It's not just the US immigration norms which have undergone changes. Even the UK rules have been changed frequently. In fact, there is talk that the UK Home Office is working on a consolidated set of new rules.
Clearly, the recent changes reflect the policy of the government on the new strategy of legally ‘managed migration’.
This seeks to plug in labour shortages in skilled occupations such as doctors, nurses, teachers, engineers and so forth, but also in unskilled and semi-skilled occupations. (Is the UK a good place to migrate?)
In the past, the latter have not traditionally been covered by the normal work permit scheme. Though there have been limited opportunities for working holidaymakers and students at agricultural camps.
Introduction of mandatory entry clearance
Significant changes to immigration procedure took effect from November 13, 2003.
Overseas nationals (except EEA nationals and their families) seeking entry to the UK for more than six months will be required to apply for prior entry clearance from a British diplomatic post (usually in the individual’s country of origin or habitual residence).
Nationals of certain countries, known as visa nationals (India included), have always been required to obtain entry clearance (a visa) before traveling to the UK regardless of their intended purpose or period of stay in the UK. The provisions for these nationals remain unchanged.
Historically however, non-visa nationals have only been required to obtain entry clearance when seeking entry to the UK in certain immigration categories.
The new requirements will mainly affect non-visa nationals seeking entry as work permit holders or students as they will no longer be able to arrive in the UK solely with their work permit or confirmation of their enrolment at a UK university.
Without an entry clearance certificate from a British diplomatic post before travel, an overseas national may not be allowed to enter the UK. The Home Office has allowed a grace period until January 13, 2004.
It is on account of shortages in industries such as leisure, catering, food processing and construction, new short-term schemes are being introduced to allow people from abroad to come and engage in low-skilled jobs in the UK.
Changes to the Working Holidaymaker Scheme
Significant changes have been made to the Working Holidaymaker Scheme from August 25, 2003. The scheme is still applicable to Commonwealth citizens. The age limit has been raised from 27 to 30. There is no longer the earlier restriction that employment should be ‘incidental’ to the holiday.
Previously, many applications were refused because the immigration officer suspected that the applicant was intending to work full time. Another ground for refusal had been that the applicant should intend to leave the UK after the working holiday. With the new rules it will now be possible to ‘switch’ to work permit employment after one year as a working holidaymaker.
Leave to enter and refusal of leave
The main distinction between the Immigration Service at the ports of entry and the Home Office in Croydon is that the former grants or refuses leave to enter for arriving passengers.
While the latter grants or refuses extensions of leave for people who are already in the UK.
This distinction is stipulated in section 4(1) of the Immigration Act 1971. That under the Immigration (Leave of Enter) Order 2001, the Secretary of State (i.e. Home Office officials) has the same power as immigration Officers to grant or refuse leave to enter. This is largely to enable the Home Office to deal with asylum seekers who claim asylum at the port.
Highly skilled migrant programme
The Highly Skilled Migrant Programme (the HSMP) originally commenced as a pilot scheme on January 28, 2002. The success of the same resulted in the HSMP being incorporated in the UK rules at paragraph 135 A-H of HC 395 since 1 April 2003.
The HSMP is designed to allow individuals to enter the UK without having a prior offer of employment. The programme is aimed at ‘talented people’ with exceptional skills, abilities or experience. In-country `switching’ is possible, except for visitors, while previous leave in a different capacity may be counted towards the four years leading to settlement.
Admission for business innovators
The success of another pilot scheme to attract ‘outstanding entrepreneurs’ to the UK, who cannot meet the normal financial requirement of £200,000 for setting up a business in England, resulted the same being incorporated into HC 395 at paragraph 210A-H since April 1, 2003. Again like the HSMP, it is possible to ‘switch’ into this category while in the UK, except as a visitor.
Multiple Entry Work Permit Scheme
The newly introduced multiple entry work permit is designated for employees of UK-based employers whose job requires them to work partly overseas and partly in the UK.
A specific job must have been arranged before such a work permit can be obtained.
Primarily, the permit negates the need for the employer to obtain a new work permit every time the employee is required for work in the UK.
The maximum duration of a multiple entry work permit is two years. It is important to note that unlike regular business and commercial work permits the multiple entry work permit does not lead to settlement.
A specific scheme has been created for bringing short-term, low-skilled labour to the UK. Certain sectors have been identified as having a shortage of local labour. A certain quota of foreign nationals will be allowed to bridge the deficit of local labour.
Presently, two such identifiable sectors are hospitality and food processing. In contrast, the Sectors-Based Scheme is very different from the ordinary work permit regime.
Admission in this slot is for one year only, with no possibility of an extension. Furthermore, there is no provision for admission of dependants in this category. This category will also not lead to settlement.
Admission of spouses etc .
Significant changes to the marriage rules were introduced into April 1, 2003. The main changes are as follows: Visitors and others who are admitted for six months or less to the UK must now leave the country and apply for entry clearance as spouses if they get married while they are in the UK. This is aimed at visitors contracting ‘marriages of convenience,’ with hidden agendas.
The ‘probationary period’ for spouses has been extended to two years. This is the same duration as for unmarried cohabitees. Unmarried partners no longer have to show a legal impediment to their getting married.
Married or unmarried couples who have been living together abroad for at least four years will no longer have to undergo a ‘probationary period’ at all. The overseas spouse or fiance(e) must be at least 16 years old on arrival in the UK, while the settled ‘sponsor’ must be at least 18 years old.
This is bearing in mind the problem of ‘forced marriages’, in which young girls from certain Asian communities are alleged to be compelled by their families to marry boys from the country of their origin.
Admission of adopted children
Since 1994, de facto adoptions were not been recognised by the UK Immigration Rules. Paragraph 310 also prevented the admission of children who had been adopted overseas in a legal procedure sanctioned by ‘the competent administrative authority or court’, but where the country was not on the ‘designated list’ of countries whose adoption orders are recognised in the UK.
By way of instance, Indian adoption deeds under the provisions of the Hindu Adoptions Maintenance Act, 1956 were not at all acceptable by the British High Commission in India. Only formal guardianship orders by the court of competent jurisdiction were acceptable.
Provisions for de facto adoption were introduced in paragraphs 310, 311 and 314 w.e.f. April 1, 2003.
Consequently, a child who has been adopted in a country which is not on the ‘designated list’, like India will nonetheless be allowed to enter or remain in the UK provided that the adoptive parent(s) have assumed parental responsibility at least 18 months ago and have been living abroad with the child for at least one year. Certainly, this is an uphill task.
The temporary overseas residence requirements create serious impediments for the prospective adoptive parents settled in the UK. There is no longer a requirement for the adoptive parents to be married, or to provide all the financial support for the child themselves. Maintenance can also be provided by third party support from relatives or friends.
Paragraph 289A of HC 104, which came into force in December 2002, brought some relief for battered spouses. The concession for victims of domestic violence who leave their spouse or unmarried partner during the probationary period was introduced into the immigration rules as paragraph 289A.
New paragraph 289B-C makes it clear that indefinite leave may be granted, provided there is satisfactory evidence of domestic violence.
In short, managed legal migration has opened the doors in certain new categories, especially for the talented and qualified. Immigration consultants have been vigorously advertising in parts of northern India, conveying the impression that these newly introduced categories are literally available for the asking.
This is not the case at all. Strong checks and balances by the visa department of the British High Commission, firmly continue to be in place and will continue to do so.
(The author can be contacted at [email protected] He is an active member of the Immigration Law Practitioners Association, London, and American Immigration Lawyers Association. He is also a member of the International Bar Association and regional representative for India of the migration and nationality law committee of the IBA.)