UK Immigration & Nationality Lawyers

I run an IT consultancy business which sponsors Tier 2 migrants and I am concerned about changes to the Immigration Rules coming into effect on 6 November 2014. My employees are often supplied to clients on a contract basis and spend a significant amount of time working on client premises. Is this allowed under the new regulations?

Date: October 31, 2014

The Statement of Changes in Immigration Rules published on 16 October 2014 only affects new Tier 2 visa applicants who will not be get any points for certificates of sponsorship issued for a migrant who would be providing an ongoing routine service to a third party. These rules coming into effect on 6 November 2014 are intended to prevent a Tier 2 sponsor from acting as an agency supplying contract staff to third parties.  Similar provisions were in the Employer Guidance document before the announcement of changes in the immigration rules. There is no specific mention of seconding Tier 2 employees to a third party location. Yet, the Guidance also contains a vaguely worded restriction on “ongoing routine services” to a third party. In other words, there is no blanket prohibition, but each scenario has to be addressed on a case by case basis.  Your position as a Tier 2 sponsorship licence holder may be affected if you are in breach of the rules laid down in the guidance. And this may in turn affect your current staff with Tier 2 General visa. We strongly recommend seeking professional legal advice in order to discuss the arrangements in more detail and ensure you are compliant.

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I am studying at a UK university under the Tier 4 (General) visa and am due to graduate at the end of this academic year. I have found an employer who is willing to sponsor me at the “new entrant” salary rate after I graduate, but I am over 26 years of age. Am I correct in thinking that I can switch to a Tier 2 (General) visa and still work as a “new entrant”?

Date: October 23, 2014

Unfortunately, there is a discrepancy between the Policy Guidance document for Tier 2 sponsors and the Immigration Rules on this point. The Tier 2 sponsor’s guidance document says at paragraph 26(2)(f) that you can be paid the new entrant rate regardless of age if you are switching from Tier 4 to Tier 2 (General), as long as your studies have lead to the award of the required qualification. However, paragraph 14 (d) of Appendix J of the Immigration Rules, which specifies applicability of the new entrant salary rate, only provides for Tier 4 General migrants switching into Tier 2 General category where their Sponsor had carried out a university milkround or where the migrant is under the age of 26 on the date of the application. In principle, the Guidance document should prevail. But there is a risk of litigation on this point.

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What is the difference between an EEA family permit and EEA residence card?

Date: October 11, 2014

Both EEA family permit and EEA residence cards are issued to third country national family members of EU citizens. EEA family permit is similar to entry clearance and is issued by an Entry Clearance Office outside the UK, in the country of the migrant’s habitual residence, and is valid for six months. EEA residence card is issued by the Home Office in the UK and is normally valid for five years. Both documents can be used as confirmation of the right to enter the UK, the right to take up employment, rent accommodation, and register with a GP for primary health care.

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I have been employed under the Tier 2 (General) category for just over a year since my graduation from a University in the UK. I would now like to change employers and wanted to know if I could apply to extend my visa as a “new entrant” despite the fact that some time has passed since I graduated.

Date: October 9, 2014

You may extend your Tier 2 (General) visa at the “new entrant” salary rate while changing employers if you are under 26 years of age on the date of your application for extension and as long as the extension would not take your total stay under Tier 2 to more than 3 years and 1 month. Therefore, the date of termination of your contract specified by your new employer on the Certificate of Sponsorship should be less than 3 years and 1 month from the date you were first granted your Tier 2 (General) visa.

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I am working in the IT sector on Tier 2 Intra-company transfer visa. Is it possible for me to switch to the Tier 2 (General) visa category?

Date: October 9, 2014

There are two conditions under which it is possible to make this switch.  The first is if your Tier 2 (Intra-company transfer) visa was issued under the rules in place before 6 April 2010 and you are applying to change sponsor.  Secondly, you may switch if you are applying to change sponsor and were granted the now obsolete Tier 2 (Intra-company transfer: Established staff) visa before 6 April 2011.  If your current visa was issued after 6 April 2011 you will not qualify to switch to Tier 2 (General) visa.

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I am in the process of applying for a Tier 1 Entrepreneur visa and have been called for an interview as part of the “Genuine entrepreneur” test. What can I expect and how can I make sure I am fully prepared?

Date: September 24, 2014

While it is difficult to give a definitive list of questions you may be asked, one may expect that the interview will be aimed at assessment of the genuineness of your intention to run a business. You may be asked about the source of your funds, your business plan and market research you have carried out, as well as general questions about your background. The interviewer may also ask questions regarding any information submitted on the application form.  There is no requirement to have entrepreneurial experience in the past, but a robust presentation of your plans will be expected.

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My Tier 1 (Entrepreneur) visa is due to expire and I would like to extend it. However, I am running a loss-making business. Do I have a chance to extend my visa?

Date: September 24, 2014

Yes, you should be able to extend your visa. There is no requirement for Tier 1 entrepreneurs to make the business profitable or break even.

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I have a Tier 1 General visa which expires next month. I wish to apply for extension, but I have been out of the country for most of the last two years. Can I still apply?

Date: September 18, 2014

There are no continuous residence requirements associated with the extension of stay for Tier 1 General migrants. You still need to meet financial requirements of the immigration rules, but you can rely on earnings from abroad. At the same time it is important to remember that an application for extension of stay as a Tier 1 General migrant can only be made before 6 April 2015. After that date Tier 1 General migrants will only be apply for settlement or variation of status.  You may not qualify for indefinite leave to remain when your extended visa runs to an end, as you would need to demonstrate continuous residence of five years. Bear this in mind before you decide to apply for extension.

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As a Tier 1 (Entrepreneur) visa holder, can I invest in commercial property? And can residential accommodation be part of the commercial property?

Date: September 18, 2014

Tier 1 Entrepreneur may invest in commercial property.  However, the value of the residential accommodation will not be counted towards the amount of the business investment. In order to demonstrate the required level of investment, you will need to provide an evaluation of the living accommodation prepared by a chartered surveyor.  The estimated value of residential premises will be deducted from your overall investment. Surveyor’s report should be dated within three months of your application for extension of leave to remain.

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I am a university student in the UK on a Tier 4 visa. I have failed some of my modules and I need to re-sit the exams in order to continue my course. My visa expires before the re-sit date. How do I extend my student visa in the UK?

Date: September 17, 2014

A new CAS may be issued for students who intend to re-site an exam or re-take a module. There is a limit on the number of times you would be allowed to attempt the re-sit or re-take the modules. A-rated sponsors are not allowed to hold re-sits more than twice. Highly trusted sponsors are not subject to this strict limit, but would need to justify any additional attempt by exceptional circumstances. In all cases, issuance of CAS for re-sits or retaking the module is at the discretion of the sponsoring institution on the basis of their assessment of the student’s ability to pass the course. The new CAS may only be issued where the student’s continued participation in academic studies is required within 60 days of the start of the next academic period. If you only need to re-sit the exam and do not intend to participate in academic studies, a new CAS cannot be issued. In this case you will be required to leave the country and apply for entry clearance as a student visitor for the purpose of re-sitting the examination.

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