Exclusive Q&A On Immigration Law with Rahul Batra – Hudson McKenzie

Have there been any recent legislative changes or interesting developments?
 
New changes to the Immigration Rules come into effect on Tuesday 1 October 2013, designed to bring “greater flexibility” for businesses, workers and visitors.
 
Key changes include the following:
 

• removing the current requirement for Tier 2 Intra Company Transfer migrants extending their permission in the UK beyond 3 years to satisfy an English language requirement;
• waiving the restriction prohibiting Tier 2 General migrants from owning more than 10% of the shares in their sponsoring organisation if the migrant earns a salary package of £152,100 or more in the UK; and
• expanding the activities that a business visitor can undertake in the UK, to include the following additional permissible activities:

 -        Internal audits.  Internal auditors from global corporations can now enter the UK as business visitors to undertake short internal audits.  Previously such auditors were required to enter the UK under Tier 2 Intra Company Transfer, and were then prevented by the cooling-off period from returning to the UK under Tier 2 for 12 months;

-          Corporate training.  In provisions designed to be of particular benefit to third party contractors, business visitors can now receive corporate training in the UK, provided the following criteria are met: the training is for the purposes of the visitor’s employment overseas; it is delivered by a UK company that is unconnected to the visitor’s corporate group; and the main activity of the UK company is not the provision of training.
 
Registered Traveller Pilot Scheme
 
Mark Harper, Minister for Immigration, has announced a new ‘Registered Traveller’ pilot scheme which came into force on 24 September 2013.
 
The scheme is initially open to selected nationals of Australia, Canada, Japan, New Zealand and the United States who have travelled to the UK four or more times in the preceding fifty-two week period prior to enrolment, and who are coming to the UK as visitors.  In its initial pilot stages, the scheme will only operate at Heathrow and Gatwick airports, and is currently only open to nationals of the above countries who have also previously been an IRIS member.
 
To successfully enrol on the scheme, applicants must:

• be a national of Australia, Canada, Japan, New Zealand or the United States of America;
• be over 18;
• have visited the UK at least 4 times in the last 52 weeks;
• be registered for the iris immigration registration system (IRIS); and
• be coming to the UK as a visitor (including business visitors).

 
The scheme offers the following benefits to the relatively limited number of persons eligible to enrol at this stage:
 

• users will be able to access expedited clearance processes at Heathrow and Gatwick border control broadly in line with those enjoyed by UK/EEA nationals;
• users will not be required to fill out landing cards; and
• users will be able to use the UK/EEA channels at border control.

A majorconcern among many immigration lawyers is the slow bureaucratic process which accompanies visa applications.  Is it possible to fast-track this process and if not, how do you ensure the application process is as smooth as possible?
 
The UK offers a fast track process for visa applications from certain countries for an additional premium fee.  For example, in the US the application can be submitted via a registered agent where they will decide upon the application within 48 hours of submission.  In India for example applicant can apply for a business visit visa to be issued on the same day. 
 
An important aspect of any visa application is careful preparation in advance and submitting appropriate documents with an application.  At Hudson McKenzie we ensure that proper documents are submitted so as to ensure a visa is issued in the shortest time frame as possible.
 
Do you expect to see arelaxation of the rules once the economy improves?
 
There are no signs of the existing UK immigration system being relaxed in the foreseeable future.  David Cameron has promised to halve net immigration to Britain by the next election — a promise he seems to have made because it sounded good in a speech, not because it was really achievable.  The problem is that he has no control over the EU nationals who come to settle.  So the only way he can meet his target is to deter non-EU nationals.  And if Britain is to be deluged by Bulgarians and Romanians, as the newspapers keep telling us, then the only way the Prime Minister can meet his target is to kick out an equal number of us former colonials.  Or make the immigration process so unbearable that immigrants give up.  UKIP doesn’t want immigrants here either; nor, obviously, does the BNP.  Theresa May declared recently that she was abolishing the UKBA, citing its ‘closed and secretive’ culture and 310,000-application backlog.  If you make sure a system is broken enough, people will just give up trying to work within it and leave.
 
The truth is, a so-called ‘immigration cap’ is a fallacy for any EU member country — foreigners from all over Europe pour into Britain every day availing themselves of jobs and state-of-the-art healthcare without any hassle at all.  There’s nothing shocking in this.  That’s just how open borders work.  But in this new immigrant-averse Britain, there is only one group left to push around, and that is non-EU immigrants.  To make up for the torrent of EU immigration, the Home Office has opted to torture Non-EU immigrants with ever-more labyrinthine bureaucracy and rising fees.
 
As a result of globalisation, many clients are looking for law firms who can deliver an international service.  How have client expectations of lawyers’ abilities and expertise changed over the years?
 
This is very true as clients now look for a ‘one-stop’ service for all their immigration matters.  As companies go global, they have staff moving across different countries/continents.  As a result they often have immigration requirements for different countries.  This is where a global immigration firm like ours can play a major role.  Clients expect a single point of contact for all of their immigration cases and proper coordination of all global applications is paramount.
 
What are the main challenges facing clients who are trying to move employees into your country?
 
The UK’s immigration system has undergone a major change since the advent of points based system in 2008.  A major change that was introduced last year is the cooling-off period for Tier 2 applicants where anyone on Tier 2 visa must stay outside the UK for at least one year before returning to the UK if their leave expires whilst outside the UK or have completed their stay in the UK.  There are certain exceptions to this rule e.g. anyone earning £152,500 and above are not affected by this change.  This is damaging the UK economy as businesses are unable to retain the best talent and it is proving to be increasing difficult for companies to remain competitive given the world has undergone massive globalisation where a country cannot survive in isolation.  A classic example is the debate on UK leaving the EU, which I feel is going to have a herculean effect in a negative way should UK decide to leave.  All major banks and companies thrive on hiring international talent which not only brings wealth of experience but opportunities for growth from those countries. 
 
In an idealworld what would you like to see implemented or changed?
 
The control of immigration has become overly complex and burdensome.  In 1971 the immigration rules were just 20 pages long and gave a wide discretion to the Immigration Officer as to how the policies were implemented.  Such discretion allowed for a much more pragmatic approach to immigration control.  By contrast the Immigration Rules in 2013 are massively complex with interlocking policies between the core immigration rules and the appendices, some of which are arguably contradictory and is other cases go strictly against the underlying objective of a particular rule.
 
The now defunct UKBA sought to simplify the immigration rules with the introduction of the points based system.  The objective was to create a set of rules where there was no discretion and the applicant either met the rules or failed.  These rules were originally underpinned by policy guidance on how each rule operated.  This was subsequently found to be unlawful in terms of applications being refused because of an applicant’s failure to meet the requirements set out in guidance as opposed to the actual immigration rule.
 
Rather than simplify the immigration rules, the introduction of the Points Based System and the subsequent centralisation of decision making where caseworkers have had all discretion withdrawn has led to a situation where the average applicant is unable to comprehend the requirements of an application.  The entire system of Immigration Control needs to be rewritten from scratch.