and family members of most people admitted to the UK on a long-term basis.
The BWB immigration team has decades of working experience in advising on all aspects of family migration, for both adults and minors.
iv) European Economic Area (EEA) Nationals and their family members
• Which countries are in the European Economic Area?
The European Economic Area (EEA) is made up of Austria , Belgium , Bulgaria, Denmark , Finland , France , Germany , Greece , Ireland , Italy , Luxembourg , Netherlands , Portugal , Romania, Spain , Sweden , UK , Cyprus , Czech Republic , Estonia , Hungary , Latvia , Lithuania , Malta , Poland , Slovak Republic , Slovenia , Iceland , Liechtenstein and Norway . Eight of the countries which joined the European Union on the 1st May 2004 (ie. Poland, Lithuania, Estonia, Latvia, Slovenia, Slovakia , Hungary and Czech Republic) are subject to the Worker Registration Scheme during the first 12 months of their stay here. Romania and Bulgaria joined the EU on 1st January 2007 (see below). Switzerland is not a member of the EEA but its nationals are treated as if they were.
Nationals of EEA countries (and Switzerland) have the same freedom of movement rights as nationals of European Union (EU) countries. These rights enable EEA nationals to work, set up in business, be self employed or provide services in another EEA country. No permission is required to take employment and no formal time limit can be put on the stay of an EEA national, provided he or she is seeking to exercise those rights.
The Citizens’ Directive 2004/38 greatly enhanced the rights of EEA nationals and their families. It came into force in the UK on 30 April 2006. However, the UK has implemented it very inadequately and specialist advice especially in regard to the admission of non-EEA national family members from outside the EEA is now more necessary than ever.
• The Worker Registration Scheme
The A8 countries (ie. Poland , Lithuania , Estonia , Latvia , Slovenia , Slovakia , Hungary and CzechRepublic ) are subject to the Worker Registration Scheme. A-8 nationals need to register if they plan to work for more than one month for an employer in the UK. The scheme only restricts workers not business or self-employed people or the self-sufficient. Restrictions under the scheme end after 12 months’ uninterrupted employment. After 12 months work if the worker is still in employment he or she will be entitled to an EEA residence permit. An employer can be fined a maximum of £5,000 (per illegal worker) if they continue to employ an unregistered non-exempt A8 worker after one month and have not retained a copy of their Home Office application form and do not receive a certificate of registration.
• Accession Worker Cards for the “A-2 countries”
The admission of Romania and Bulgaria into the EU took place on 1st January 2007 when visa restrictions were removed and citizens of these countries are now entitled to admission for an initial period of 3 months. Access to employment is restricted by the UK government during a transitional period.
Those entering employment need approval from the Home Office at present. Once granted they can apply for an Accession Worker Card. An employer can be fined a maximum of £5,000 per illegal worker for employing a non-exempt Bulgarian or Romanian who does not have permission to undertake employment.
The rights of self-employed A-2 nationals engaging in business are in no way restricted and are the same as those possessed by other EEA nationals. A-2 nationals are also free to work as “posted workers”.
Bulgarian and Romanian students may work for up to 20 hours a week during term time and full time during vacations. You must first obtain a registration certificate. Students following a vocational training course who work as part of that training may work for more than 20 hours per week.
• EEA Family Members
Family members of EEA nationals are entitled to accompany the EEA national and have the same rights to work as the EEA national to work, set up in business, be self employed or provide services. These rights will only be relevant where the family member is not an EEA national him or herself. What is called an “EEA family permit” should be obtained by the family member(s) before travelling to the UK though permission can be obtained once here. There are now severe restrictions on marriage by non EEA nationals with permission to stay for 6 months or less to EEA nationals. Please see the paragraph on switching. Family members are defined as the spouse, children and grandchildren up to the age of 21. Children over 21 who are still dependant, dependant parents, grandparents and great grandparents and other relatives who had been living under the same roof or were dependant on the EEA national worker will also qualify. The definition of the family of an A-8 national enrolled under the Worker Registration Scheme is slightly narrower than that for other EEA nationals.
The Home Office have in recent years drawn a distinction between rights of non-EEA family members of EEA citizens who reside in the EU and those who reside outside the EU. This (in our view unlawful) distinction has been the subject of extensive litigation and our immigration team are well versed in the complex issues involved.
• Documentation once in the UK
It is advisable for the EEA national and his or her family members who arrive with an EEA family permit to apply for a residence permit and residence document. It is not necessary to have a residence permit or residence document to establish an entitlement to work, be in business, self employment or in receipt of services but it is evidence of a right of residence in the UK and is the easiest way to prove the entitlement. The duration of the validity of a residence permit does not limit the length of an EEA national’s stay in the UK. The Home Office handling of applications for residence documents by EEA nationals and family is highly unsatisfactory and subject to excessive delay.
These regulations are unduly complex. There are some exemptions, for example for posted workers. Please do not hesitate to contact us for up to date advice.
v) Commonwealth Citizens
In general, Commonwealth Citizens are subject to the same requirements in relation to permission to work as other overseas nationals. However, there is one important category under the Immigration Rules which applies specifically to Commonwealth citizens and entitles them to work in this country without being sponsored under Tier 2 of the PBS, which is:
•Commonwealth Citizens with UK ancestry
• Who qualifies?
A Commonwealth citizen aged 17 or over with a British born grandparent can come to the UK to work or to seek work. It will be necessary to prove that he or she has a UK born grandparent by providing that grandparent’s birth certificate and all the relevant marriage and birth certificates showing the relationship between the grandparent and the worker. It is necessary to show that the person will be able to support and accommodate him or herself without recourse to public funds and is able to work and intends to take or seek employment. It is not necessary for a Commonwealth citizen seeking admission in this category to have a job offer. However a person without a firm offer of employment will need to show that he or she has sufficient funds to maintain and accommodate him or herself. Employment includes self-employment for the purposes of the Immigration Rules. The grandparent must be the applicant’s blood grandparent or grandparent by reason of an adoption recognised by the laws of the UK relating to adoption.
• How does a Commonwealth Citizen with UK ancestry apply for permission?
Persons seeking entry under this provision must have Entry Clearance. Those with permission to stay in another immigration category may not alter their status into this category. Leave to enter or remain will be given initially for a 5-year period. At the end of that period, an application for indefinite leave to remain can be made. The spouse, civil partner or unmarried partner and children under 18 of a Commonwealth citizen coming to the UK on the basis of UK ancestry do not have employment restrictions placed upon them and are therefore also able to work.
The Home Office would like to abolish any special rights for Commonwealth citizens but, as at the time of writing, they have failed to remove the special status of Commonwealth citizens with UK born grandparents.
From, as yet, an unspecified date in March 2009, students other than student visitors will need to be sponsored by a recognised educational body under Tier 4 of the PBS. For the moment, students are admissible under paragraph 57 onwards of the Immigration Rule HC395. Visitors are now prohibited from engaging in study.
• What are the current requirements (pre March 2009) you need to meet to enter as a student?
You will need to have been accepted onto a course of study by an organisation that is on the Register of Education and Training providers (now run by the Department for Innovation, Universities & Skills). The Register of Education and Training Providers is a list of colleges including universities and private education providers in the UK. The purpose of the Register is to help the Home Office tackle immigration abuse in the education sector. All colleges that want to recruit overseas students need to appear on the Register. The Home Office will only grant student visas to people intending to study at an institution on the Register.
Students must also show that they will be able to maintain and accommodate themselves without having to work or have recourse to public funds.
• Can a student work in the UK?
Since 21 June 1999 a student studying in the UK has been allowed to work without obtaining any permission whatsoever, provided the student’s passport is not endorsed with an absolute prohibition (as opposed to a restriction) on employment. Most long term student’s passports will only be endorsed with a restriction on their freedom to take employment.
• How much and what kind of work can a student do?
A student can work a maximum of 20 hours per week during term time and full time during vacation time. The student is not permitted to be pursuing a career by filling a permanent full time vacancy. Further, a student is not permitted to engage in business, self employment or provide services as a professional sports person or entertainer. There is an exception to the maximum of 20 hours per week during term time where the student is carrying out a work placement as part of their studies and the education institution agrees. Normally a student coming to the UK for under 6 months will have an absolute prohibition placed on employment stamped in their passport, but they can ask to have only a restriction applied.
• Dependants of a student
A dependant of a student who is given leave to enter or remain for 12 months will have no restriction on their employment or engaging in business. Where a student is given less than 12 months leave to enter or remain, the dependant can request freedom to work and will normally be given it.
• Passport stamps
The passport stamps that a student has are not necessarily clear. They should always be read carefully. It may not be possible to tell from a passport stamp whether someone has permission to stay as a student or not.
• School students.
The ‘Child Student’ visa under Tier 4 applies to children between the ages of 4 and 17, who are applying to attend independent fee paying schools on a full time basis.
The course must be taught in accordance with the National Curriculum, the National Qualification Framework or be accepted as of equivalent academic status by Ofsted.
The child must obtain 40 points to be granted the visa. A Confirmation of Acceptance for Studies is worth 30 points and passing the
appropriatemaintenance and funds test awards the final 10 points required. The maintenance and funds test varies according to the type of school, for
example – if a child will study and board at a residential independent school, the Home Office will require evidence of sufficient funds to pay school
fees for a year plus any additional accommodation fees required by the school.
Parent carers will be classed as special visitors. They will not be allowed to work whilst in the UK to care for their child and will qualify for a maximum period of leave of 12 months.
• Sponsorship under Tier 4 of the PBS after March 2009
If you want to apply to come to the UK as a student, you will need to pass a points-based assessment and score 40 points. 30 points is awarded for a visa letter from a registered educational provider (your sponsor) and you will gain 10 points if you can show you have enough finances to cover your course fees and monthly living expenses for up to 12 months (known as maintenance). The maintenance you are required to show varies, specific sums of money must be shown for courses of a particular length and location within the UK.
Educational providers will need to be registered on the UKBA’s Register of Approved Sponsors which will replace the Register of Education and Training Providers. To qualify for the Register of Approved Sponsors all private education and training providers must be accredited by a UKBA approved accreditation body, to ensure that it is providing education and training to a recognised standard.
Under the new Tier 4, students are still able to work in accordance with the Immigration rules as under pre-tier 4 arrangements (detailed above).
• How to enter the UK as a student
The educational provider (which must be licensed under the PBS) will need to provide the prospective student with a ‘confirmation of acceptance for studies’. This, along with evidence of maintenance, will be submitted as part of the visa application to enter the UK as a student prior to travelling to the UK.
• Can I remain after I have finished my studies?
Students may remain in the UK after they have finished their studies if they successfully apply to remain as unmarried partners, civil partners or spouses of persons settled and present in the UK. Students may also switch into economic categories in varying circumstances provided for under Tiers 1, 2 and 5 of the PBS. These are described in detail later. Of particular relevance is Tier 1 (Post Study Work), which allows international students to work in the UK without having a sponsor under Tiers 2 or 5. Those granted leave under this tier free to enter employment, be self-employed or engage in business as they wish. They may then switch in to another tier of the PBS should they wish to remain further.
You can apply under the post-study worker category now if you are:
• in the UK with permission to stay under the Science and Engineering Graduates Scheme, International Graduates Scheme or Fresh Talent: Working in Scotland Scheme; or
• in the UK as a student, which includes students, student nurses, students re-sitting examinations, and students writing up a thesis, and want to switch into the post-study worker category.
You must pass a points-based assessment and score:
• 75 points for your attributes, which are a UK qualification, study at a UK institution, your immigration status during UK study and/or research, and the date of award of the qualification; and
• 10 points for English language; and
• 10 points for available maintenance (funds).
vii) Other categories permitting employment in the UK which are not covered by the PBS
•Overseas representatives – These are established employees of overseas businesses who are sent to the UK to establish a branch or subsidiary where the overseas principal has no other substantial presence in the UK. Entry clearance is compulsory under the Immigration Rules.
• There are also special provisions for overseas journalists, domestic servants accompanying employers and overseas government employees.
One of our specialist areas is providing advice to domestic workers and their employers.
viii) Ministers of Religion, Missionaries and members of a Religious Order and other Religious Workers
These special categories of “permit free employment” have now been abolished. Ministers of Religion, Missionaries and members of a Religious Order are now accommodated within Tier 2 of the PBS, which gives them access to eventual settlement. Religious workers in non-pastoral roles and visiting religious workers and other religious workers and those previously covered by the charity volunteers concession may be sponsored under Tier 5 of the PBS. There are limitations as to how long those admitted under Tier 5 may stay in the UK.
ix) Business Visitors
They may be economically active. They first need to meet the requirements of the immigration rules relating to visitors and then if business visitors, they must also meet the additional requirements as set out below (there are separate categories for student and marriage visitors).
Visitors – Non – EEA nationals and/or members of their family are able to travel freely to the UK if:
• they only intend to visit for up to six months;
• have enough money to support themselves;
• can meet the cost of their return journey; and
• do not intend to study or marry.
Visa nationals must obtain a visa before they travel to the UK even if they intend to only visit the UK. The Home Office website contains the list of the countries which fall within these visa requirements.
Business Visitors – This a new category of visitors, where as above, non-visa nationals are able to come to the UK without a visa as a business visitor for up to six months. Multiple entry visas are available for business visitors for six months, and one, two, five and 10 years.In addition to the general visitor requirements, Business Visitors must show they:
• are based abroad and do not intend to move to the UK;
• receive their pay abroad; and
• are to carry out a “permissible activity” as defined in the Immigration Rules.
Business visitors are allowed to undertake permissible activities for example, attending meetings and conferences, arranging deals or negotiating contracts. They may be secondees from an overseas company which has a contract with a UK company provided they are paid by the overseas company. They cannot undertake paid or unpaid employment, produce goods or provide services in the UK or sell goods and services to members of the public.
Dependants are also able to join the business visitor for the period of their stay in the UK.
Business Visitors are limited to 6 months stay in the UK although Academic Visitors may stay for up to 12 months.
(i) Sponsorship – how does it work for employers?
An employer wishing to bring non-EEA migrants to the UK under tiers 2 and 5 of the points-based system will need to be a licensed sponsor. Under ‘Tier 2 Skilled Workers’ of the PBS any non-EEA national wishing to work in the UK must have a Certificate of Sponsorship (‘COS’) instead of a work permit in order to work in the UK. Tier 5 deals with Temporary Workers and Youth Mobility.
Under the PBS, an employer wishing to employ non-EEA nationals must apply for a licence to issue COS by joining the Sponsorship Register (‘the Register’). The Register will consists of two parts, Section A for those employers deemed to comply with Home Office requirements to a high standard and Section B for those employers who do not have the correct systems in place or who are deemed to be a risk to immigration control. ‘B’ status employers will be monitored closely by the UK Border Agency and must follow a sponsorship action plan in order to help them become ‘A’ rated. If they do not do this, they risk losing their licence altogether.
The licence will be valid for 4 years and the application fee is currently either £400 or £1,000 depending on the size of the employer.
The PBS requires sponsors will be to determine whether a migrant meets the necessary criteria to be eligible for a COS. This means that the responsibility for checking whether a migrant is eligible to work in the UK has shifted from the Home Office to the employer. With this responsibility comes potential liability and employers must put into place procedures to ensure that they are fully aware of the criteria for issuing COS. A COS is a virtual document, in the form of an electronically generated unique number which is issued to the migrant who will use it in as part of the entry clearance application proves.
Employers who are licensed sponsors also have a number of other new duties and obligations to comply with. For example, they must keep records of non-EEA nationals working for the organisation and of the expiry dates of their permissions to remain. They must also report to the Home Office on the status of non-EEA national employees. For example, unauthorised absences from work must be reported.
Under the PBS an employer must appoint and register the following roles:
? Authorising Officer;
? Key Contact;
? Level 1 user;
? Level 2 user.
The Authorising Officer will be fully accountable to the Home Office for the actions of the employer organisation and should therefore be a senior officer within the employer’s organisation. The Authorising Officer will not be able to issue COS unless they are also established as a Level 1 or Level 2 user.
The Key Contact will liaise with the Home Office if any queries arise. The Authorising Officer can also take this role. The Key Contact will not be able to issue COS unless they are also established as a Level 1 or Level 2 user.
The Level 1 user will undertake the day-to-day operations including issuing COS to migrants, reporting changes to the Home Office and requesting an increase in the number of COS available to the organisation. You may wish to instruct your immigration advisor to act as a Level 1 user.
The Level 2 user role will be similar to the Level 1 user role but with limited access to migrant records and COS. We are currently awaiting full details of this role which has yet to be activated.
ii) Additional sanctions for employers
The government has also recently introduced tougher new duties on employers to check the right of employees to work in the UK before they are employed. These changes have been brought in by amendments to the Immigration, Asylum and Nationality Act 2006. Non-compliance with these duties may lead to a civil penalty of up to £10,000 and/or criminal sanctions (up to two years imprisonment and an unlimited fine) as well as removal from the Sponsorship Register preventing further recruitment of non-EEA nationals.
(iii) Who may be employed under Tier 2?
Tier 2 – Skilled Worker is aimed at enabling UK employers to recruit individuals from outside the UK and EEA to fill a particular job that cannot be filled by a British or EEA worker. Tier 2 has replaced the following routes into the UK:
· Work permit employment (including sportspersons and entertainers other than those who are only seeking to come to the UK temporarily who should apply in Tier 5);
· Ministers of religion, missionaries and members of religious orders;
· Airline ground staff;
· Overseas qualified nurses or midwives (with job offer) ;
· Some seafarers;
· Training and Work Experience Scheme (TWES);
· Various categories of work previously dealt with by concessions outside the Immigration Rules;
· Representatives of overseas media organisations (but not overseas journalists).
(iv) What are the requirements?
In order to apply under Tier 2 you will have to have a job offer from a sponsor licensed by the Home Office. The licensed sponsor will need to provide the worker with a COS. There is also a points requirement for Tier 2. To be eligible as a Tier 2 – Skilled Worker it is necessary to score 70 points from the following three sets of criteria:
· Attributes (sponsorship, qualifications and prospective earnings)
· English language skills; and
If the job you wish to take up in the UK is not on the shortage occupation list published by the government (available on the website www.bia.homeoffice.gov.uk) your job offer will also need to pass the Resident Labour Market Test. The Resident Labour Market Test involves the employer advertising the post in a JobCentre Plus or as agreed in a sector specific Code of Practice for at least two weeks. However, if the prospective salary is over £40,000, one week is sufficient. Current publications state that it will not be necessary to comply with the Resident Labour Market Test where the migrant in question is switching into Tier 2 from the Post-Study Work category of the PBS or where there is an Intra Company Transfer (subject to fulfilling the relevant conditions).
We can advise employers on making an application to become a licensed sponsor.
(v) How long can I stay in the UK Under Tier 2 – Skilled Worker?
You can stay for the duration of your post up to a maximum of three years. You may then apply for an extension of stay for a further two years. An extension application should always be made prior to existing leave running out.
At this point, provided your five year stay in the UK is continuous, it may be possible for you to apply for indefinite leave to remain.
(vi) Can sports people still come to the UK?
Under Tier 2 (Sportsperson) of PBS, sports people will be allowed to come to the UK if they are either an elite sports person or coach, they intend to base themselves in the UK, are internationally established at the highest level and their employment will make a significant contribution to the development of their sport at the highest level in the UK.
The sponsor must give you your governing body endorsement number when they give you your COS.
As with the other categories under Tier 2 – Skilled Worker, sports people will need to qualify by scoring the requisite number of points.
(vii) How do I extend my stay in the UK if I am currently here on a work permit?
If your leave is due to expire, you are now only able to extend your leave under Tier 2 – Skilled Worker if you meet the relevant criteria (see above). If you are an existing work permit holder and you wish to change employment now the new points based system is in force, it will be necessary to make a fresh application under the new system and to meet the full eligibility criteria for a Tier 2 – Skilled Worker application. Now extension of stay may be applied for under Tier 2 except by a licensed sponsor.
i) How can I gain permission to be a Business Person in the UK?
Under Tier 1 (Entrepreneurs), those investing in the UK by setting up or taking over, and being actively involved in running one or more businesses in the UK can apply under the Entrepreneur category. Points are awarded for access to £20,000, money held in a regulated financial institution, and money disposable in the UK. To apply , you must pass a points based assessment and score:
· 75 points for your attributes (age, qualifications, previous earnings and experience in the UK); and
· 10 points for English language; and
· 10 points for available maintenance (funds).
You must be able to support yourself for the entire length of your stay in the UK without needing to rely on welfare benefits (or “public funds” as called by the Home Office). You must show that you have enough money in personal savings to support yourself. If you are applying with existing leave to remain in the UK you will score enough points if you have £800 in available money. If you are applying from outside the UK and applying for entry clearance for permission to come to the UK you must have £2,800 in available money.
ii) The Investor Scheme
The Investor category of Tier 1 allows high net worth individuals to make a substantial financial investment in theUK. Applicants do not need to have a job offer to apply under this category and you will be awarded points based on your ability to invest £1 million in theUK. You will score 75 points for access to £1 million that is disposable and in a financial institution or if you have £2 million in personal assets and £1 million in loan.
iii) Highly Skilled Workers
This category allows highly skilled people to come to the UK to look for work or self-employment opportunities. Unlike the previous Work Permit Scheme (now replaced by Tier 2), applicants do not need a job offer to apply under this category. Again a points assessment is undertaken, applicants must score:
· 75 points for your attributes; and
· 10 points for English language; and
· 10 points for available maintenance (funds).
Identity cards for foreign nationals are currently being phased in. All those extending their stay in the UK or coming to the UK for more than six months will be required to apply for an identity card.
An identity card will be issued as part of the application process. The applicant will need to attend one of seven offices in the UK and provide biometric data, registering their fingerprints and photograph with the Home Office.
Employers and others licensed by the Home Office to sponsor migrants under the PBS will have a duty to keep a copy of a sponsored migrant’s identity card and to make the copy available to Home Office officials on request. The identity card will show clearly the conditions and entitlements of the migrant. This will enable sponsors considering sponsoring a migrant already in the UK to know whether or not the person concerned is permitted to take up the employment or studies they are seeking.
Students and spouses or civil or unmarried partners, and their dependents who were granted further leave to remain were the first to apply for an identity card from 25 November 2008. From 31 March 2009, the following must apply for an identity card as part of their visa applications:
• Academic visitors granted leave for a period exceeding six months;
• Visitors for private medical treatment;
• Domestic workers in a private household;
• UK ancestry;
• Retired persons of independent means, and their partners and children; and
• Sole representatives.
By 2015, the Home Office expect 90% of nationals from outside the EEA or Switzerland tohave an identity card.
This is altering your category of stay while legally in the UK.
Provided that the requirements for the category switched into are met, a student who has obtained a UK degree may switch into being a sponsored worker under Tier 2 or Tier 1 (General), or Tier 1 (Post-Study Worker) and/or other Tier 1 categories. Participants to the Fresh Talent: Working in Scotland scheme may switch into Tier 1 (General);
Those in Tiers 1,2 & 4 will be eligible to switch between these tiers subject to meeting the points requirements of each tier. Tiers 1 & 2 will lead to settlement if the requirements at the time of the application. Applicants cannot switch from Tier 5, nor does Tier 5 lead to settlement.
Dependants may not switch into any tier of the PBS in their own right. They can apply to become under the PBS, outside of the UK, submitting the appropriate application with proof of their eligibility under the relevant tier of the PBS.
For example, a person with permission to remain as the spouse of a British citizen is free to work wherever he or she chooses. If, however, within the two year probationary period of Limited Leave to Remain the marriage breaks down, that person could have their permission to stay in the UK curtailed either by the Home Office or by an Immigration Officer when he or she seeks re-admission to the UK. Such a person may wish to continue to work in the UK but will probably require sponsorship under Tier 2 or Tier 1 approval to do so.
He or she will have to leave the UK whilst the employer seeks a work permit and may only return to the UK to work been either qualified under Tier 1 or Tier 2 and the appropriate entry clearance to re-enter.
For further information, see the Border & Immigration Agency website: www.ukba.homeoffice.gov.uk/workingintheuk.
i) I have permission to stay here as the spouse of a person who is subject to Immigration Control. We are shortly to divorce, what immigration problems will I have after my divorce?
This will depend upon the immigration status of your spouse/civil partner. If he or she has indefinite leave (permission) to remain there should be no problems if you too have indefinite leave to remain but it may still be worth your while taking our advice. If your spouse/civil partner is here in a temporary capacity then you are unlikely to have any right to stay here and you will need specialist advice on acquiring further permission to stay in this country if that is what you want to do.
ii) I am unhappy with my present representative. Are you able to take on my case?
Please call us. We will not encourage you to change representatives unless we think it is in your best interests. It will be important if you have previously been represented that we have all the papers in your case so that we can advise you properly. In the event that you have a complaint about the service you have received from your representative you may wish to raise this with the Office of the Immigration Services Commissioner.
iii) I have leave to remain as a work permit holder but my employer is not licensed under Tier 2 and I wish to continue in my employment.
Your employer should either apply for a license in good time to sponsor your extension or you should consider switching to Tier 1 if you have enough points. You could also seek sponsorship under Tier 2 from another employer.
On December 5th 2005 the Civil Partnership Act came into force. The act allows those in same sex relationships to obtain legal recognition of their relationship by registering their relationship as a civil partnership. The process of registering the relationship consists of giving notice of your intention to register and the registration of the civil partnership itself. The effect of this legislation has been to give proposed civil partners exactly the same rights that fiancés enjoy and civil partners exactly the same rights as spouses enjoy under UK immigration law.
A person who wishes to remain as the spouse of a British citizen must have permission to be here in order to be able to extend their leave. A person currently in the UK who leaves the country having overstayed and applies for entry clearance to re-join their spouse in Britain will have their application considered on its merits. The Entry Clearance Officer may refuse entry clearance under the general right to do so which is set out in the Immigration Rules but usually will not do so if, for example, a marriage is clearly genuine and perhaps longstanding.
Recent changes in the law (subsequently modified) impose a mandatory refusal on the grant of entry clearance for immigration offenders. However, in most circumstances mandatory refusals do not apply to those applying as spouses or fiancées and other dependants. The ban on re-entry will be for one year, five years or ten years depending on the seriousness of the offence.
We will be able to quickly assess your eligibility and can prepare and present your application. The requirements are of residence, intention to live in the UK, character, capacity to communicate in English and an understanding of the British way of life.
i) Indefinite Leave to Remain
This is granted to you by the Home Office unless you are an Irish citizen, an EU National or a Swiss national who has exercised EU treaty rights for 5 years. Irish citizens are deemed to have indefinite leave and EU nationals acquire a right of permanent residence after 5 years because of the Citizens Directive.
Knowledge of English and Knowledge of Life in the UK:
British Citizens must have a knowledge of English but also have a knowledge of Life in the UK. The requirement for both knowledge of English language and knowledge of life in the UK can be satisfied by:
•Passing a short test on knowledge of life in the UK at a Life in the UK test centre. Information about the test and how to prepare for the test can be found on http://www.lifeintheuktest.gov.uk . The test is in English and passing the test will indicate both knowledge of English and Life in the UK.
•Successfully completing a course of study in English for speakers of other languages (ESOL) with classes on citizenship. A certificate showing the level attained together with a letter from the college certifying that the course citizenship content had the requisite citizenship content.
• Those over 65 years of age or those with a mental or physical disability preventing them from learning English or about life in the UK may apply for an exemption.
ii) The effect of being married to a British Citizen
The consequence of marriage/civil partnership to a British citizen is to make the test of residence easier to meet. Some of the residential requirements may be waived, others cannot.
•Marriage/civil partnership to a British citizen
If you are the spouse or a civil partner of a British Citizen and you wish to naturalise you must have been living legally in the UK for three years continuously and not have been in breach of the Immigration Rules during that period. At the time of application you must have Indefinite Leave to Remain (no time limit on your stay). In the three-year period you must show that you were not outside the UK for more than 270 days and in the last 12 months of the three-year period you were not outside the UK for more than 90 days. On the date of application for naturalisation you must show that you were legally present in the UK on the same date three years earlier. The Home Office can waive some but not all of the requirements for naturalisation.
If you are a spouse or a civil partner of a British Citizen you must also meet the following requirements:
You may apply if you are:
• aged 18 or over;
• of good character;
• have sufficient knowledge of the English, Welsh or Gaelic language and the life in the UK; and
• married to a British Citizen on the date of application
iii) Naturalisation of you are not the spouse of a British citizen
Those who are not spouses or civil partners of British citizens will qualify to naturalise under slightly more onerous conditions than those with British spouses.
You will need to show that you have been living continuously in the UK for five years and that you were not in breach of the Immigration Rules during that period. You must have had no time limit on your stay (Indefinite Leave to Remain) for at least a year before you apply. You must show that during the 5-year period you were not out of the UK for more than 450 days in total and that during the last twelve months before you make your application you were not absent from the UK for more than 90 days.
You must also meet the following additional requirements:
You may apply if you are:
• aged 18 or over and not of unsound mind
• of good character
• have a sufficient knowledge of the English, Welsh and Gaelic language and life in the UK
• intend if you become naturalised to live in the UK (there are exceptions for those working in Crown Service abroad)
iv) Registration of a child as a British citizen
A child under 18 years old may apply to be registered as a British Citizen at the discretion of the Secretary of State for Home Department. The registration of a child may be included on a parent’s naturalisation application or by individual application. Some children have a legal right to be registered; all children can apply to be registered on a discretionary basis.
Applications for naturalisation or registration do not necessarily need to be supported by the actual passports as evidence of residence. We can prepare certified copies if appropriate.
If your application for naturalisation is successful you will be formally invited to attend a citizenship ceremony. You must attend a ceremony within 90 days of receiving the invitation. At the ceremony you will be asked to swear your allegiance to Her Majesty the Queen and to pledge your loyalty to the UK. Following this you will be presented with your certificate of naturalisation as a British citizen.
v) Proposed changes to Naturalisation
The government is currently introducing new and more onerous naturalisation requirements. BWB is closely involved in making representations about the changes and we can provide the most up to date advice. If you think you qualify now for naturalisation, act now and seek our advice.
11. Can you help me get permission to go to countries other than the UK?
Our Immigration department is fully equipped to advise you on visa’s for the United States and other countries. Sue Kukadia, who is a member of the New York Bar advises on:
1. UK, US and global immigration law with an emphasis on corporate immigration law;
2. Undertakes work for a wide variety of multinational corporations assisting with expatriate global mobility; and
3. Global employment authorisation and residence applications.
We trust you have found the information set out above both interesting and useful. There is no substitute for dedicated personalised advice. Please contact us by email or telephone to discuss this.
Updated: February 2009
In conjunction with other departments, early advice should be sought upon the wider implications of immigration to the UK such as:
• establishment of companies and branches
• purchase of property
When you first contact BWB seeking immigration advice, you will be given an indication of possible costs likely to be incurred. You may also be asked to bring a payment to cover initial costs when you come to see us. Such payments are known as “payments on account of costs”. Once your immigration advisor has assessed what work needs to be done, he or she may ask you for further payments on account of costs at agreed intervals and agree, if at all possible, schedules for regular billing. Payments received on account of costs are held in your client account and remain there until we send you a bill. The amount you will be charged depends on the amount of time spent on a case (unless we have agreed a fixed fee for the work) and the charging rate of the various fee earners providing immigration advice, these vary depending on their seniority and experience.
If agreed arrangements for payment of bills or payments on account of costs are not adhered to we may decline to act further in your case. Return to top