UKBA Policy Statement On Article 1F of the Refugee Convention

The UK Border Agency has today issued the following policy statement:

With effect from 2 September 2011, all cases excluded from the protection of the Refugee Convention by virtue of Article 1F but who cannot be immediately removed from the UK due to Article 3 of the European Convention of Human Rights will be subject to a new, tighter, restricted leave policy.

Such cases should usually only be granted restricted discretionary leave to remain for a maximum of 6 months at a time, with some or all of the following restrictions:

  • a condition restricting the person’s employment or occupation in theUK;
  • a condition restricting where the person can reside;
  • a condition requiring the person to report to an immigration officer or the Secretary of State at regular intervals; and
  • a condition prohibiting the person studying at an education institution.

In addition, relevant information on all Article 1F cases will be referred by the UK Border Agency to the Independent Safeguarding Authority (ISA) to consider whether the individuals concerned should be barred from working/volunteering in ISA-regulated fields.

This policy applies to all relevant individuals, whether they are seeking leave or renewal of leave to remain, including cases in which a previous grant of leave to remain was for a period longer than 6 months.

The power to attach conditions to leave is provided by section 3(1)(c) of the Immigration Act 1971. A person who knowingly fails to observe a condition of their leave commits an offence by virtue of section 24 (1)(b)(ii) of the Immigration Act 1971. Where appropriate, this policy will be enforced by the prosecution of individuals who do not comply with the conditions of their leave.

Tier 1 (Exceptional Talent) Launches

The Tier 1 (Exceptional Talent) Tier of the PBS has been launched today.

This new category will facilitate not only those who have already been recognised but also those with the potential to be recognised as leaders in their respective fields. There is a limit of 1,000 places in the first year of operation. There will be 500 places available between the 9 August and 30 November and a further 500 places available from the 1 December to 31 March 2012. The number of places will be reviewed by the UKBA at the end of March 2012.

Tier 1 (Exceptional talent) will be overseen by world-renowned “competent bodies”, which will advise the UKBA on applicants to ensure that they are the brightest and best in their field:

  • the Royal Society, a fellowship of the world’s most eminent scientists, will be able to nominate up to 300 places;
  • Arts Council England, the national development agency for the arts, will also be able to nominate up to 300 places;
  • the Royal Academy of Engineering, Britain’s national academy for engineering, will have up to 200 places to nominate; and
  • the British Academy, the national academy for the humanities and social sciences will be able to nominate up to 200 places.

Immigration Minister Damian Green said:

The UK is a global leader in science, humanities and engineering and we are a cultural centre for the arts: we will continue to welcome those who have the most to offer and contribute to our society and economy. Our new exceptional talent route, available for up to 1,000 applicants, will ensure that we continue to attract the brightest into the UK and keep the UK a global leader.

Migrants seeking entry to the UK under Tier 1 (Exceptional talent) will not need to be sponsored by an employer, but will need to be recommended by one of the competent bodies.

 

Tier 1 (Exceptional Talent) immigration route opens

On 20th July 2011 the government announced the requirements and application procedure for the Tier 1 Exceptional Talent category under the Points Based System. The UK Border Agency (UKBA) will start accepting applications from 9th August 2011.

The Tier 1 Exceptional Talent route was introduced into the Immigration Rules on 6th April 2011 (Statement of Changes in Immigration Rules HC863), however, operation of the scheme has been “suspended” until now. On 20th July 2011 the UKBA announced the identities of the Designated Competent Bodies authorised to issue endorsements to exceptionally talented candidates and published their practice guidance. Application forms should be available before the opening date on 9th August 2011.

The recognition of talent will come from a Designated Competent Body in the form of an endorsement. There are four such bodies authorised to issue the endorsements:

  • the Arts Council – for arts and culture applications;
  • the British Academy – for humanities and social science applications;
  • The Royal Academy of Engineering – for engineering applications; and
  • the Royal Society – for natural sciences and medical science research applications.

The Tier 1 Exceptional Talent category is for “exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have already demonstrated exceptional promise and are likely to become world leaders in their particular area” (UKBA Guidance).

There are therefore two categories of migrants under the Tier 1 Exceptional Talent route:

  • Exceptionally talented – those who can demonstrate that they are the world leaders in their field; and
  • Exceptionally promising – those who can demonstrate the potential to become world leaders in their field.

When making an application certain documentation must be provided in support. For those seeking endorsement by the Arts Council,only established world-class artists will be considered by this body. The Tier 1 Exceptional Talent route will therefore not be open to promising artists, as the evidence required by the Arts Council is that candidates must be already professionally engaged in producing work of outstanding quality which has been published, performed, presented, distributed or exhibited internationally.

Actual or potential world leaders in the fields of social sciences,humanities, engineering, natural and medical sciences have been given the opportunity to be considered by their relevant Designated Competent Bodies, provided that they submit strong evidence of their actual or prospective success.

In all of the above categories letters of recommendations from eminent individuals or organisations will play a significant evidential role.

An Entry Clearance (visa) in this category will be mandatory (in-country applications switching from other immigration categories will not be available, unless there are exceptional circumstances which prohibit the applicant from travelling to their country of normal residence to make the application). Successful applicants will obtain leave to enter for three years, with the possibility of an extension for a further two years. On completion of five years of continuous residence in the UK in this category, migrants will be allowed to apply for Indefinite Leave to Remain, provided that the government does not change the Immigration Rules in the future.

The total number of successful applications will be capped at 1000 during the first allocation period which will run from 9th August 2011 until 5th April 2012. Each Designated Competent Body has its own limit of endorsements available.

Procedure

  • Before making an application for an Entry Clearance in the Tier 1 Exceptional talent category, all candidates will be required to obtain a Unique Reference Number from the UKBA. The request for the Unique Reference Number will be made by email and must indicate the relevant Designated Competent Body.
  • Once issued, the Unique Reference Number will be valid for 10 days and within this time an application for the Entry Clearance must normally be made at an appropriate UKBA Visa Application Centre abroad. All required supporting documentation must be submitted to the UKBA Visa Application Centre, which will then send it to the Designated Competent Body indicated by the applicant.
  • The appropriate Designated Competent Body will assess applicants against their published eligibility criteria and advise the UKBA whether the criteria have been met. If they have been met it will issue an endorsement.
  • An endorsement from a Designated Competent Body will entitle applicants to claim 75 points for their attributes under the Points Based System and be eligible for an Entry Clearance in the Tier 1 Exceptional Talent category. In addition to the points criteria, candidates will also be assessed against the general grounds for refusal such asfor example their immigration history.

Successful applicants will obtain the right to enter the UK for three years with the right to take up employment or self-employment. Before the expiry of their three year visa, migrants will be entitled to extend their stay for a further two years. To qualify for extension they will need to show that on the date of the application they are economically active in employment or self employment in their expert field and the Designated Competent Body has not withdrawn its endorsement. They will also need to supply evidence of their English language ability. The minimum level of English language has been set at B1 of the Common European Framework of Reference (equivalent to IELTS 4.0 – 5.0).

On completion of five years of continuous residence in the UK under the Tier 1 Exceptional Talent category migrants will be able to apply for Indefinite Leave to Remain.

The new scheme places the main responsibility for assessment of candidates on the Designated Competent Bodies. Associated with this role are duties and obligations placed on those Bodies effectively passing responsibility for the assessment of the entitlement to an immigration status to a body outside the UKBA. The system therefore in part resembles sponsorship under the Tier 2, Tier 4 and the Tier 5 routes, where the burden of immigration control is effectively passed on to employers and other sponsors, with the UKBA remaining in a quasi regulatory and supervisory role, with powers to enforce the rules.

Changes To Tier 1 (Post-Study Work) Application Forms And Policy Guidance

The UKBA has today published new versions of the application form and policy guidance for Tier 1 (Post-study work) of the points-based system, for applications made on or after today.

Trainee doctors on a Foundation Programme with permission to stay in the UK under Tier 4 can now switch into Tier 1 (Post-study work) up to 1 month before the date when their programme ends. This change has also been reflected in the policy guidance for Tier 2.

 

Changes To Student Visa Rules

Following recent changes to the Immigration Rules, the following changes to Tier 4 of the PBS have been made:

  1. restrictions to work entitlements to migrants studying at higher educational institutions (HEIs) and publicly funded further education colleges only;
  2. restrictions to the sponsorship of dependants to those studying at postgraduate level at HEIs on courses lasting at least 12 months, and government-sponsored students on courses lasting at least 6 months;
  3. a requirement for education providers to vouch that a new course represents genuine academic progression;
  4. introduction of a new declaration on the visa application form;
  5. introduction of a streamlined application process for low-risk nationals applying to attend courses with Highly Trusted Sponsors;
  6. extension of the list of courses for which students must receive ATAS clearance;
  7. restriction on the ability to deliver accountancy courses accredited by the Association of Chartered Certified Accountants (ACCA) to those sponsors accorded platinum or gold status by ACCA; and
  8. clarification on the position of overseas universities with campuses in theUK.

New Tier 4 Forms

The UKBA have today published  new versions of application forms for Tier 4 (General), Tier 4 (Child) and dependants under the Points-Based System. These forms are for use by applicants who are already in the UK.

UKBA Clarification for Tier 4 Sponsors

In response to queries from sponsors, the UKBA has today produced a document clarifying certain aspects of the current review of the student immigration stsyem. The document answers some frequently asked questions raised by sponsors in the following areas:

  1. educational oversight and accreditation
  2. Highly Trusted Sponsor status
  3. the interim limit
  4. contact details for enquiries about the sponsorship management system
  5. post-study work
  6. immigration officers’ discretion to refuse
  7. dependants
  8. maintenance and low-risk countries
  9. academic progression

New EEA Application Forms

The UK Border Agency has today released revised EEA1, EEA2, EEA3 and EEA4 application forms. The revised forms (version 06/2011) should be used for all applications made on or after 20 June 2011.

New versions of the BR1 application form (used by Bulgarian or Romanian nationals who want to apply for authorisation to work in the UK) and policy guidance have also been released.

 

Proposals For Breaking The Link Between “Temporary” And “Permanent” Migration Announced

Migrants coming to the UK to work on “temporary” visas will no longer be able to apply for settlement, under proposals announced by the government today.

Launching a public consultation on reforms to the work routes leading to settlement, Immigration Minister Damian Green set out plans to re-classify visas as either ‘temporary’ or ‘permanent’ and introduce stricter criteria for those who want to stay:

The proposals I am making today are aimed at breaking the link between temporary and permanent migration. Settlement has become almost automatic for those who choose to stay. This needs to change. The immigration system has got to be made to work properly. We want the brightest and best workers to come to the UK, make a strong contribution to our economy while they are here, and then return home.

A small number of exceptional migrants will be able to stay permanently but for the majority, coming here to work will not lead automatically to settlement in the UK

Key proposals under consideration in the 12 week consultation are as follows:

  1. re-branding Tier 2 (the skilled worker route) as “temporary”, ending the assumption that settlement will be available for those who enter on this route;
  2. allowing certain categories of Tier 2 migrant, for example those earning over £150,000 or occupations of a specific economic or social value to theUK, to retain an automatic route to settlement;
  3. creating a new category into which, after three years in the UK, the most exceptional Tier 2 migrants may switch and go on to apply for settlement;
  4. allowing Tier 2 migrants who do not switch into a settlement route to stay for a maximum of five years with the expectation that they and any dependants will leave at the end of that time;
  5. introducing an English language requirement for adult dependants of Tier 2 migrants applying to switch into a route to settlement;
  6. restricting the maximum period of leave for Tier 5 Temporary Workers to 12 months; and
  7. closing or reforming routes for overseas domestic workers.

Section 19 Of The UK Borders Act 2007 Comes Into Force

Section 19 of the UK Borders Act 2007 has today come into force and, as a result, restricts the evidence that an appellant can rely on at a PBS appeal hearing. Any evidence submitted must have been produced at the time when the application was made. Any new evidence submitted at a hearing for the first time will now only be allowed if it is being used to prove, for example, that a document originally submitted was genuine, or if it is in support of grounds unrelated to the scoring of points under the Points-Based System.