immigration

IMMIGRATION TO THE UNITED KINGDOM

INTRODUCTION

The statement of changes to the Immigration Rules (.HC395.) came into force on 1st October, 1994. HC395 seeks to consolidate all the changes which have been made to the United Kingdom (“U.K.”) Immigration rules since 1st May, 1990.

VARIOUS IMMIGRATION CATEGORIES

The various immigration categories can be divided into those for short stay or temporary purposes and those for long stay purposes leading to settled status.

For Short Stay Purposes:

A. Visitors (and “Business Visitors”)

Except for a “visa national”, a visitor need not apply for prior entry clearance to enter the U.K. Anyone who enters the U.K. as a visitor is expressly barred from taking employment and to do so is a criminal offence. In respect of persons coming to the U.K. for business purposes HC395 states that for a non European Economic Area national to qualify for entry in this capacity he or she must be “a person living and working outside the United Kingdom who comes to the U.K. to transact business (such as attending meetings and briefings, fact finding, negotiating or making contracts with U.K. businesses to buy or sell goods or services)”. It also states that the applicant must not “intend to produce goods or provide services within the U.K., including the selling of goods or services direct to members of the public”. The U.K. Home Office has produced a leaflet expanding on the persons who qualify for this category under the Immigration Rules. For example, a guest speaker at a conference may fall under the business visitor category, whereas a Project Manager would not. The maximum period of stay in the U.K. as a business visitor remains six months in any twelve month period. If any productive work is to be undertaken during a stay in the U.K., a work permit will usually be necessary notwithstanding the length of the proposed stay in the U.K.

B. Students

A student is admitted for “an approximate period depending on the length of his course of study and his means” to follow a course of studies at a university, other institutions of further or higher education, or private educational establishment. The student must enter the U.K. to spend not less than fifteen hours a week in organized daytime studies, and must show he or she can meet the cost of the course, as well as costs for maintaining himself or herself and accompanying dependants.

Most students are admitted with a condition “restricting” employment. From the 21 June, 1999 all non-EEA students studying in the U.K. will be deemed to have permission to work subject to certain conditions. Prior to June, students had to obtain prior consent from the Department of Education and Employment before taking up employment. Students are now deemed to have permission to work 20 hours per week during term time and full time during the vacation period.

Prospective students who have not yet been accepted for a particular course are admitted initially for six months with a “prohibition” on employment. If they obtain a place on a course of study within the six month period, they must submit an application to the U.K. Home Office so that their leave to remain may be extended and they are able to take on full student status.

The spouse and children under eighteen of a student are granted leave to enter for the same period as the student if they can be maintained and accommodated without recourse to public funds. The spouse of a student will be permitted to work without any restriction provided the student has been granted leave to enter and remain in that capacity for 12 months or more, the student and spouse will be cohabiting in the U.K. and both intend to leave the U.K. at the end of any period of leave granted to the student.

HC395 now allows both male and female spouses to qualify for entry as dependants of students.

C. Working holiday-makers

This category allows young Commonwealth citizens to travel to the U.K. for an extended holiday. U.K. Home Office guidance states that they are permitted to work part-time throughout the 2 year period or full-time for a one year period.

Individuals in this category will have to meet the following requirements:

. they must be Commonwealth citizens;

. they must be aged between 17 and 27 years old (inclusive) when given leave to enter in this capacity;

. they must intend to leave at the end of the holiday and have the means to pay for an onward journey;

. they must be single, or married to a person who is accompanying them and who also meets the requirements for entry under this category with a view to spending a working holiday in the U.K.;

. they must not engage in business in the U.K., provide services as professional sportsmen or entertainers or otherwise pursue a career in the U.K.;

. they must not have dependant children aged five or over, or who will reach the age of five before the applicant completes the working holiday, or have any other commitments which would require them to earn a regular income;

Entry clearance must be obtained by the applicant and his or her dependents from a British Mission abroad prior to arrival in the U.K.

HC395 also states that people who have previously spent time in the U.K. under this category will not be able to seek leave to enter as a working holiday-maker again once two years have passed since they were first granted leave to enter under this category. The old rules permitted people under this category to re-enter for a total period of two years at any time after first being granted leave to enter.

D. Training or Work experience

The Training and Work Experience Scheme (“TWES”) is administered by the Department of Education and Employment (“DEE”). Applications for TWES permits must be made by an established U.K. employer. Applications should be submitted while the proposed employee is abroad but, although there is a general prohibition upon switching category whilst in the U.K., it is possible to switch from student status to that of a TWES permit holder. The employees may not however commence their training or work experience until the application has been approved and their passport has been endorsed by the Immigration Service or, in the case of in-country applications, the U.K. Home Office. The TWES scheme was revised in January 1999, and is now divided into three limbs each with separate criteria.

a. Training for a Professional Qualification:

This is the new name for the old training category. The rules for training are that it: must lead to a recognized professional or specialist qualification at post graduate level and the employer should be registered or approved by an appropriate professional body. The trainee should have a bachelor degree or equivalent, and the training should be related to such qualifications. The training should be for a minimum of 30 hours per week, excluding any time for associated study, and the trainee should be engaged on the same salary and conditions of employment as an EEA trainee. The period of training should be agreed in advance. Where a qualification takes a number of years to obtain, approval may normally be given for an initial period, which will then be extended provided the trainee is making satisfactory progress. The maximum training period is three years. A maximum of three possible sittings at any examination are normally allowed.

b. Graduate Training Programme:

This new category allows companies that have significant trading operations overseas, to transfer graduate employees to the U.K. as part of their established in-house graduate training programme. The trainees are expected to have graduated within the last 24 months and are required to undertake a structured training programme, with set training or “learning” objectives, which form part of the company’s established recruitment and training procedure. The programme in the U.K. should not normally extend beyond a three year period and it must be the company’s intention to employ the person overseas at the end of the programme.

c. Work Experience:

The rules for work experience are that it must be for a fixed period of time with normally a maximum of one year being allowed (although this may be extended for a further one year in exceptional circumstances). The work should be at managerial level or at least equivalent to a level four National or Scottish Vocational Qualification. It should be a minimum of 30 hours per week, excluding any time for associated study.

Following a review of this category, the requirement that the proposed employees should be between the ages of 18 and 35 and at or near the start of their career was removed. In addition, the requirement that they should only receive a modest spending allowance was amended. The general rule is now that the employees’ pay and conditions should be no more than those given to resident workers doing the same work experience. The overseas nationals are still required to show that they have previous relevant experience or the appropriate academic or vocational qualifications to benefit from the work experience. They should be employed in a supernumerary capacity and should not be filling a job, unless it is a head for head exchange. A full wage can only be paid if the employees are coming to the U.K. under an exchange agreement, or if the proposed employees will be paid by an overseas employer or organization.

The TWES categories do not lead to settlement. TWES permit holders must sign a declaration at the time of application confirming that they are aware they will not be allowed to transfer from the TWES Scheme to ordinary employment and that they intend to return abroad at the end of the approved period. The employers must sign similar declarations accepting that the workers will return abroad upon completion of the agreed period, and that they are aware that a transfer to ordinary employment afterwards will not be allowed.

For Long Stay Purposes:

E. Retired persons of independent means

This category replaced the previous .Person of Independent Means. category. A person who seeks entry to the U.K. under this category must show the following:

. must be at least 60 years of age, whereas in the past no age limit was specified, (although the U.K. Home Office’s preference for applicants near normal retirement age has begun to emerge through Immigration Appeal Tribunal case law);

. must have an income of at least ￡25,000 per annum without needing to work in the U.K. or elsewhere in the world (previously a minimum income of ￡20,000 per annum or capital amounting to at least ￡200,000 was required);

. must be able to demonstrate a close connection with the U.K.; and

. must intend to make the U.K. his or her main home.

Entry clearance must be obtained from a British Mission abroad prior to arrival in the U.K.

Ordinarily, four years leave to remain in the U.K. will be granted with a prohibition on employment. Thereafter, an application for indefinite leave to remain in the U.K. may be made.

F. Investors

The Investor category created under HC395 is a new category of individuals who are able to enter and reside in the U.K. For an applicant to obtain an entry clearance certificate for this purpose, the applicant will need to satisfy the requirements outlined below. In addition, the applicant will need to satisfy the entry clearance officer that he or she has the requisite minimum capital required to qualify under this category. The investor may also have to show the source of that capital which he or she intends to bring into the U.K., and must demonstrate that he or she intends to make the U.K. his or her main home (it should be envisaged that the investor would spend at least 75% of his or her time in the U.K.).

Where the applicant intends to seek entry to the U.K. as an investor, the applicant must have own unencumbered funds which are disposable in the U.K. amounting to not less than ￡1,000,000. He must intend to invest not less than ￡750,000 of the capital in active and trading U.K. registered companies (other than those principally engaged in property investment), and may not make the investment by way of deposit with a Bank, Building Society or other enterprises whose normal course of business includes the acceptance of deposits. The applicant must be able to maintain and accommodate himself or herself and any dependants without recourse to public funds or taking employment. The U.K. Home Office envisages that the individual would either be engaged in monitoring his or her own investments and/or be appointed as non-Executive Director of any of the companies in which the individual has invested capital. The directorships which the individual would hold should not, however, be remunerated nor should they involve the investor in performing any duties for the companies concerned other than those requiring him to attend the meetings of the Board of Directors and/or of the shareholders.

A person seeking admission for the purpose of investing in the U.K. must hold a current entry clearance certificate issued for that purpose. Application for Entry Clearance must be made at a British Mission, and are currently taking a number of months to process. A person who has obtained such an entry clearance certificate should be admitted for a period not exceeding twelve months, and then subsequently a three year block extension which would enable him to accumulate four years under this category with a view to applying for indefinite leave status, followed a year later by an application for naturalization as a British citizen.

G. Person intending to establish themselves in business

The self-employed businessmen category has been renamed .Persons intending to establish themselves in business.. HC395 sets out the three types of business activities which will be allowed under this category, namely:

. sole trader;

. participation in a partnership; or

. ownership of a company registered in the U.K.

Entrants under this category must meet a number of detailed requirements. For example, the minimum capital to be invested is ￡200,000. The rules contain a requirement that an entrant must have additional funds to support himself or herself and dependants in the U.K. until the new business provides an adequate income. In addition, it must be shown that the business will create at least two new full-time jobs for persons already settled in the U.K. Entry clearance must be obtained from a British Mission abroad prior to arrival in the U.K., a process which may take several months.

H. For Employment

The general rule is that no foreign national may undertake employment in the U.K. without a work permit. The main exceptions to this general rule concern:

. EEA nationals from Austria, Belgium, Denmark, Eire, Finland, France, Germany, Greece, Holland, Iceland, Italy, Liechtenstein, Luxembourg, Norway, Portugal, Spain and Sweden.

. Gibraltarians

In addition to the nationality of the applicant, it is necessary to consider whether any of the permit free employment categories apply.

[Permit Free Employment]:

As the name suggests for certain categories of employment a work permit is not required. Applications are made by applying for entry clearance from a British Mission abroad prior to arrival in the UK.

a. Commonwealth citizens with U.K. ancestry

Upon proof that one grandparent (paternal or maternal) was born in the U.K. or Channel Islands, a Commonwealth citizen who wishes to take or seek employment in the U.K. will be granted an entry clearance for that purpose and does not require a work permit. On entry, such a person will be admitted for an initial period of four years.

b. Representatives of overseas firms which have no branch, subsidiary or other representative in the U.K.

The sole representative category has been renamed “Representatives of overseas firms which have no branch, subsidiary or other representative in the U.K.”. Intending entrants in this category must meet the following requirements which did not previously apply:

. they must seek entry as a senior employee with full authority to take operational decisions;

. they must intend to establish and operate a registered branch or wholly-owned subsidiary of their overseas employer (thereby excluding any other legal entity or type of activity);

U.K. Entry Clearance must be obtained prior to entry to the U.K., and this process may take a number of months. Entrants in this category will now be admitted to the U.K. for an initial period of twelve months, whereas previously it would have been four years.

A three year extension of the initial one year stay in the U.K. will be granted if the sole representative is able to provide the following additional information to the U.K. Home Office:

. evidence of the existence of the registered branch or wholly-owned subsidiary of their overseas employer; and

. evidence that their overseas employer still has its headquarters and principal place of business outside the U.K.

There are also categories for representatives of overseas newspapers, news agencies and broadcasting organizations, private servants in diplomatic households and overseas government employees, ministers of religion and airport operational ground staff.

[Work permit employment]:

U.K. work permits are issued by the Department of Education and Employment (.DEE.). Applications for work permits must be made by a U.K. employer which is established and trading in the U.K. on behalf of the foreign employee. The foreign employee must be outside the U.K. at the time when the application is submitted to the DEE. The employee may not take up employment until the work permit has been issued, and the passport is endorsed on arrival in the U.K. to indicate that the employee has entered the U.K. as a work permit holder. The work permit allows a named foreign employee to carry out a specific job for a particular U.K. employer. The U.K. employer must notify the DEE of any change in the work permit holder’s terms and conditions of employment. If the foreign employee wishes to change from one U.K. employer to another, the new U.K. employer must apply for a fresh work permit on the employee’s behalf as work permits are not transferable.

A person will be eligible for a work permit if the person has recognized professional qualifications; is a manager or executive; is a highly qualified technician having specialized experience; is a worker with high or scarce qualifications; or is a person whose employment, in the opinion of the Secretary of

State for Employment, is in the national interest.

Where the foreign employee has at least two years of relevant experience abroad, and the last six months’ experience was acquired within the same group of companies abroad, the DEE will consider the application by the U.K. employer without requiring the position to be advertised. However, where the foreign employee has less than six months’ employment history within the same group of companies abroad, the DEE will require the U.K. employer to provide evidence that adequate efforts have been made to fill the vacancy from the local U.K./E.E.A. labor market. To meet this requirement, when submitting the work permit application on behalf of the foreign employee, the U.K. employer will have to enclose a copy of an advertisement which appeared in a U.K. broadsheet newspaper (and any relevant professional journals where necessary), together with details of all candidates who responded to the advertisement and reasons why each was considered unsuitable for the position.

A work permit holder whose permit is issued for twelve months or less will only be admitted to the U.K. by an immigration officer if the permit holder can satisfy the officer that he or she intends to leave the U.K. at the end of the period of the approved employment. Work permits may be issued for a maximum initial period of 48 months. Thereafter, the U.K. employer may apply to the DEE to extend the work permit, or the foreign national may apply to the Home Office for indefinite leave to remain in the U.K.

The Asylum and Immigration Act 1996 imposes fines of up to ￡5,000 on an employer who takes on a worker who does not have leave to enter or remain in the U.K., or whose leave has expired or is subject to a prohibition on taking up employment. Before the Act came into force in January 1997, sanctions were only imposed upon workers who took up employment in breach of their U.K. immigration status (i.e. not on their employers).

I. Dependants of certain categories of entrants

The categories concerned are:

. students;

. training and work experience permit holders;

. self-employed businessmen;

. retired persons of independent means;

. investors;

. persons in permit free employment;

. work permit holders.

The spouses of entrants under the above categories must satisfy the following conditions in order to enter as dependant spouses:

. they must be married to the entrant;

. they must intend to live with the entrant as man and wife during their stay;

. they must, if they are already under another immigration category and wish to fall under the dependant spouse category, leave the U.K. and obtain clearance to enter under the latter category;

. there must also be adequate accommodation for the parties; and

. they must be able to maintain themselves without recourse to public funds.

The children of entrants under the above categories are subject to the following rules if they wish to enter as dependants:

. they must, to enter and remain in the U.K. as dependants, enter with both parents or enter the U.K. in order to be re-united with parents already there;

. entry with one parent is permitted if they are to join the other parent who is already in the U.K.;

. in exceptional circumstances (for example, following the death of a parent, the divorce/separation of the parents, or for other .serious and compelling reasons.) entry with only one parent will be allowed.

“SETTLEMENT” IN THE U.K.

The Immigration Act 1971 states that a person is .settled. in the U.K. if that person is ordinarily resident in the U.K. without being subject under the Immigration Rules to any restriction on the period for which he or she may remain. A person who resides in the U.K. and who has indefinite leave to remain stamped in his or her passport will be viewed as “settled”.

A settled person can take or change employment without governmental permission. However, such a person is subject to deportation if he or she commits a serious crime or if the person’s presence is considered as not conducive to the public good.

A. Applying to become “settled” in the U.K.

These persons will have originally been admitted to the U.K. with limited leave to remain under HC395 in categories including:

. work permit holders

. persons intending to establish themselves in business;

. retired persons of independent means; and

. investors.

Such persons, together with their spouses and dependent children, may apply to have the time limits on their stay removed if they have been continuously resided in the U.K. in one of the above categories for four years or more. Applications for removal of the time limit are considered in the light of all relevant circumstances including, in the case of a person in employment, whether the employer wishes to continue to employ the person.

In practice, the U.K. Home Office may disregard absences from the U.K. of not more than three months during each of the four qualifying years where a satisfactory explanation is provided for the absences. If there are longer absences, discretion may be exercised in the applicant’s favor or a further period of limited leave may be granted.

Where an application is successful, the foreign national’s passport will be stamped with an endorsement indicating that the holder has indefinite leave to remain in the U.K.

B. Maintaining “settled status” in the U.K.

Unlike those with limited leave, persons who are settled in the U.K. are treated as returning residents when they travel abroad and re-enter the U.K. They will be re-admitted to the U.K. upon presentation to an Immigration Officer at the port of entry of a current passport containing the indefinite leave endorsement made by the Home Office. However, persons who leave the U.K. for a period in excess of two years will forfeit their settled status for immigration purposes, as their indefinite leave to remain in the U.K. will lapse. Where a person’s U.K. settled immigration has lapsed due to excessive absence from the U.K., any attempt to re-enter the U.K. must then be made under another category of HC395 for which prior entry clearance may be necessary.

CITIZENSHIP

A. By birth

A person born in the U.K. after 1st January, 1983 becomes a British citizen at birth, if at the time of birth his or her father or mother was a British citizen or was settled in the U.K. (i.e. had indefinite right to remain in the U.K.) This person has an automatic right to apply for a British passport.

B. By descent

A person born outside of the UK may be British where at least one parent is a British citizen other than by descent. Where the parent is British by descent then citizenship will only be passed if the parent was serving abroad in Crown Service or a designated service or in an Institution of the European Union having been recruited in the U.K. or European Union respectively.

C. By registration

A British Dependent Territories’ Citizen, a British National Overseas Citizen or a British Protected Person who has ordinarily resided in the U.K. for five years has the right to be registered as a British citizen.

The applicant must be present in the U.K. for five years prior to the application, and without absences of more than 450 days during the five years. There must be no breach of the immigration laws throughout the five year period; and in the twelve months immediately before the application, the applicant must have been free from any restrictions on the length of stay in the U.K., and must not have been absent for more than 90 days in total.

A Certificate of Registration will eventually be issued by the U.K. Home Office, which the holder may present to the Passport Office to obtain a British passport.

D. By naturalization

a. By a person settled in the U.K.

A foreign national may become naturalized as a British citizen in accordance with the provisions of the British Nationality Act 1981. An applicant for naturalization must be of good character, and satisfy the five year residence requirement (i.e. should have spent no more than 450 days outside the U.K. during the five years immediately prior to the date of the application). The applicant should have been “settled” (see above) for the purposes of U.K. immigration law for at least 12 months, and must not have been absent for more than 90 days in total during the 12 months prior to the applications. The applicant should normally have sufficient knowledge of the English, Welsh or Scottish Gaelic languages, as the case may be. More importantly, the applicant should intend to live principally in the U.K. upon becoming naturalized. The U.K. Home Office does have discretion to approve a naturalization application even though the applicant will be residing outside the U.K.

The dependent spouse and children of an applicant for naturalization as a British citizen also have the right to be included in the application, provided that they have been in the U.K. with the main applicant during the five year qualifying period. Certificates of Naturalization will be issued to dependant applicants aged 16 years and over, and Certificates of Registration to those aged under 16 years. These Certificates, together with the appropriate application forms and fees may be presented by the holders at a Passport Office in the U.K., to obtain a British passport.

b. By the spouse of a British national

A foreign national who is the husband or wife of a British citizen may also make an application to be naturalized as a British citizen. The spouse must be aged at least 18, of good character, and married to a British citizen on the date of the application. The spouse must also satisfy the three year residence requirement for spouses (i.e. he or she should have spent no more than 270 days outside the U.K. during the previous three year period, and no more than 90 days outside the U.K. during the 12 months immediately prior to the date of the application).

An alien or a Commonwealth citizen who did not apply for registration before 31st December 1988 as a British citizen can now become a British citizen only if he or she applies for naturalization.