Immigration routes for work-related relocation to the UK
By Lee Jackson
Posted: 11th September 2015 09:27There are a number of immigration routes available by which foreign nationals can relocate to the UK. The following article summarises the main work-related routes available.
It is far easier for nationals of the European Economic Area (EEA – i.e., the EU plus Iceland, Liechtenstein and Norway) and Switzerland to migrate to the UK than it is for non-EEA nationals, although it should be noted that Croatia only acceded to the EU on 1 July 2013 and is subject to transitional restrictions on its nationals wishing to access the UK labour market until 2018. Freedom of movement of workers is one of the fundamental principles of the European Union. Due to the primacy of EU law over domestic law, EEA nationals currently hold a privileged position over non-EEA nationals in terms of immigration to the UK. They do not need a visa. They are free to come to the UK to look for work. They are able to reside in the UK whether they are employed or self-employed. They can also reside here as a self-sufficient person or as a student provided they have comprehensive sickness insurance cover. After five years’ continuous residence in the UK, EEA nationals acquire the right to reside in the UK permanently. EEA nationals can also bring their non-EEA family members to reside with them in the UK.
The Government is currently seeking to renegotiate the terms of the UK’s EU membership. The renegotiation seeks to limit some of these free movement rights. A referendum on continued EU membership will then take place before the end of 2017. These developments may have a significant impact upon the ability of EEA nationals to relocate to the UK in the medium-term future.
In contrast to EU migrants, the UK is free to make its own rules in respect of immigration by non-EU migrants. The vast majority of migrant applications are made under the Points Based System (PBS). The most significant work categories under the PBS are investors, entrepreneurs, and work permit holders.
Tier 1 (Investor) Migrants
This route is for high net worth individuals making a substantial financial investment to the UK. In broad terms, investors need to show that they have a minimum of £2,000,000 of their own funds available to invest in the UK. Once a visa has been granted, the investment must be made within 90 days of entry to the UK. Investors can bring their spouse or partner and children under 18 with them. There is no English language requirement for investors until they apply for indefinite leave to remain – all other PBS applicants must satisfy an English language requirement.
Tier 1 (Entrepreneur) Migrants
This route is for migrants who wish to establish, join or take over one or more businesses in the UK. Applicants must normally show that they have £200,000 in funds available to invest in the business, although it is possible to share that amount between two people as an entrepreneur team. In addition to the business investment requirements, entrepreneurs must also show that they can maintain themselves and any dependants they bring with them. In order to obtain an extension of their visa after 3 years, entrepreneurs must show that they have created at least 2 jobs for settled UK residents.
The Government considers the Entrepreneur route to be subject to abuse. In 2013, it introduced a genuine entrepreneur test, which allows immigration officers to refuse applications if they are not satisfied of the applicant’s intentions even when all other criteria have been met. This has led to refusal rates increasing from about a third to a half of all applications.
Tier 2 (General) Migrants
This route is for skilled workers. In order to obtain a Tier 2 visa, the migrant must first obtain sponsorship from an employer who is a licensed sponsor. The rules are extremely technical. Different criteria apply depending upon whether the migrant’s occupation is one where there is a shortage of workers in the UK.
In April 2011, the Government introduced an annual cap of 20,700 Tier 2 visas, which is divided into monthly limits. In recent months, the cap has been reached more and more frequently, and preference has been given to applications from those earning higher salaries.
Tier 2 (Intra Company Transfer) Migrants
This route enables multinational employers to transfer their existing employees from outside the EEA to their UK branch for training purposes or to fill a specific vacancy that cannot be filled by a British or EEA worker.
One significant benefit of using this route is that the Tier 2 cap does not apply to Tier 2 intra company transfers. However, this route does not lead to qualification for indefinite leave.
General grounds of refusal
In addition to the specific criteria for each Tier, applicants must also not fall foul of the General Grounds of Refusal. These are designed to exclude people whose presence is undesirable in the UK. Factors such as an individual’s criminal record or adverse immigration history, including deception used in previous applications, can lead to refusal of entry or a lengthy ban from the UK.
Investors, Entrepreneurs and Tier 2 (General) Migrants can apply for indefinite leave to remain in the UK after five years’ continuous residence. There are accelerated routes for investors who invest larger sums and entrepreneurs who create exceptionally successful businesses.
PBS refusals do not attract a right of appeal to an independent judge, unless the decision engages the applicant’s human rights. In most cases where an application is made from abroad, it will be difficult to show that a refusal of entry clearance engages human rights.
Instead, the vast majority of adverse decisions are only challengeable by way of Administrative Review. This is an internal review by another member of staff – usually someone who works in the same office as the person who made the original decision. It is only possible to succeed if the original decision-maker made a case working error. In practice, this is a difficult threshold to cross, especially in cases where there is a dispute of fact.
Given the limited opportunities to get things right, and the potentially devastating consequences of getting things wrong, it cannot be stressed enough how important it is that the initial application is prepared as professionally and thoroughly as possible.
Over the last decade or so, UK government policy has become progressively more restrictive towards immigration. Current annual net migration to the UK is 330,000, an all-time high. However, the government’s stated aim is to reduce annual net migration to the tens of thousands. Scarcely a week passes without a new tightening up of the Immigration Rules being announced. A major new Immigration Bill is due to be published which will attempt to place further obstacles in the way of migrants. The Migration Advisory Committee is currently reviewing both the Tier 1 (Entrepreneur) and Tier 2 routes. It is inevitable that it will become ever harder to satisfy the requirements of the Rules and persons considering relocating to the UK should, where possible, avoid any unnecessary delay that might make it harder for them to achieve their objective.
Lee Jackson specialises in asylum and human rights work, as well as general immigration. Lee holds a law degree from the London School of Economics and a masters degree from University College London. He was called to the Bar in 1995. After qualification, Lee was a Legal Officer at the Refugee Legal Centre. He entered private practice at the Bar in 2000, where he represented applicants at all levels up to the Court of Appeal, before joining Gherson in May 2009. - See more at www.gherson.com