Brief Summary of Immigration Law – ELA 2010
United Kingdom
Substance of Immigration Eligibility
EEA and Swiss nationals
Nationals of countries within the European Economic Area (EEA) and Switzerland are in general free to work in the UK without restriction. However, Bulgarian and Romanian nationals need a work permit before they can take up employment, and nationals of some of the newer EU member countries are required to notify the immigration authorities when they first start work.. Non-EEA nationals will only be entitled to work in the UK if they have been granted a visa within an immigration category giving them permission to do so.
Family-based Sponsorship
Where anEEA or Swiss national has the right to live and work in the UK, their spouse (or civil partner) and dependent children may also join them in the UK if they are also EEA or Swiss nationals. Family members who are non-EEA or Swiss nationals need to apply for an EEA family permit before coming to the UK.
Non-EEA nationals who are a parent, grandparent or other dependant relative (eg children under the age of 18) of a UK citizen or a person settled in the UK can apply for permission to settle permanently in the UK (indefinite leave to remain). Spouses and partners can also apply to join a settled person in the UK but will not be granted permanent residency immediately. The spouse or partner will need to live in the UK for 27 months (if applying from outside of the UK) or remain in the UK for another 2 years (if already in the UK when applying) before they can apply for permission to settle permanently in the UK.
Points-based system
In order to obtain permission to enter or remain in the UK to work or study, non-EEA nationals must pass apoints assessment under the new Points Based System (PBS). There are five tiers under the PBS: Tier 1 for highly skilled workers including investors and entrepreneurs; Tier 2 for skilled workers with a job offer; Tier 3 for low-skilled workers filling specific temporary labour shortages (NB: this tier is currently closed), Tier 4 for students; and Tier 5 for temporary workers. Each tier has its own specific points requirements.
Applicants under all tiers except Tier 1 must be sponsored before they can apply for permission to enter or remain in the UK. Any UK organisation wishing to sponsor a non-EEA national under Tiers 2, 4 or 5 will need a sponsorship licence. The sponsor can then apply for certificates of sponsorship to assign to eligible non-EEA nationals, For Tier 2 and 5, the sponsor must be a UK-based employer. For Tier 4, the sponsor must be an education provider based in the UK.
The most important categories for UK based employers are Tier 1 (General), Tier 2 (General) and Tier 2 (Intra Company Transfer).
Tier 1 (General)
Highly skilled workers can come and work in the UK (including in self-employment) under Tier 1 (General) of the PBS. A job offer is not required. The migrant must score the required number of points on the points-based assessment based on their attributes (qualifications, previous earnings, age and UK experience), required English language skills and required minimum funds.
Employment-based Sponsorship under Tier 2 (General)
The migrant must hold a job offer from a licensed sponsor and a valid certificate of sponsorship. They must also score the required number of points under the points-based assessment for their attributes (including age and qualifications), minimum required English language skills and minimum requiredfunds to support themselves. The sponsor must also be able to demonstrate that the non-EEA national is needed to fill a gap in the workforce that cannot be filled by an EEA national.
Employment-based Sponsorship under Tier 2 (Intra Company Transfer)
The Tier 2 (Intra Company Transfer) licence enables a UK based employer to sponsor an employee working for another group company outside the UK to be transferred to a UK branch either on a long-term basis or for a short term skills transfer. There must be a link of common ownership or control between the UK based employer and the overseas organisation transferring the employee.
The employee must fall into one of the following sub-categories:
Established Staff: an established employee of the overseas organisation who is being transferred to the UK to fill a skilled job;
Graduate Trainee: a recent graduate of an overseas organisation who is being transferred to the UK employer as part of a structured graduate training programme; or
Skills Transfer: an overseas employee transferred to the UK branch in a graduate role to learn the skills and knowledge to perform their job overseas or to impart their own specialist skills to the UK workforce.
The migrant must, again,meet minimum points requirements for attributes and funds.
Permanent Residency
A migrant may apply for indefinite leave to remain in the UK upon the completion of five continuous years in one or more eligible immigration categories. The application for indefinite leave to remain can at the same time include their spouse and any dependants.
Interim immigration limit
As part of measures introduced to limit the number of non-EEA nationals entering the UK, the number of certificates of sponsorship a licensed UK based employer can assign to non-EEA workers under Tier 2 (General) has been limited. The UK government has also introduced a monthly limit on the number of visas that can be granted under Tier 1 (General) of the PBS. These measures will remain in force until 31 March 2011. They will be replaced with a formal UK immigration cap from 1 April 2011, the form and content of which is currently under consultation.
Process for Immigration Approval
When applying from outside the UK, applications are made via the UK embassy/consulate in the applicant's own country.
When applying from inside the UK, applications need to be made to the UK Border Agency. Certain applications can be made in person at one of the UK Border Agency's Public Enquiry Offices.
Time required for approval
Depending on the complexity of the application, the UK Border Agency aims to deal with most applications made under the PBS within four weeks. The process can be expedited for certain immigration categories by submitting the application in person at one of UK Border Agency's Public Enquiry Offices. This is a premium service offered by the UK Border Agency and a higher fee is payable. Applications are considered on the same day they are received. Application times outside of the UK vary considerably dependant on the diplomatic post applied at.
It can take several weeks for employers to be awarded their sponsor licence under Tiers 2 and 5 of the PBS after submitting their application online and providing the supporting documentary evidence.
For more immigration-related information in the UK, please contact:
Sarah Harrop
Addleshaw Goddard
Milton Gate, 60 Chiswell StreetEngland EC1Y 4AG
United Kingdom
P: + 44 0 20 7788 5057
10-1656475-21