| The last two weeks have been a roller cost in the | | | | monthly basis. The UK Border Agency has stated that |
| immigration world with good and bad news shocking in | | | | "where an application meets all the requirements of the |
| equal amount. This article provides a summary of the | | | | Immigration Rules but granting leave would exceed the |
| changes announced by the UK Border Agency and a | | | | grant allocation for the relevant grant allocation period, |
| peak at what might lie ahead for migrants wishing to | | | | the application will not be refused but no grant of leave |
| come to the UK in the future. | | | | will be made. Instead the application will be re-allocated |
| First and foremost, a word of reassurance for | | | | to the next period for consideration". |
| migrants already in the UK who will not be affected by | | | | Finally, the bar to qualify as Tier 1 General holder |
| the changes. The UK Border Agency seems to have | | | | under Appendix A, in terms of age, previous earnings, |
| learned from past experience, in particular the judicial | | | | qualifications and UK experience has been raised from |
| challenge brought by the HSMP forum, that immigration | | | | 75 points to 80 points. However, applicants who earn |
| rules should not be changed retroactively for individuals | | | | more than £150,000 will de facto meet the new 80 |
| who have make a commitment to be in the UK for the | | | | points threshold. |
| long run. | | | | The good news has not so far been widely publicized. |
| However, the above statement must be accompanied | | | | The Court of Appeal has openly questioned the |
| by a word of warning since the fate of the Borders | | | | constitutionality of the policy guidance when compared |
| Citizenship and Immigration Act 2009, which would lead | | | | to the Immigration Rules. |
| to an increase the length of time required to be eligible | | | | In its landslide judgment, in Pankina and others v |
| for nationality and the concept of "probationary | | | | Secretary of State for the Home Department [2010] |
| citizenship", remains today unclear. The government | | | | EWCA Civ 719, the Court seems to suggest that |
| has not said anything about these provisions and so | | | | there is a greater need in the decision making process |
| far so it is unknown whether they will implement them | | | | for discretion and common sense to be exercised in |
| in July 2011 or at all. | | | | favour of migrants especially in light of the fact that |
| In terms of recent changes, the UK Border Agency | | | | the policy guidance has not been established through |
| has announced the introduction of a English language | | | | the legislative route "Having £800 in the bank, |
| test in autumn 2010 for migrants wishing to enter the | | | | whether for three continuous months or simply at the |
| UK as the dependant spouse, civil and unmarried | | | | date of application, is no doubt some indication of this; |
| partner as well as fiancée and proposed civil partner | | | | but people who are able to meet the test may fall on |
| of someone present and settled or a British Citizen. | | | | hard times after obtaining indefinite leave to remain, |
| On 28 June 2010, the UK Border has also announced | | | | and others who fail it would, if allowed to remain, never |
| caps to theTier 1 and Tier 2 Schemes to limit the | | | | become a charge on public funds. The Home Office |
| number of migrants. The cap for Tier 1 General | | | | has to exercise some common sense about this if it is |
| applications (highly skilled migrants) will be set at 5,400 | | | | not to make decisions which disproportionately deny |
| until April 2011 whilst the cap for Tier 2 sponsored | | | | respect to the private and family lives of graduates |
| workers will be set at 18,700. | | | | who by definition have been settled here for some |
| The limit will not apply to applications for leave to | | | | years and are otherwise eligible for Tier 1". |
| remain under Tier 1 (General) or any application under | | | | The implications in particular for applicants who have |
| the Tier 1 (Entrepreneur), Tier 1 (Investor) and Tier 1 | | | | been refused leave for the falling short of £800 |
| (Post Study Work) sub-categories. In a nutshell, it will | | | | even if just for one day or few pennies are immense. |
| not apply to migrants already in the UK under the Tier | | | | However, even without a crystal ball, one might fear |
| 1 Scheme or intending to make an application to switch | | | | that the UK Border Agency will appeal against the |
| into the Tier 1 General Scheme. | | | | common sense determination advocated by the Court |
| These changes will come into effect on 19 July 2010 | | | | of Appeal. |
| and it is envisaged that the limit will operate on a | | | | |