Важные изменения в Правилах с марта 2019 года

[British Lawyer]

08 March 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> New statement of changes to the Immigration Rules: HC 1919

See https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1919-7-march-2019

A new statement of changes to the Immigration Rules was published on the 7th March 2019. It is 294 pages long. The main changes are to Tier 1 entrepreneur and investment visas, and to the EU Settlement Scheme.

The new Appendix W (for “workers”) now contains the stipulations for two new visa types — start-up and innovator — but will eventually swallow up all work-related visas.

Most of the changes take effect on or around the default date of Brexit, 29 March 2019, or a week later on 6 April and others - during the summer 2019.

The main changes are:

1. Appendix W and Tier 1 of the Points Based System

Both the Tier 1 (Graduate Entrepreneur) and the Tier 1 (Entrepreneur) route will be scrapped, and replaced by “start-up” and “innovator” routes.

For both routes, applicants will need to:

•     be endorsed by trusted organisations in the UK, “such as business accelerators, seed competitions and government agencies, as well as higher education providers”
•     stay in contact with those endorsing bodies regularly
•     show that they speak English at level B2 (higher than the current required level B1)
•     that their business plans are “credible” (they may be called for interviews to test this)
•     and that they have held £945 in their account for 90 days prior to the application (although these funds can now also be provided by the endorsing bodies)
  

They will be allowed to come with, or by joined by, their dependants, with rules similar to those currently applicable to Point Based System migrants.

Start-up visa

The Graduate Entrepreneur route will be closed to new applicants as of 6 July 2019.

Tier 1 (Graduate Entrepreneur) applications can therefore continue to be made until 5 July 2019.

The Tier 1 (Graduate Entrepreneur) will be replaced by the Start-up visa category. The Start-up category is an expanded version of the Tier 1 (Graduate Entrepreneur) category. It is for those starting a new business for the first time in the UK. Applicants will not need to be graduates and will not need to have secured any initial funding. Successful applicants will be granted 2 years’ leave (doubled from 1 year) and will be able to progress into the Innovator category to continue developing their businesses in the UK after that time.

Part W5 of the new Appendix W contains the specific requirements for a start-up visa, including who can endorse applicants for one, their monitoring responsibilities and the form of an endorsement letter. The letter must contain specified information and speak to the business’s “innovation, viability and scalability”. In addition, although someone on a start-up visa is not limited to work for their business only, the endorsement body letter must confirm that the endorsing body is “reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures”.

A start-up visa “does not lead directly to settlement in the UK”, although the person can switch onto an innovator visa. There are transitional arrangements for those already here on Tier 1 (Graduate Entrepreneur) visas to switch onto the new system.

Innovator visa

Tier 1 (Entrepreneur) will be replaced on the 29th March 2019 by the Innovator visa. The Innovator category is intended for more experienced businesspeople. As well as an endorsement, applicants will need £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 (Entrepreneur) category). The funding requirement will be waived for those switching from the Start-up category who have made significant achievements against their business plans. The category may lead to settlement in the UK.

The new Appendix W gives the details, this time in Part 6. The three main endorsement criteria are, like for start-up visas, innovation, viability and scalability, although an applicant is expected to show that they already have the necessary skills (start-ups can show that they are “developing” them; and that there is potential for growth into national and international markets (rather than national only for start-ups). The endorser must also be “reasonably satisfied that the applicant will spend their entire working time in the UK on developing business ventures”; i.e. innovators cannot work other than for their business.

There is not yet a set list of organisations that can endorse someone for an innovator visa, although endorsing bodies must be able to satisfy the criteria in Part W6.8.

Innovators will be eligible to apply for indefinite leave to remain after 3 years continuous residence in the UK as innovators, provided they satisfy at least two of a list of criteria relating to how much money they invested, how much the business grew and/or how many jobs they created.

Extension applications for Tier 1 (Entrepreneur) migrants will remain open until the 5th April 2023, and settlement applications until the 5th April 2025. Successful Tier 1 (Entrepreneur) migrants applying for an extension from abroad will be granted 2 years and 4 months leave (as opposed to the current 2 years).

Tier 1 Investor visas

There are significant changes to the Tier 1 (Investor) route from 29 March 2019.

These include lengthening the period for which funds must be held prior to applying from 90 days to 2 years. The requirement to open a UK bank account before applying for an investor visa “is being tightened to make explicit that the bank must carry out all required due diligence checks and Know Your Customer enquiries, and confirm that these have been done”.

Applicants will no longer be able to simply buy up UK national debt to qualify as an investor. Purchase of UK government bonds is being excluded as a qualifying investment.

There will be tighter rules on routing investment funds via “intermediary vehicles”, including a requirement that such vehicles be regulated by the Financial Conduct Authority. The definition of “active and trading” companies is also being tightened so that they:

(i) are registered with Companies House in the UK;
(ii) are registered with HM Revenue and Customs for
corporation tax and PAYE;
(iii) have accounts and a UK business bank account, both
showing regular trading of its own goods or services;
(iv) have at least two UK-based employees who are not its
directors.

Transitional arrangements for current Investor visa holders will be in place until the 5th April 2023 for extension applications and the 5th April 2025 for settlement applications. Successful Tier 1 (Investor) migrants applying for an extension from abroad will be granted 2 years and 4 months leave.

Tier 2 salary levels

The Codes of Practice at Appendix J of the Rules have been amended, resulting in an increase in the minimum salary sponsors will need to pay applicants for many SOC codes.

There is also a technical change to the salary bands that inform the monthly quota of Tier 2 (General) visas. Essentially, visa applications get a higher priority in the quota allocation the higher the salary, but the points only increase every £5,000. This means that when the quota is oversubscribed, a whole batch of applications that are on all the same points are rejected en masse, as there is no fair way of being able to decide which to approve and which not to. To address this issue, the Government has removed the bands and instead awarded one point for each £1,000 of gross annual salary. The effect of this change will mean more applications could be awarded within a monthly allocation, reducing potential refusals.

Students on Tier 4 leave who are eligible to switch to Tier 2 can apply up to three months before the expected completion date of their course (rather than only after they completed the course).

Tier 2 migrants applying for indefinite leave to remain will need to earn a minimum salary of £38,800 if the date of application is on or after 6 April 2023, and £40,100 if the date of application is on or after 6 April 2024.

 

Part 2

Changed to the EU Settlement Scheme

Significant points to highlight are:

    It will be possible to apply under the scheme from outside the UK.

   -Non-EEA citizens will be able to apply for an “EU Settlement Scheme Family Permit” to join or accompany an EEA citizen who has been granted leave under the settlement scheme. Those Family Permits will be valid for six months.
    -Applications made under Appendix EU will be free of charge. (This will be implemented by secondary legislation.)
    -Citizens of Norway, Iceland, Liechtenstein and Switzerland, and their family members, will be able to apply under the Settlement Scheme
    -Zambrano carers and other non-EU citizens with “derivative” rights of residence in the UK will be able to apply for settled status. As well as Zambrano cases, “Chen carers’”(the primary carer of a self-sufficient EEA citizen child) and “Ibrahim and Teixeira” cases (a child of a former EEA citizen worker who is in education in the UK and their primary carer) are covered. Their applications will have to be made on a paper application form, however.
    -Everyone else must go digital, unless a paper application is “approved on an individual basis in light of the exceptional circumstances of the case”. These exceptional circumstances are still undefined for now, it appears, but will appear on gov.uk at some stage.
    -The date by which EEA nationals must have been continuously resident in the UK, and certain family relationships will need to have been formed, will be 31 December 2020 if the UK leaves with a deal, or 29 March 2019 if the UK leaves without a deal
    -Those living on the Isle of Man or Channel Islands can get settled status too.
    -EU citizens who have been working for the UK government or armed forces abroad (“Crown service”) can count this towards their residency for settled status.
    -It will be possible to submit national ID cards as identity documents for EEA nationals, and biometric residence cards for non-EEA family members
    -“There will also be scope for the Secretary of State to accept alternative evidence of identity and nationality where the applicant is unable to provide the required document due to circumstances beyond their control, or due to compelling practical or compassionate reasons.”
    -Administrative reviews can now be made from outside the UK.
    -Some of the general grounds for refusal found at part 9 of the Immigration Rules will apply to applications under the EU Settlement Scheme if the UK leaves without a deal

Statelessness

In future there will be an initial grant of five years leave if the stateless succeed in applying to stay in the UK for lack of any other nationality (up from 30 months today). But applicants now have to show that they cannot acquire another nationality in order to succeed. Paragraph 403 of the Rules now includes a requirement that an applicant for leave to remain as a stateless person:

    "c) has taken reasonable steps to facilitate admission to their country of former habitual residence or any other country but has been unable to secure the right of admission.

and

    (e) has sought and failed to obtain or re-establish their nationality with the
    appropriate authorities of the relevant country; and

    (f) if, in the case of a child born in the UK, has provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.”

Other changes

Other changes brought about by the Statement of Changes include

    The time limits for study at degree level or above does not include time spent studying below the age of 18.
    Some changes to the evidential requirements for Tier 1 (Exceptional Talent) applications
    The Jamaican Nursing Exchange scheme is added to the list of approved Government Authorised Exchange schemes
    Tier 5 (Youth Mobility Scheme) applicants from Hong Kong will no longer need to obtain a certificate of sponsorship before they apply
    The list of countries in Appendix H, for which there are lower documentary requirements for Tier 4 student visas, is updated to add Brazil, Kazakhstan, Mauritius, Oman, Peru and Tunisia; and to remove Argentina, the Maldives and Trinidad and Tobago. The minister says that “this will result in approximately 4,500 additional students being able to benefit from Appendix H”.

[Fezz]

Ну дела....

Невероятно, за последние 10 лет это наверное первое послабление правил, да еще какое...

Получается теперь 'start up'апам можно не быть выпускниками вузов (!), чтобы получить сразу 2х летнюю визу. Фактически путь открывается для всех желающих (!!) и сразу на 2 года, вместо 1+1 по уходящей Graduate Entrepreneur.

Дальше больше, "инноваторам" (вместо текущих Entrepreneur) можно будет сразу за 3 года получать ILR, вместо 5 по системе 3+2? да еще и без обязательного сегодня создания двух рабочих мест (!)  и с инвестициями всего в 50 (!!) тысяч, вместо 200... Невероятно

И вопрос Антону, а что-то можно придумать, если я в данный момент ожидаю получения ext. по Ent., и получается уже 3 года по данной схеме прожил, рабочие места создал, деньги проинвестировал. Выходит (по новым правилам) все условия выполнил. И что теперь предется дальше по старой схеме сидеть еще  2 года, создавать рабочие места еще на год, платить зарплаты и новые правила ко мне не применимы и податься сразу на ILR не выйдет?!

 

 

 

[British Lawyer]

В 09.03.2019 в 11:42, Fezz сказал:

Ну дела....

Невероятно, за последние 10 лет это наверное первое послабление правил, да еще какое...

Получается теперь 'start up'апам можно не быть выпускниками вузов (!), чтобы получить сразу 2х летнюю визу. Фактически путь открывается для всех желающих (!!) и сразу на 2 года, вместо 1+1 по уходящей Graduate Entrepreneur.

Дальше больше, "инноваторам" (вместо текущих Entrepreneur) можно будет сразу за 3 года получать ILR, вместо 5 по системе 3+2? да еще и без обязательного сегодня создания двух рабочих мест (!)  и с инвестициями всего в 50 (!!) тысяч, вместо 200... Невероятно

И вопрос Антону, а что-то можно придумать, если я в данный момент ожидаю получения ext. по Ent., и получается уже 3 года по данной схеме прожил, рабочие места создал, деньги проинвестировал. Выходит (по новым правилам) все условия выполнил. И что теперь предется дальше по старой схеме сидеть еще  2 года, создавать рабочие места еще на год, платить зарплаты и новые правила ко мне не применимы и податься сразу на ILR не выйдет?!

 

 

 

Приветствую.

Home Office понимает, что нужно же кае-то заменить Европейцев...

По текущим правилам и по тому, сколько времени Вы провели в UK, Вам нужно и "закончить" по новой категории. Детально нужно смотреть Appendix W и другие сопутствующие документы, т.к. c Home Office возможны "варианты".

Кстати, тот же Новатор (Innovator) существовал раньше, до появления Tier 1 (Entrepreneur).

Сейчас получил детальный brief по изменениям, постараюсь скоро выложить здесь.

 

[British Lawyer]

Detailed follow up:

11 March 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> More on the newly introduces immigration categies

Start Up Visa

The Start-up category is for those who are looking to establish a business in the United Kingdom for the first time. In order to qualify under this category, applicants need a business idea that is (a) innovative, (b) scalable; and (c) viable. The idea itself must be supported by an ‘endorsing body’. A grant of leave under this category is for 2-years and does not lead directly to settlement. It is important to note that the 2 year time-limit for length of leave will include time already granted under the Tier 1 (Graduate Entrepreneur) route. Whilst applicants are ‘timed out’ of leave after 2 years, they may, if they wish, switch to the innovator category.

Innovator

The innovator category is for a businessperson with more experience. Presumably this is defined as someone who has already set up a business in the United Kingdom, or has prior business experience abroad. In any event, the definition of ‘innovator’ sits in juxtaposition to the definition of the Start-up category, which is for those who are looking to establish a business in the UK for the first time. An innovator, like a Start-up migrant, must have a business idea that is (a) innovative, (b) scalable; and (c) viable, which is supported by an ‘endorsing body’. With a few exceptions, applicants under the innovator category will also have to demonstrate that they have funding to invest in their business. In particular, applicant will need £50,000 to invest in their business from any legitimate source. Dependant on how an applicant has performed with regards to the business they submitted for a start-up visa (if they did this) the funding requirement may be waived. The key difference between the innovator and start-up categories is that someone in the innovator category is on the route to settlement if they so wish.

Leave under both categories will be subject to a, fully inclusive, list of conditions. The prospective migrant must not (a) undertake employment as a doctor or dentist in training or (b) undertake employment as a professional sportsperson, including coaches. Finally, innovators must not undertake employment other than working for the business/es that the applicant has established.

The rules go on to clarify that: “working for such business(es) does not include any work pursuant to a contract of service or apprenticeship, whether express or implied and whether oral or written, with another business. This means successful applicants cannot effectively fill a position or hire their labour to another business, even if the work is undertaken through contracting with the applicant’s own business or through a recruitment or employment agency.”

Applicants will be granted leave subject to 3 conditions, namely (a) they will have no recourse to public funds, (b) they must register with the police if required by Part 10 of the Immigration Rules; and (c) they may study, subject to the conditions in Part 15 of the Rules. Applicants can have their leave curtailed pursuant to paragraph 323 (Part 9) of the Immigration Rules, as usual. Additionally, however, leave may be curtailed under these categories if an ‘endorsing body’ either (a) withdraws their endorsement of the migrant; or (b) loses their status as an endorsing body.

The new Appendix W, with regards to the new categories above “includes similar provisions to the Points-Based System regarding evidential flexibility, switching categories, English language and maintenance funds requirements, qualifying for settlement and the ability for dependants (partners and children under age 18) to apply.”

A prospective applicant will need at least £945 in maintenance funds, which increases in line with dependants, English language requirements have been toughened up to B2 level, up from B1. Finally, after 3 years’ continuous residence under the Innovator category, an applicant will be eligible for indefinite leave to remain. However, the knowledge of life in the UK test remains an integral part of acquiring indefinite leave to remain.

With regards to switching from the existing PBS into the new categories, Appendix W also lays out some equivalences. People in either (a) Tier 1 (Graduate Entrepreneur), (b) Tier 2, (c) Tier 4 (General) – with restrictions; and (d) a visitor undertaking permitted activities pursuant to Appendix V of the rule may switch in to the Start-up category. This list is reproduced for those eligible to switch to the innovator category, with the addition of those in the start-up category.

Tier 1 (Investor)

The Tier 1 (Investor) Scheme has been tightened up in several ways:

1. There is now a requirement for investors to provide evidence of the source of any investment funds they have obtained within the last two years (up from 90 days at present)
2. As a corollary to this, investors must now have held the funds for a consecutive two-year period of time.
3. UK banks have a requirement to confirm they have carried out the checks they are required to make before opening an investment account
4. Applicants will no longer be allowed to invest in UK Government bonds unless their initial grant of leave was as a Tier 1 (Investor) Migrant under the Rules in place before 29 March 2019 and the date of application is before 6 April 2023.
5. The rules around investment in companies have become more strict, with longer definitions of active and trading UK registered companies, and further more detailed changes. These can be found under new paragraph 65A.
6. An Entry Clearance Officer must not have reasonable grounds to believe that the applicant is or was not in control of and at liberty to freely invest the money specified in their application for the purposes of meeting the requirements of the Tier 1 (Investor) visa.
7. Similarly, there must not be reasonable grounds to believe that any of the money has been or will be transferred internationally by means which are unlawful in any of the countries involved, additional to the current rule that it must not have been acquired by means of conduct unlawful in the UK.
8. Anyone who has held Tier 1 (Investor) Migrant status in the 12 months before their application will be granted 2 years rather than 3 years 4 months entry clearance.

Another change is that the requirements will be at a new Appendix A: Table 7 has been removed.

EU Settlement Scheme

A key change to the EU Settlement Scheme is that Zambrano carers and those with derivative rights to reside such as under Chen and Ibrahim/Teixeira are now included.

A Zambrano carer is defined as a person:

(a)With, by the specified date, a right to reside in the UK by virtue of regulation 16(1) of the EEA Regulations, by satisfying the criteria in:
(i) paragraph (5) of that regulation; or
(ii) paragraph (6)(c) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5); and
(b) without leave to enter or remain in the UK granted under another part of these Rules

A person with a derivative right to reside is defined as a person:

With, by the specified date, a right to reside in the UK by virtue of regulation 16(1) of the EEA Regulations:
(a) regardless of whether, in respect of the criterion in regulation 16(2)(b)(ii) of the EEA Regulations, the EEA citizen meets, or (as the case may be) met, the requirement in regulation 4(1)(c)(ii) of the EEA Regulations for comprehensive sickness insurance cover in the UK; and
(b) excluding a person satisfying the criteria in:
(i) paragraph (5) of regulation 16(1) of the EEA Regulations; or
(ii) paragraph (6)(c) of that regulation where that person’s primary carer is, or (as the case may be) was, entitled to a derivative right to reside in the UK under paragraph (5)

The Home Office appear to be giving thought to where easy changes can improve the clarity of the Rules. In particular, the use of bold in key places throughout Appendix EU is commendable.

Additionally, applications may now be made outside the UK, so long as required proof of entitlement to do so is provided, namely a valid passport or national identity card so long as such card has an interoperable biometric chip. In certain circumstances alternative evidence of entitlement to apply from outside the UK may be provided.

Note too, that a family permit system has been introduced. The proof will be in the pudding but the requirements appear consistent with those in Appendix EU.