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Reduction of sponsor rating for Tier 4 sponsors

The government announced previously that they will be placing tighter controls on universities and colleges that sponsor students coming to the UK.

Under the current provisions those institutions who wish to maintain their ‘Highly Trusted Sponsor’ status must ensure that no more than 20% of their proposed students are refused, as of November 2014 this figure will reduce to just 10%.

The change follows a major shakeup for UK immigration rules and is supposedly a direct response to ‘bogus’ students being sponsored to come to the UK.

Institution’s now have until November to review their admissions policy and procedure, in preparation for the changes to take effect. However the main question here is who these changes will affect and how.

The sponsorship system

Currently anyone wishing to come to UK as student under the Tier 4 category needs a sponsor and any institution wishing to take on new foreign students needs to be a sponsor.

Thus institutions are required to apply for a sponsorship licence and ensure they continue to meet their duties and responsibilities throughout the time the licence is held. They are then able to review and assign Confirmation of Acceptance for Studies (CAS) to prospect students. The student will then apply using this CAS reference for their Tier 4 visa.

The changes in practice

From November 2014 the UKVI will use the following factors to assess whether an institution should be retain ‘Highly Trusted Status’.

–   Their refusal rate – which must now be below 10%

–   Their enrolment rate i.e. the amount of students with an assigned CAS who enrolled within the given time

–   Course completion rates i.e. the amount of enrolled students with an assigned CAS who completed their course

The change will mean that the UKVI can take into account refusals from November 2013 which were based on the determination that the applicant was not a genuine student.

For renewal applications from November 2014 to 31st July 2015 the UKVI will assess CAS data from the 1st August 2014 onwards. However from 31st July 2015 all CAS data from the preceding year will be assessed.

Who will be affected?

It seems clear that all those on the Tier 4 Sponsor’s register will be affected by this change – the guidance states that smaller institutions (i.e. those with less then 50 CAS for assessment) will be assessed at the UKVI’s discretion. The guidance lists a non-exhaustive subjective list on what will be considered, taking into account the reasons for refusal and the institutions previous history.

What will be the effect?

The most obvious answer would be that sponsors will have to show even stricter due-diligence when proposing to sponsor a new student. However applying strict regulated admissions process does not guarantee that the sponsor is free from the negative effects of this stricter approach – in fact many institutions many find that the refusal rate is simply out of their control.

It is no secret that within the regimented requirements of the Points Based System, refusals can simply be down to Entry Clearance Officers mistake or the fact that a document does not meet the format expected. Thus placing much emphasis on applicant’s fighting unwarranted refusals; as the guidance states that those students with ‘live appeals’ will not be included in the new refusal rate. It is even more vital now that institutions do not simply issue another CAS to the student without first seeking advice on the effect of the refusal and possible next steps.

What is clear from these new changes is that more and more institutions and applicants may have to seek additional guidance, not only to ensure they meet the requirements expected but to also address what to do if they are found to fall foul of these tighter controls.

Perhaps the most negative effect of this new refusal rate will be the message this sends out to prospective foreign students. With the UK being a desirable country in which to study, this new change sends out a considerable negative message to those selecting where they continue their study and decline in new foreign students to the UK can be expected.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

Should the United Kingdom leave the European Union?

Update: This blog post was written before the UK made the decision to leave the European Union. Find out our latest information on how immigration may be affected by Brexit here.

Since the recent announcement of the United Kingdom’s Prime Minister that decided to make the words and opinions spread concrete, if he, David Cameron, is re-elected in 2015 and if Europe hasn’t been able to sort out its internal problems he will organise a referendum in 2017 about the following question: Shall the United Kingdom remain a state member of the EU or leave it in toto? If the majority goes for “no”, the United Kingdom would exit the European Union in 2020.

To begin with, the United Kingdom is one of the biggest sponsors of the European Union, giving each year over €8,000,000,000. Leaving the European Union would allow the United Kingdom to invest these funds on projects on projects of its own or to bail out itself. Furthermore, leaving the European Union would allow the United Kingdom to free itself from certain legislations compulsory for the members but that penalize the United Kingdom, such as the maximum working hours per week being 48. According to recent figures,this is costing around €9,000,000,000 to the British companies and taxpayers.

Yet, if the United Kingdom was no to be part of the European Union as are Switzerland and Norway for example, it would be harder to negotiate contracts with emerging markets. In the worst case, the United Kingdom could still pay taxes but this would subsequently lead to a loss in competitiveness compared/with to its European neighbours. Moreover, even though the €8,000,000,000 that the United Kingdom gives to the European Union is a great contribution, it is not to forget that being part of it gives a lot of advantages too. 9/10 business managers would want the United Kingdom to remain in the European Union. Furthermore, the financial sector is among the most willing for the United Kingdom to remain in the European Union, as it is afraid that the weigh/influence of the City would decrease, as it is known to be the preferred platform for euro transactions.

Overall, even though leaving the European Union could benefit the United Kingdom regarding certain sectors, it would mainly be a disadvantage as finance takes an important place in the United Kingdom’s economy.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

The latest changes to the UK Tier 1 Entrepreneur visa

The Home Office announced last month that the number of applications to enter the UK under the Tier 1 Entrepreneur visa scheme had risen from only 118 in 2009 to almost 10,000 in 2013. The number of these applications granted by border officials has risen dramatically from 199 in 2011 to over 3000 in 2013.

The entrepreneur visa scheme was introduced as a way of continuing to encourage migrants from outside of Europe to come and set up their businesses in the UK, along with all the obvious benefits these bring to the country’s economy. At a time when economic recovery is the primary political objective, such benefits are of understandable importance.

The encouragement comes by rewarding such entrepreneurs with a UK visa, which, after a set number of years, proceeds to leave to remain in the country indefinitely (ILR) and thence British nationality, providing that they satisfy all the requirements of the visa and, of course, possess the requisite funds. This is the reward offered for migrants who come to the UK and stimulate the country’s economy.

A recent study entitled ‘The Report; Migrant Entrepreneurs: Building Our Businesses, Creating Our Jobs’, commissioned by the Centre for Entrepreneurs and online company DueDil, suggests these obvious benefits to the country are clear, producing figures emphatically justifying the scheme.

According to the report, there are 456,073 immigrant entrepreneurs working in the UK, and they have founded 464,527 businesses, employing 8.3m people. The report also goes on to find that migrants are more likely to be entrepreneurs: 17.2% of non-UK nationals have started their own business, in contract to only 10.4% of British nationals. Yet, despite this enormous benefit to the UK and a sensible rationale behind the visa scheme, the Tier 1 Entrepreneur visa has drawn a fair amount of attention in political discussion, coming in for a good deal of criticism.

Since the scheme’s introduction we have seen changes progressively making the visa application process more difficult, and the requirements more exacting. After the introduction of the notoriously tough ‘genuine entrepreneur’ test, other changes to the ways in which applicants can demonstrate the necessary funding (either £200,000 or £50,000, depending on the specific category) have made the visa significantly more difficult to obtain.

Just recently, at the start of this month, the government added further changes designed to tighten up the process. Suggestions that mysterious and faceless organised gangs have been taking advantage of the scheme with ingenious scams to allow migrants free roam to take up work in the UK did not take long to follow, along with other scaremongering sound-bites of phoney applicants exploiting our immigration system.

Thankfully for all James Brokenshire MP rode in to the rescue with new changes to the rules designed to make it more difficult to obtain an entrepreneur visa. His anti-immigration sword cut swiftly, to the delight of supporters of the Tory government.

Our reforms have cut net non-EU migration to levels not seen since the 1990s and slashed overall net migration by a third since its peak under the last government,” declared Brokenshire triumphantly, as he wiped down his number-stained blade.

And we will not hesitate to take firm action to protect our immigration system further – particularly when there is evidence of criminals targeting what they think are weaknesses in the rules.

As the evidence behind such claims has been kept conveniently out of the public eye, it is difficult to see how this could genuinely be a widespread practice, especially given that the Entrepreneur visa doesn’t actually give migrants the right to work in the UK outside of their own business venture. And neither do the Home Office figures setting out the high proportion of successful applications seem to support this depiction of foul play behind entrepreneur visas.

Nevertheless, the Entrepreneur visa remains a popular battleground in Parliament and in the media, and it is likely that the government will continue to respond with tougher measures making it more difficult for entrepreneurs from abroad to obtain the necessary paperwork to enable them to start up their businesses in the UK, and so to bring the investment and employment benefits which are so beneficial to the country’s economic wellbeing, and so badly needed.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

judicial retreat under political pressure.

The long awaited case of MM v Secretary of State for the Home Department [2014] EWCA Civ 985 was finally decided last week, and the outcome certainly does not make happy reading.

The judgment in this much discussed test case, examining the minimum income threshold set out in the Immigration Rules for spouses seeking to enter the United Kingdom, has been roundly criticized as a judicial retreat in the face of political pressure. This short article will not go over the judgment in detail again; instead I wish to remark upon the constitutional significance of the judgment, and to set it within the wider picture.

Many advocates had hoped that the current political climate, which has led to wholesale attempts to be ‘tough’ on immigration found in the new Immigration Act 2014, would not prevent the judiciary from taking a strong stance in favour of justice and against rules which are plainly unfair and discriminatory. Sadly, those advocates have been severely disappointed by this deferential judgment handed down in the Court of Appeal by some of the most senior immigration judges, and brightest legal minds, in the country.

The judgment is a very long and, frankly, a fairly unconvincing one. Lord Justice Atkin’s leading judgment starts out with some promise, as he pays homage to the rather self-evident fact that:

“the Secretary of State plainly is under a common law duty not to promulgate an [immigration rule] that is discriminatory, manifestly unjust, made in bad faith or involves “such oppressive or gratuitous interference with the rights of those subject to them as could find no justification in the minds of reasonable men”.”

But as always, this will be a question of degree to be decided by judges, and given that the case goes on to hold that the rule itself does not fit into this category, these appear to be nothing but empty words, (not so) stealthily sidestepped under what must have been considerable political pressures.

It is important to note briefly, for those unfamiliar with the common law of the UK, that the main legal framework for the whole field of immigration is to be found in the Immigration Rules. The large majority of these rules do not come from Acts of Parliament, or what is known to lawyers as primary legislation. Rather, most of these rules are what is known as delegated or secondary legislation. In constitutional law, itself developed by judges over time by way of the common law (i.e. precedent), this means that the Home Secretary is empowered by primary legislation (in this case the Immigration Act 1971, the enabling Act) to issue new Rules, which are then, in theory at least, read before Parliament before becoming secondary legislation.

Now this distinction is very important when it comes to challenging the validity or fairness of a particular law or rule in court, because our constitutional framework is premised on the theory of parliamentary sovereignty, or supremacy, and the idea that judges ought not to have the power to strike down laws which have been passed by the country’s democratically elected officials in Parliament. Because secondary legislation has not technically been passed by Parliament, but rather the power delegated to an appointed official, its status is legally inferior to a full blown legislative Act, and is therefore more open to challenge through the courts.

In practice, the political climate of the last few decades, governed as it is by radical short-termism and woefully insufficient political discussions prior to the issue of such laws, has led to an increased willingness of judges to challenge provisions which are plainly unfair or unjust, and have not been given sufficient consideration by law-givers.

Since the turn of the millennium, the main weapon in the court’s arsenal in this regard has been the frequently misunderstood, and now controversial, obligation imposed by Section 6 of the Human Rights Act 1998 to test all laws for compatibility with the UK’s international human rights duties. The court does this by examining the alleged infringement of human rights, and considering whether such an infringement is proportionate to the aim behind the provision. At the very least, therefore, the court is required to examine each particular provision to ensure that it is made in pursuit of a legitimate aim and that it can be justified, i.e. that it is ‘proportionate’. Judges do so by reference to previous cases, including cases decided by the European Court of Human Rights in Strasbourg which, under the current law, are considered to be authoritative.

Now this is obviously a controversial subject. And, unfortunately, there is little chance of a serious discussion taking place in the public domain so long as politicians continue to bad-mouth human rights and encourage the country’s media to take a one dimensional approach to the issue. This is perfectly understandable in one way; it is far more convenient for politicians to do what they want, make laws and decisions, without the cumbersome annoyance that comes with public scrutiny by the courts.

On the other side of the fence, of course, is the argument that public scrutiny in the courts of parliamentary processes and laws issued by Ministers under delegated powers is of fundamental importance in any democratic society which claims to operate under the rule of law, particularly one in which scrutiny in other areas, such as Parliament itself and even the media, is often found to be lacking. Surely, so the argument goes, there must be someone who is willing and empowered to provide a check on the power of government officials.

This latest case touches on this important constitutional dynamic by providing a clear example of the judiciary limiting their own powers on an important, and politically live, issue. Rather than declaring the minimum income threshold to be unfair and discriminatory, which it plainly is, or, at the very least, finding that the processes by which the government prepared, implemented and justified this rule were wholly inadequate, instead the Court of Appeal more or less politely bowed and retreated in the face of pressure.

Now it is no doubt an incredibly tricky role for judges as final arbiters of our Constitution. Since we have no written formulation or Code to follow, the power of the judiciary, and of the delicate balance between the various branches of the State, falls to be determined by the judges themselves. Effectively, the judges decide the Constitution, and so who has the power to do what. This of course requires a considerable amount of restraint, and senior judges will always appear to defer to a democratically elected legislature, as they are appointed, not elected (at least for the time being).

The case of MM was a perfect example of a shoddily reasoned, researched and implemented rule which ought to have been sent back to the Government for reconsideration. The rule is clearly unfair and discriminatory, and the policy justifying it is sketchy at best. Yet instead of standing up to the Home Secretary, the Court abnegated its own authority and upheld the rule.

The upshot of all this is sadly a bad judgment and bad law. Unsurprisingly the Home Office was triumphant as it announced the backlog of some 4,000 cases of impoverished spouses seeking to join family in the UK would start to be cleared (i.e. rejected) from the end of July. There is still some small hope for these applicants that they might successfully appeal the individual decisions in their cases on human rights grounds.

But, judging by the current judicial approach in this context, we shouldn’t hold out much hope for them getting a just result.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

UK Tech Companies

If you are looking to grow your business depth and skill base by gaining foreign nationals to work for your business without needing to find and sponsor them, then perhaps the Government/Home Office may be able to give you a helping hand.

Since the 13th March this year, the Immigration rules have changed and endorsed wider and stronger connections, through Tech City, of businesses who wish to gain the skills of international workers outside of the EEA as part of an economic development of the UK digital market. With these stronger ties and broader definitions of what constitutes technical companies, the UK economy can once again prosper as a competitive country advancing towards growth in digital matters.

The Home Office have created a partnership with Tech City UK giving them the opportunity of endorsing Visas to Exceptional talented workers, and opening the field of individuals in digital technology, without the need for sponsorship from a company under Tier 2. This means that world renown individuals in these fields are able to come over to the UK and invest in the digital economy easier than before. This target is in line with establishing long term economical developments of strengthening ties outside of the EEA, especially China, and being the technology central of the EU.

This provides individuals in the digital sector with a greater flexibility and attractiveness to come over and work or invest in UK digital technology companies. The changes applied in the Immigration rules include longer periods of leave for skilled workers, from 3 to 5 years so they do not have to think about updating their visa for a further 2 more years.

All in all, the main purpose of this government scheme is to increase the flexibility of the individual who wishes to invest in the UK digital sector which in turn, enhances the country’s economic growth.

Any queries on anything mentioned here, feel free to call us or email.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

Visit visas and Chinese visitors: UK welcomes visitors

 In 2013, France had 10 times as many tourists than the United Kingdom. That must have stung someone, because earlier in June the British government has expressed its plans to promote the United Kingdom as a travel destination. It hopes to attract even more visitors than last year. There are various visitor visas to apply for, from marriage to business purposes. On most of the visitor visas, you can stay in the UK for up to 6 months. If you are staying under 6 months, you will not need to take a tuberculosis test. Note that if you need to be in the UK for specific reasons, like studying or working, you will need to apply for another type of visa. Also, you will not be able to bring in family members or other dependants with you; they will have to apply separately. Visitor visa applications are generally considered soon and you will be informed about the decision within 3 weeks after finalizing your application. Extending your visitor visa is only possible from within the UK and it cannot exceed 6 months in total.

A visitor visa will cost you £83 per person. You will have to prove you have enough money to support yourself during your trip, since you will not be able to benefit from public funds. You will also be required to show your travel plans, but you should not book anything before you obtain your visa. Applying is easy, just go online and fill in the form. You will then need to have your fingerprints and photograph taken at one of the visa application centres to finalize your application.

Following the recent establishment of the UK-China friendship and the official visit of Premier Li Keqiang, the UK especially wants to attract and welcome more Chinese visitors. Research by the UK Chinese Visa Alliance showed that Chinese tour operators did not organize more trips to the UK, as it was too difficult to obtain visas. The Home Office has now made it its mission to “promote UK interests through a strong and effective relationship with China”. It has therefore made it easier for Chinese visitors and business visitors to apply by updating the Visa4UK website. It is now working swiftly on both computers and tablets. 96% of Chinese visit visas are approved and in most cases, the decision is made within 15 days. The priority visa service guarantees your visa is issued within 3 to 5 days. In August, a super priority service will be introduced, which can get you a visa issued in just 24 hours for £600. The UK is the first and only European country to do this.

VisitBritain has recently launched ‘The GREAT China Welcome Charter’, which should also show how welcome Chinese visitors are in the United Kingdom. The touristic sector has also expressed that it is ready to host more Chinese visitors and it is ready to cater to all their needs. A lot of British businesses are already providing information in Mandarin and making other adaptions to improve the British experience for tourists. Chinese visitors who come to the UK tend to stay longer than they do in other European countries, proving that the UK is an attractive travel destination. The fact that luxury goods are much cheaper in the UK than in China might have something to do with this.

The UK is gaining popularity over the Schengen countries, according to Theresa May. Measures are being taken to make visa applications more convenient, because the fact that tourists currently need a separate visa to visit the UK when they want to travel Europe seems to be stopping many from coming to the UK. By making it possible to apply for a UK and a Schengen visa in only one application, the Home Secretary is hoping to overcome this in the future, since joining the Schengen area does not seem to be an option for her. Border security remains a priority for the United Kingdom.

Starting from October, the joint British/Irish Visa Scheme will allow Chinese visitors to visit both the United Kingdom and Ireland on the same visa. This Scheme will soon also be introduced in India.

It is clear that amends to the visa application process are being made and the Home Office is trying to continue to improve in the future. Talks about agreements with other European countries are ongoing and should make travelling through Europe easier in the future.

Westkin Associates

info@westkin.com

5th Floor, Maddox House,
1 Maddox Street
Mayfair
London
W1S 2PZ
United Kingdom
0207 118 4546

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