The changes to Immigration Rules affecting Tier 1 (General) migrants is fast approaching. From 5^th April 2018 those en route to settlement will no longer be eligible to apply for Indefinite Leave to Remain.

Tier 1 (General) of the Points Based System has been closed to overseas applicants since 23^rd December 2010. However, dependants (husband, wife or partner or children under 18) can still apply to join an applicant who obtained prior entry clearance prior to the closure date. With effect from 6^th April 2015 Tier 1 (General) of the Points Based System has been closed to migrants wishing to extend their leave.

Only those who have extant Tier 1 (General) leave will be eligible to apply for Indefinite Leave to Remain, provided they have accumulated 5 years Tier 1 (General) leave to remain by 5^th April 2018.

What does this mean for Tier 1 General Migrants who fall short of the 5-year residence requirement?

The options are as follows:

Tier 2(General): The migrant’s employer could sponsor them to remain in the UK under the Tier 2 (General) category. The employer will need to obtain a Sponsor’s Licence from the Home Office if they do not already have one.   The resident labour market test, if applicable, must also be satisfied. This means that the position must be advertised for at least 28 days in order to demonstrate no viable British, settled or EU candidates. A person switching from Tier 1 (General) to Tier 2 (General) may combine their accumulates Tier 1 leave with their Tier 2 leave in order to satisfy the five-year residence requirement for Indefinite Leave to Remain.

Tier 1 (Entrepreneur): If the migrant is self-employed or wishes to be, and has £200,000 available to invest in a business, then Tier 1 (Entrepreneur) of the Points Based System could be an alternative route. The downside to switching into this category is that the applicant would have to complete a full five years under Tier 1 (Entrepreneur) before becoming eligible for Indefinite Leave to Remain. However, in some instances applicants will be eligible for Indefinite Leave to Remain after 3 years. Some examples are:

• You have established a new UK business or businesses that has or have created the equivalent of 10 new full-time jobs for persons settled in the UK; or
• You have taken over or invested in an existing UK business or businesses and your services or investment have resulted in a net increase in the employment provided by the business or businesses for persons settled in the UK by creating the equivalent of 10 new full-time jobs; or
• You have established a new UK business that has had an income from business activity of at least £5 million during a 3-year period in which you had leave as a Tier 1 (Entrepreneur) migrant; or
• You have taken over or invested in an existing UK business and your services or investment have resulted in a net increase in income from business activity to that business of £5 million during a 3-year period in which you had leave as a Tier 1 (Entrepreneur) Migrant, when compared to the immediately preceding 3-year period.

 Tier 1 (Exceptional Talent): If the migrant is exceptionally talented, they can switch into this category and the time accumulated from leave to remain under their previous category can count towards the five-year residence requirement for Indefinite Leave to Remain. The criteria for the Tier 1 (Exceptional Talent) category can be very difficult to meet and the requirements and the migrant will need to be endorsed as a leader (exceptional talent) or emerging leader (exceptional promise) in one of the following:

• Science
• Engineering
• Humanities
• Medicine
• Digital Technology
• The Arts

Tier 1 (Investor): If you have spare change totalling up to £2 million in your account, then you will be eligible to switch into the Tier 1 (Investor) Category. The £2 million must be invested into UK Government bonds, share capitals or loan capital in trading UK registered companies. An additional 5 years would need to be completed (as per the Tier 1 (Entrepreneur) category) unless the migrant is eligible for accelerated settlement. Accelerated settlement would apply in the following circumstances:

• Apply to settle after 2 years if you invest £10 million
• Apply to settle after 3 years if you invest 5 million

Should you require any information in relation to residing in the UK, or other Points Based System applications, please call us on 020 7998 3488 or email sonum@cdfsolicitors.com. We are based in Wimbledon and provide a free one-hour initial consultation.