Business Immigration - Amendment To Immigration Rules On 22 November 2012

Summary

Yesterday (22 November 2012) the Government made changes to the Immigration Rules. This is the eighth amendment to the Immigration Rules in 11 months. The changes introduced yesterday relate to Tier 1 (Entrepreneur), Tier 1 (Investor), Tier 2 (General), Tier 2 (Intra-Company Transfer), Tier 4 (General), Tier 5 (Temporary Worker) and Tier 5 (Youth mobility scheme) migrants. There were also changes to the Rules relating to applications for settlement (indefinite leave to remain) by Tier 1 (General) and Tier 2 migrants.

The changes were laid before Parliament on 22 November 2012 and the majority will come into force on 13 December 2012, with the remainder coming into force from 1 January 2013 and 28 February 2013. Some changes represent a relaxation of current Rules, whilst others tighten the current Immigration Rules. The majority of the changes in the new Immigration Rules are an attempt by the UKBA to comply with the recent Supreme Court decision of R (Alvi) v Secretary of State for the Home Department (Joint Council for the Welfare of Immigrants Intervening) [2012] 1 WLR 2208.

Supreme Court decision in Alvi

Alvi was a case that arose from an appeal by the UKBA against JCWI's successful judicial review challenge to the legality of the interim immigration cap introduced by the Government in 2010 in the case of R (JCWI) v Secretary of State for the Home Department [2010] All ER (D) 244 (Dec). The lead lawyer in both the Alvi and JCWI cases was Charles Russell's Head of Immigration Shahram Taghavi. In July of this year the Supreme Court in Alvi dismissed the Secretary of State's appeal and ruled that the Immigration Rules (which have to be laid before Parliament for approval) should include all visa criteria which will or might be determinative of a visa or settlement application and that the Secretary of State cannot rely upon requirements set out in her Tier 2 "Guidance" documents to refuse applications for visas for Tier 2 migrants.

Since the Supreme Court's ruling in Alvi, the UKBA has made a number of rushed changes to the Immigration Rules (including the changes introduced yesterday) in order to import any requirements in Guidance documents into the Immigration Rules. This has and will continue to make the exact law clearer for employers and migrants, as all mandatory provisions will be found in one place: the Immigration Rules.

Earlier changes to the Immigration Rules

As mentioned above, this is the eighth amendment to the...