The last two weeks have been a roller cost in the immigration world with good and bad news shocking in equal amount. This article provides a summary of the changes announced by the UK Border Agency and a peak at what might lie ahead for migrants wishing to come to the UK in the future.
First and foremost, a word of reassurance for migrants already in the UK who will not be affected by the changes. The UK Border Agency seems to have learned from past experience, in particular the judicial challenge brought by the HSMP forum, that immigration rules should not be changed retroactively for individuals who have make a commitment to be in the UK for the long run.
However, the above statement must be accompanied by a word of warning since the fate of the Borders Citizenship and Immigration Act 2009, which would lead to an increase the length of time required to be eligible for nationality and the concept of “probationary citizenship”, remains today unclear. The government has not said anything about these provisions and so far so it is unknown whether they will implement them in July 2011 or at all.
In terms of recent changes, the UK Border Agency has announced the introduction of a English language test in autumn 2010 for migrants wishing to enter the UK as the dependant spouse, civil and unmarried partner as well as fiancée and proposed civil partner of someone present and settled or a British Citizen.
On 28 June 2010, the UK Border has also announced caps to the Tier 1 and Tier 2 Schemes to limit the number of migrants. The cap for Tier 1 General applications (highly skilled migrants) will be set at 5,400 until April 2011 whilst the cap for Tier 2 sponsored workers will be set at 18,700.
The limit will not apply to applications for leave to remain under Tier 1 (General) or any application under the Tier 1 (Entrepreneur), Tier 1 (Investor) and Tier 1 (Post Study Work) sub-categories. In a nutshell, it will not apply to migrants already in the UK under the Tier 1 Scheme or intending to make an application to switch into the Tier 1 General Scheme.
These changes will come into effect on 19 July 2010 and it is envisaged that the limit will operate on a monthly basis. The UK Border Agency has stated that “where an application meets all the requirements of the Immigration Rules but granting leave would exceed the grant allocation for the relevant grant allocation period, the application will not be refused but no grant of leave will be made. Instead the application will be re-allocated to the next period for consideration”.
Finally, the bar to qualify as Tier 1 General holder under Appendix A, in terms of age, previous earnings, qualifications and UK experience has been raised from 75 points to 80 points. However, applicants who earn more than £150,000 will de facto meet the new 80 points threshold.
The good news has not so far been widely publicized. The Court of Appeal has openly questioned the constitutionality of the policy guidance when compared to the Immigration Rules.
In its landslide judgment, in Pankina and others v Secretary of State for the Home Department  EWCA Civ 719, the Court seems to suggest that there is a greater need in the decision making process for discretion and common sense to be exercised in favour of migrants especially in light of the fact that the policy guidance has not been established through the legislative route “Having £800 in the bank, whether for three continuous months or simply at the date of application, is no doubt some indication of this; but people who are able to meet the test may fall on hard times after obtaining indefinite leave to remain, and others who fail it would, if allowed to remain, never become a charge on public funds. The Home Office has to exercise some common sense about this if it is not to make decisions which disproportionately deny respect to the private and family lives of graduates who by definition have been settled here for some years and are otherwise eligible for Tier 1”.
The implications in particular for applicants who have been refused leave for the falling short of £800 even if just for one day or few pennies are immense. However, even without a crystal ball, one might fear that the UK Border Agency will appeal against the common sense determination advocated by the Court of Appeal.