Spouse Visa

There are new tier 2 minimum salary thresholds for non-EEA nationals as workers in the UK. Non-EEA nationals applying for Tier 2 are subject to the requirement that the salary they earn in the UK must be above a minimum threshold, as part of government policy to avoid undercutting wage markets by using low-paid immigrant labour. This threshold has been announced to be raised in 2 steps to £25,000 in Autumn 2016 and to £30,000 in April 2017 for experienced workers, with the minimum threshold for new entrants into the workforce staying at 20,800. ­These requirements make it more difficult for non-EEA migrants to the UK to obtain Tier 2 visas as they will need to be earning significantly more than the UK national average annual income of around £26,000.

These changes are based on the Migration Advisory Committee’s recommendations of the 19^th of January, which focuses on the government’s policy aims of reducing total immigration into the UK, and of controlling labour markets to regulate whether UK and EEA nationals or non EEA nationals have access to employment opportunities. Due to EU legal obligations, the UK must allow the free passage of EEA nationals into the state, and allow for their exercise of residence rights. This means that only the entering into the UK and continued residence in the UK of non-EEA nationals can validly be regulated, resulting in this tightening of restrictions regarding who can reside and settle in the UK. ­

Employers are dis-incentivised to hire non-EEA nationals as, excluding for ­certain professions, they have to conduct a ‘resident labour market test’ before offering a job to a non-EEA national. This resident labour market test is the advertising of a job to local applicants and hiring any local applicant who has all of the required skills and experience to undertake the position before offering the job to a non EEA national. The job should be advertised in two appropriate places, including usually Jobcentre Plus, and a newspaper or website, and only if the test produces the result that there is no local suitably-skilled individual who can take the job may the employer opt to hire a non EEA employee.

Certain professions are exempt from this, including nurses and professions on the UK National Shortage Occupation list. Non-EEA recent graduates can also still be hired by UK companies without the need for a resident labour market test. ­

In pursuit of the government’s desire to ‘simplify and streamline’ applications the Tier 2 visa category of Intra-Company Transfers will be unified so that the subcategories of Short- and Long-term Staff and Skills Transfers are integrated into the category ‘Intra-Company Transfers’. The ICT category will retain the subcategory of Graduate Trainees. ­09

In pursuit of the same policy aims the policy change additionally includes adding a 1000GBP certificate of sponsorship to be paid by the employer annually for each non-EEA national worker, or 364GBP for small or charitable sponsors. Certain groups will be exempt from this, namely Intra Company Transfer Graduate Trainees, and PhD level occupations, as well as non-EEA nationals who were on a Tier 4 student visa and have switched to a Tier 2 visa after completing their course of study.

The policy changes will come in in steps, with the first set of changes being made in Autumn 2016, and transitional phases ending in April 2017 to allow for employers and individuals to plan to accommodate them. The table below is an aid to explanation of the different effects of policy implementation to different categories of applicant.

For further advice in connection with requirements for applications for Tier 2 visas, or other routes to residence and settlement, please contact our immigration advisors in Glasgow on 07788882290 or via our online enquiry form.

The Immigration Act 2014 which came into force in April 2015 changed the rights of appeal of applicants refused a visa due to their protection claim being certified ‘clearly unfounded’ by the Home Office. While the threshold test of the grounds of an application for immigration being ‘clearly unfounded’ is high, the Home Office demonstrates its willingness to give certificates stating a claim is so, and refusing entry to applicants whose applications didn’t meet the standard of proof they require.

Guidelines on Certification of Protection and Human Rights are under Section 94 of the Nationality, Immigration and Asylum Act 2002 (clearly unfounded claims) and they set out the methods the Home Office should use in order to determine whether a protection claim is founded or not. The screening of claims is done by the Home Office with the aims as stated in the guidelines to ‘protect the integrity of the immigration system and deter unfounded claims’ through preventing appeals delaying removal from the UK, reducing the number of such claims they need to process, and saving money, where ‘protection and human rights claims are clearly unfounded’.

The vagueness of this ‘clearly unfounded’ test can make applying to the Home Office on grounds of needing permit to remain in or enter the UK for reasons of protection and human rights look exceedingly complex to would-be applicants. Applications where there is little or no substance to the claim, or where the evidence looks to be falsified, should expect to be certified ‘clearly unfounded’ and rejected. Applications in the category of Protection and Human Rights claims should be very carefully constructed to ensure that the relevant evidence is presented correctly and substantially to the Home Office, to remove reason for rejection of the claim.

The removal of the right to appeal for failed claims in the Protection and Human Rights category has since April 2015 meant that people who have overstayed their visas and wish to reapply via this route would risk removal from the UK if the claim fails, and applicants from outside the UK wouldn’t be granted entry. This means that the importance of the claim being accepted initially as having sufficient evidence and not being ‘clearly unfounded’ is very high, as remedies once a claim has been certified by the Home Office as so are very limited.

Applicants could seek a remedy in the UK only through judicial review of the certification decision, or could apply again from outside the country- an option which can be very dangerous for people at risk of being subjected to violence, imprisonment, or human rights abuses on returning to the country they seek to leave.

Common reasons that the Home Office often reject and certify Protection claims include claims based on a lack of employment options, unconfirmed medical conditions, lack of evidence regarding continuing study or work in the UK, the applicant being an adult without exceptional circumstances who could relocate without very significant obstacles, there being no evidence of the child the claim is based on, there being no child-parent relationship or the child being 18 or over, the child not having residency rights in the UK, relationships (of the type of marriages and civil partnerships) which aren’t substantial or durable, or which could be relocated without any exceptional circumstances. Claims based around the existence of a child or partner need to pay particular attention to fulfilling the evidentiary requirements of the Home Office so as to avoid being certified ‘clearly unfounded’.