United Kingdom

ABIL Lawyers

Laura Devine

Laura Devine

London, United Kingdom

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Nicolas Rollason

Nicolas Rollason

London, United Kingdom

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ENTRY CLEARANCE

Entry Clearance is the term used to describe the documents that permit travel to, or entry into, the United Kingdom (UK).[1] In many cases, to obtain entry clearance foreign nationals must submit an application to a British diplomatic post (BDP) overseas in advance of their travel to the UK. Four types of entry clearance are issued:

  • a visa, required by all visa nationals (i.e., those nationals or citizens of the countries listed in Appendix 1 of the Immigration Rules);
  • an entry certificate, issued to non-visa nationals;
  • the European Economic Area (EEA) Family Permit, issued to non-EEA national family members of EEA nationals; and
  • an exemption vignette, issued to those who are exempt from the requirements of the Immigration Act of 1971 (e.g., diplomats, heads of state).[2]The entry clearance process for the UK is operated by UK Visas & Immigration through visa sections in most BDPs around the world. Information on the entry clearance processes operated by BDPs can be found on both the UK Visas & Immigration and BDP websites.

    Whether a foreign national needs to apply for entry clearance will depend on his or her nationality and the purpose for which he or she wishes to come to the UK. Visa nationals require visas regardless of the purpose for which they are coming to the UK; non-visa nationals need prior entry clearance if they are coming to the UK for any other purpose than a visit for under six months, except where seeking entry under the Tier 5 creative and sporting category where a certificate of sponsorship was assigned for three months or less.[3]

    The person applying for entry clearance must be outside of the UK and Channel Islands at the time of application. A migrant should apply for entry clearance at the BDP in the country where he or she is normally and legally resident (with the exception of migrants applying for leave to enter the UK as visitors/EEA Family permits).[4]

    Entry clearance officers must adhere to strict rules and procedures, as provided for in the staff Entry Clearance Guidance,[5] before entry clearance may be issued. In relevant part, the entry clearance endorsement tells the immigration officer at a UK port of arrival:

  • the personal details of the individual;
  • the purpose of travel;
  • restrictions, if applicable;
  • the “effective” date (i.e., the date on which the entry clearance is issued and the applicant may travel); and
  • the “expiry” (expiration) date (i.e., the date on which the entry clearance will cease to be valid).[6]Police Registration[7]

    Upon entering the UK, individuals over the age of 16 who have been given limited leave (permission) to enter, or who enter the UK for longer than six months, must register with the police within seven days if:

  • they are a national or a citizen of a country or territory listed in Appendix 2 of the Immigration Rules; or
  • they are a stateless person; or
  • they are a person holding a non-national travel document.[8]Dependents of individuals required to register with the police must also register with the police if they are 16 or older and also meet the relevant criteria for those who must register.

    Under certain circumstances, migrants may obtain an exemption from the requirement to register with the police. A list of those individuals who qualify for this exemption may be found in the UK Visas & Immigration Police Registration Guidance.[9]

    Individuals in London must register at:
    Overseas Visitors Records Office (OVRO)
    Brandon House
    180 Borough High Street
    London SE1 1LH

    Outside of London, individuals may contact their local police station to determine where they must register.

    A list of the information and documentation to provide is in the UK Visas & Immigration Police Registration Guidance.[10]

    2. VISA FEES AND PROCESSING TIMES

    Fees

    On April 6, 2013, UKBA fees were increased. The following UKBA web page has the most up-to-date fees for visas to the UK, quoted in pounds sterling: http://www.ukba.homeoffice.gov.uk/aboutus/fees/

    Processing Times

    Visa processing times vary considerably depending on the country in which the application is submitted. The following UK Visas web page has a guide to the most up-to-date estimated processing times: http://www.ukba.homeoffice.gov.uk/visas-immigration/general-info/processing-times/.

    Most individuals must enroll their biometric information (a scan of fingerprints and a facial photo) as part of their visa application if they are aged 5 or over.[11]

    4. BUSINESS VISITORS

    Non-visa nationals who meet certain criteria (explained further below) may enter the UK without prior entry clearance for up to six months as a Business Visitor. Business Visitors may not undertake productive work, such as employment (paid or unpaid), or provide services to clients in the UK. They may, however, engage in certain permitted business activities.[12]

    Visa nationals must obtain a Business Visitor visa from a BDP before traveling to the UK.[13]

    Both the amount of time spent in the UK (up to 6 months for most business visitors, or up to 12 for academic visitors), and the activities to be performed, are scrutinized to determine whether an individual may enter the UK as a Business Visitor or requires permission to enter in a different category.

    Individuals who have a pending application in an employment category may not enter the UK to perform the duties of their intended employment before leave under the employment category is granted. They may enter as Business Visitors for short periods so long as their activities are confined to those described below, but specific and strong evidence of their intended activities must be provided. UK immigration officers have strict instructions on the activities that may be carried out by Business Visitors, and may refuse entry to any individual who cannot provide evidence that his or her intended activities are consistent with the limitations of those activities.

    Requirements for Business Visitors

    In addition to meeting the criteria for General Visitors, individuals must satisfy the Entry Clearance Officer (ECO) or Immigration Officer (IO) that they meet specific requirements for entry as a business visitor, including that they:

  • are genuinely seeking entry as a Business Visitor for a period not exceeding 6 months (or 12 months if seeking entry as an Academic Visitor);
  • intend to carry out a “Permissible Activity”[14] or engage in one of the activities of the business visitor subcategories (detailed below).[15]The fact that the individual is employed by an overseas office and will continue to be paid from overseas during the UK assignment is not determinative and does not render any work in the UK legal. The key issue is whether or not the employee/contractor will undertake productive work in the UK, regardless of duration or payment.

    Business visitors may not receive pay from a UK source, unless they are employed by a multi-national company that issues payment of worldwide salaries from the UK for administrative reasons.[16]

    Permitted Activities

    Business visitors may transact business in the UK provided that this does not extend to productive work.

    Typical permitted activities of business visitors may include:

  • attending meetings and conferences (arranged before arrival in the UK), trade fairs (restricted to promotional work and not selling directly to public), or interviews (arranged before arrival in the UK);
  • speaking at conferences not run as commercial concerns, the organizers are not making a profit, and the conference is a one-time event;
  • arranging deals, negotiating or signing trade agreements or contracts;
  • undertaking fact-finding missions;
  • conducting site visits;
  • acting as interpreters or translators for visiting business people provided they are all employed by and doing the business of the same overseas company;
  • those representing computer software companies coming to install, debug, or enhance their products. Such employees may also be briefed on the requirements of a UK customer, although this would not extend to providing a service involving the use of their expertise to make a detailed assessment of a potential customer’s requirements because this would be regarded as consultancy work requiring specific permission under Tier 2 of the Points-Based System (PBS);
  • representing foreign manufacturers coming to service or repair their company’s products within an initial period of guarantee;
  • representing foreign machine manufacturers, as part of the contract of purchase and supply, in erecting and installing machinery too heavy to be delivered in one piece;
  • representing foreign companies coming to erect, dismantle, install, service, repair, or advise on the development of foreign-made machinery;
  • board-level directors attending board meetings in the UK provided they are not employed by a UK company, although they may be paid a fee for attending the meeting.[17]Business visitors may use their laptops and phones while in the UK if such use is solely to enable them to remain up-to-date with their workload overseas, or to liaise with UK contacts.[18]

    Prohibited Activities

    Business visitors may not:

  • undertake employment;
  • produce goods or provide services within the UK;
  • conduct productive work, paid or unpaid. This would include any work that is directly or indirectly revenue-generating for the UK business during the ordinary course of business;
  • participate or appear to participate in employment-type activities, such as having their own desk/equipment/business card in the UK;
  • be involved in any aspect of selling goods or services directly to members of the public or for the UK branch to other companies;
  • undertake on-the-job, “watch-repeat” type training where they are then left unsupervised to carry on activity that would amount to productive work.[19]Business Visitor Visa

    As noted above, visa nationals must obtain a Business Visitor visa from a BDP before traveling to the UK unless a treaty or special agreement authorizes otherwise. Visa nationals may typically enter and leave the UK as many times as they like during the validity of their visa.

    The nationality of the passport determines whether a migrant is a visa national for the purposes of traveling to the UK as a Business Visitor, regardless of whether he or she has permanent residence documents from a non-visa national country (e.g., a U.S. green card). Citizens from EEA countries are not visa nationals and do not need a visa to travel to the UK for a business visit or for any other purpose. U.S. nationals are not visa nationals and do not need visas to visit the UK.

    5.EMPLOYMENT AUTHORIZATION

    Types of Employment Authorization

    In most cases, overseas nationals must obtain employment authorization before they may undertake employment in the UK. Some exceptions to this general rule include EEA nationals, Swiss nationals, and the dependents of those migrants holding employment authorization in long-term categories.

    The most frequently used UK immigration categories currently available that allow employment include:

    Not requiring sponsorship:

    a) Tier 1

    b) UK ancestry

    Requiring sponsorship:

    a) Tier 2

    b) Tier 5

    Tier 1

    Tier 1 of the PBS is intended for high-value migrants.

    At present, Tier 1 comprises five categories:

    • Tier 1 (Exceptional Talent);
    • Tier 1 (Entrepreneur);
    • Tier 1 (Investor);
    • Tier 1 (General)—currently closed to applicants outside the UK, and to migrants in most other immigration categories who are already in the UK; and
    • Tier 1 (Graduate Entrepreneur).

    In April 2012, a sixth category, Tier 1 (Post-Study Worker), was closed to new applicants.[20]

    For migrants applying under the Tier 1 Entrepreneur, Investor, and Exceptional Talent categories, initial leave is granted for up to 3 years and 4 months, while leave to remain may be extended for a further 2 or 3 years.[21] For Tier 1 (Graduate Entrepreneurs), this initial grant and extension may only be for 1 year each for a maximum total of 2 years.[22] As noted above, Tier 1 (General) is currently closed to applicants applying from outside the UK, but those who do qualify may be granted leave to remain between 2 and 3 years.[23]

    After a continuous period of 5 years in the UK, most Tier 1 migrants may apply for indefinite leave to remain (ILR).[24] Time spent in the UK under the Tier 1 (Graduate Entrepreneur) category does not count toward settlement.[25] In certain circumstances, Tier 1 Entrepreneurs and Investors may qualify for an accelerated route to settlement in only two or three years.[26]

    Tier 1 Entrepreneur, Graduate Entrepreneur, and General migrants must demonstrate English-language proficiency[27] and that they have the minimum required funds for self-maintenance in the UK.[28] Tier 1 (Exceptional Talent) migrants must only demonstrate a proficiency in English upon application for an extension of stay, and there is no maintenance requirement.[29] There is no English language or maintenance requirement for the Tier 1 (Investor) category.

    Tier 1 (General)

    The Tier 1 (General) category permits migrants to either look for employment without a sponsor, or engage in self-employment in the UK. Tier 1 (General) is closed to out-of-country applicants.[30]

    Applicants may qualify to remain in the UK under Tier 1 (General) if they obtain sufficient points on the basis of age, qualifications, UK experience (in the form of UK-based employment or education), and previous earnings over a consecutive 12-month period within the 15 months before they apply. The 12-month period for earnings may be a 12-month period before a period of absence from work due to maternity/adoption-related leave. In most cases, the required points cannot be achieved without at least a bachelor’s degree (or equivalent) and £40,000 or more of previous earnings. An exception exists for individuals who are able to demonstrate previous earnings of at least £150,000.[31]

    Tier 1 (Investor)

    The Tier 1 (Investor) category is intended for wealthy individuals seeking to make a substantial financial investment in the UK.[32]

    Applicants may obtain the required number of points in one of two ways. First, they may qualify if they have at least £1 million of personal money under their control that is held in a regulated financial institution and disposable in the UK. Alternatively, applicants may qualify if they own personal assets which, taking into account any liabilities to which they are subject, have a value exceeding £2 million and have at least £1 million in cash under their control that is disposable in the UK and has been loaned to them by a UK-regulated financial institution.[33]

    Migrants seeking to extend their stay in this category must evidence that, within 3 months of being granted leave to enter or remain in the UK, they invested no less than £750,000 in UK Government bonds, share capital, or loan capital in active and trading UK-registered companies other than those principally engaged in property investment. Additionally, the balance of the £1 million must have either been invested in assets or be held on deposit in a UK-regulated financial institution.[34]

    Tier 1 (Entrepreneur)

    The Tier 1 (Entrepreneur) category is for those migrants investing in the UK by setting up or taking over, and being actively involved in the running of, one or more businesses in the UK.[35]

    To qualify, applicants must score at least 75 points, which may be obtained by either having access to at least £200,000 of their own funds, or £50,000 from specified financial investment organizations. All funds must be held in one or more regulated financial institutions and disposable in the UK. Funds used to qualify under Tier 1 (Entrepreneur) must remain available to the applicant after the application is made.[36]

    To extend their stay, migrants must have:

    • invested no less than £200,000 (or £50,000 if leave was granted for that amount) in cash directly into one or more UK businesses;
    • have registered with HM Revenue & Customs as self-employed, registered a new business in which they are a director, or registered as a director of an existing business within 6 months of either entry to the UK or the date of grant of entry;
    • have been engaged in business activity at the time of application;
    • have produced a net increase of two new full-time jobs for persons settled in the UK by either establishing one or more new businesses or taking over/investing in an existing business.[37]

    The Immigration Rules were changed in January 2013 to create a “Genuine Entrepreneur Test.” Under this test, the UKBA may ask Tier 1 (Entrepreneur) migrants to demonstrate that the funds they used to apply continue to be available to them past the initial application period.[38]

    Tier 1 (Exceptional Talent)

    The relatively new Tier 1 (Exceptional Talent) category was created for internationally recognized or potential world-leading talent in the fields of science and the arts.[39]

    In March 2013, the application process was divided into two parts.[40] To qualify, applicants must first be endorsed by one of four “Designated Competent Bodies” (DCB), including The Royal Society, The Arts Council of England, The British Academy, or The Royal Academy of Engineers.[41] Thereafter, applicants have 3 months to apply for entry clearance or leave to remain.[42] It should be noted that applications are subject to General Grounds of Refusal and may therefore still be refused despite a DCB endorsement. Until further notice, there is an annual cap of 1,000 endorsements.[43]

    Should applicants wish to extend their stay, they must demonstrate that during their leave as a Tier 1 (Exceptional Talent) migrant, they earned money in the UK due to employment or self-employment in their designated field of expertise, and that the DCB has not withdrawn its endorsement. Additionally, as noted above, applicants for extensions in this category are subject to an English language requirement.[44]

    Tier 1 (Graduate Entrepreneur)

    Tier 1 (Graduate Entrepreneur) is the newest category added to Tier 1. This route was created to enable exceptional non-European Economic Area (EEA) graduates to apply from overseas to enter the UK or extend their stay past graduation to create and develop businesses.[45]

    To qualify for this category, a graduate must be endorsed by a UK Higher Education Institution (HEI) or UK Trade and Investment (UKTI), have been awarded a bachelor’s or post-graduate degree by an HEI or earned an equivalent degree that is recognized by (UKNARIC), and have the endorsement confirm that the applicant and his or her business idea have been assessed.[46]

    Unless amended, there will continue to be an annual limit of 2,000 places allocated as follows:

  • 1,000 places for MBA graduates of UK HEIs;
  • 900 places for graduates of any subject from UK HEIs; and
  • 100 places for elite global graduate entrepreneurs (managed by UKTI).[47]As noted above, initial grants are for one year. Applicants may apply for an additional year if they continue to meet the above criteria and can provide evidence that they have made satisfactory progress in developing their business.[48]

    UK Ancestry

    UK ancestry allows individuals to come to the UK to take or seek any employment or self-employment. To qualify under this category, the individual must:

    • be a Commonwealth citizen;
    • be age 17 or over;
    • have at least one grandparent who was born in the UK and islands (Guernsey, Jersey, or Isle of Man), Republic of Ireland before March 31, 1922, or on a British-registered ship or aircraft;
    • be able to work and intend to take or seek employment in the UK; and
    • be able to adequately support and accommodate him- or herself and his or her dependents without public assistance.[49]

    Those given permission to enter and work in the UK because of their UK ancestry will initially be permitted to stay for 5 years, after which they may be eligible to apply for indefinite leave to remain (settlement).[50]

    Sponsorship

    Migrants seeking leave to enter or remain in the UK under Tier 2 and Tier 5 require sponsorship. As the UKBA explains, the basic premise behind the concept of sponsorship is that “those who benefit the most from migration (that is, employers, educational providers or other bodies who are bringing in migrants) should play their part in ensuring that the system is not abused.”[51]

    Employers who wish to employ non-EEA nationals in the UK must first apply to become a licensed sponsor (or join an overarching sponsor’s scheme under Tier 5). In registering with the government to become a licensed sponsor, the employer is agreeing to maintain certain records and carry out administrative tasks to ensure that the migrant is compliant with his or her immigration permission, thus assisting the UKBA in managing and monitoring migrants’ activities within the UK. Assuming that a license is granted, the employer will be issued either an A or B rating. A-rated sponsors may issue Certificates of Sponsorship (COS), while B-rated sponsors must sign up for an action plan to improve their status and pay a fee, and are not permitted to issue COS to new migrants.[52]

    Certificate of Sponsorship

    A COS is a virtual document that contains a unique reference number. Once a COS has been generated, it must be sent to the prospective non-EEA employee, as it will be required when applying for entry clearance (if outside of UK) or leave to remain (if applying inside the UK). The COS will automatically become invalid if it is not used to apply for entry clearance/leave to remain within 3 months of allocation.[53]

    There are two categories of COS: restricted and unrestricted. Restricted COS, including Tier 2 (General) positions earning under £152,100, are subject to an annual limit of 20,700 COS. Employers seeking to assign a restricted COS must apply on a case-by-case basis. Unrestricted COS, by contrast, are not affected by this annual cap, although sponsors are given an annual allocation of unrestricted COS based on their anticipated need. It is possible to apply for further allocation if a sponsor’s limit is met.[54]

    Sponsor Management System

    A COS is generated via the sponsor management system (SMS). The SMS is an online tool that allows sponsors to carry out their day-to-day activities and report changes of circumstance (e.g., a change of employee address or contact details) to UK Visas & Immigration.[55] The organization must delegate responsibilities to employees, referred to as “Key Personnel,” to ensure the system is kept up-to-date. The four roles include (1) authorizing officer, (2) key contact, (3) level 1 user, and (4) level 2 user. The same person, different people, or a combination of both may carry out all of these roles. However, all Key Personnel must be permanently based in the UK for the duration of their role.[56]

    Duties

    Once the migrant has been assigned a COS and been granted entry clearance/leave to remain, the migrant should be eligible to start working for the sponsor (or the employer registered with the sponsor’s scheme under Tier 5). Depending on the length of sponsorship, sponsors must keep prescribed documentation on file for the duration of the migrant’s sponsorship, for one year, or until inspected by a UKBA visiting officer, whichever period is longer. Sponsors also must report to the Home Office certain migrant behavior, such as failure to attend the first day of work or excessive absences. Failure to report such activities, or to keep relevant documentation on file, may result in license revocation, civil penalties, and criminal penalties for the sponsor.[57]

    Tier 2

    Tier 2 enables UK employers to hire nationals from outside the resident workforce.

    As with Tier 1, most Tier 2 applicants must evidence English language proficiency and a minimum level of funds for self-maintenance in the UK. There are some exceptions, including Tier 2 (ICT) and those earning more than £152,100 per year.[58]

    On April 6, 2013, the following changes to the Immigration Rules affecting Tier 2 took force:[59]

    • The codes of practice were updated to reflect the new Standard Occupational Classification 2010 system.
    • The minimum appropriate rates for skilled workers in each occupation were modified to reflect differences in pay between new and experience/settled workers. Pay for experienced workers was set at the 25th percentile using the Annual Survey of Hours and Earnings (ASHE), while the pay threshold for new entrant employees was set at the 10th percentile.
    • Tier 2 salary thresholds were increased in line with wage inflation of 1.4% (rounded to the nearest £100). This means, for example, that Tier 2 (General) jobs were raised from £20,000 to £20,300, Tier 2 (ICT—Short-Term Staff) were raised from £24,000 to £24,300, and Tier 2 (ICT—Long-Term Staff) were raised from £40,000 to £40,600.
    • A set of criteria for identifying suitable media replaced the previous lists of specific publications and websites where vacancies can be advertised for resident labor market test purposes.[60]

    Tier 2 (General)

    The Tier 2 General category is for those holding an offer of a skilled job in the UK that cannot be filled by a settled worker.[61]

    To qualify under the Tier 2 General category, applicants must either meet the requirements of the resident labor market test (RLMT), fill a job on the shortage occupation list, be offered a salary of at least £152,100, switch into Tier 2 from certain specified categories, or be extending their stay in the same job for the same employer.[62] Additionally, COS issued for this subcategory must be at NQF level 6, or in a creative sector occupation at NQF level 4 or higher.[63] Applicants who do not earn more than £152,100 per year must in most cases receive an annual salary of at least £20,300.[64]

    Leave to enter is granted for up to 3 years plus 1 month and leave may be extended for a further 3 years. Tier 2 General migrants are not permitted to reapply under Tier 2 until 12 months has passed since the expiration of their last leave in the category, but individuals with salaries of at least £152,100 are exempt from this exclusionary period. After 5 years of continuous residence in this subcategory, migrants may apply for permanent residence.[65]

    As noted above, there is an annual limit of 20,700 for most Tier 2 General applications, as they require the issuance of restricted COS.

    Tier 2 (Intra-Company Transfer) (ICT)

    The Tier 2 ICT category is for employees of a multi-national company who are being transferred to a UK-based branch of the same organization (linked by common ownership or control) either on a long-term basis or for frequent short visits.[66] For applications made on or after April 6, 2010, this category no longer leads to permanent residence.[67] Additionally, with some exceptions, migrants under Tier 2 (ICT) are not permitted to reapply under Tier 2 until 12 months has passed since the expiration of their last leave in the category, but individuals with salaries of at least £152,100 are exempt from this exclusionary period.[68]

    Tier 2 (ICT) comprises four subcategories:

    Short-Term Staff

    This is for employees being transferred to a UK branch of their employer for up to 12 months to fill a position that is unable to be filled from the resident labor pool. To qualify, applicants must receive the appropriate salary (£24,300 and above) and must have been employed by the sponsoring organization for at least 12 months immediately before the date of application. Jobs must be at NQF level 6 or a creative sector occupation of at least NQF level 4.[69]

    Tier 2 (ICT—Short-Term Staff) may receive leave for up to 12 months.

    Long-Term Staff

    This is for employees being transferred to a UK branch of their employer for more than 1 year to fill a position that is unable to be filled from the resident labor pool. To qualify, applicants must receive the appropriate salary (£40,600 and above) and must have been employed by the sponsoring organization for at least 12 months immediately before the date of application. Jobs must be at NQF level 6 or a creative sector occupation of at least NQF level 4.[70]

    Tier 2 ICT—Long-Term Staff may receive initial leave for up to 3 years and 1 month, with the possibility to extend for 2 to 3 years depending on the previous leave granted, or, if they earn at least £152,100, up to an additional 6 for a total of up to 9 years.[71]

    Graduate Trainee

    This subcategory is intended for recent graduates being transferred as part of a structured graduate training program that clearly defines progression toward a managerial or specialist role. They must have been employed by the sponsoring organization for at least 3 months immediately before the date of application. Jobs must be at NQF level 6 or a creative sector occupation of at least NQF level 4.[72]

    Tier 2 ICT—Graduate Trainee migrants may receive leave to enter for a total of up to 12 months.[73]

    Skills Transfer

    This subcategory is for employees in a graduate occupation being transferred to a UK branch of their multinational organization to learn skills and knowledge they will need to perform their jobs overseas, or to impart their specialist skills to the UK workforce. Applicants need not be employed overseas by the sponsoring organization before applying.

    Tier 2 Skills Transfer migrants may be granted leave to enter for a total of up to 6 months.

    Tier 2 (Sportsperson)

    The Tier 2 Sportsperson category is for elite sportspersons or coaches who will contribute significantly to the development of their particular sport.

    To qualify under the Tier 2 Sportsperson category, applicants must be endorsed by the relevant governing bodies of their sports and then be assigned certificates of sponsorship from the sponsoring employers.[74]

    Qualifying applicants may receive leave to enter for 3 years and may apply for further leave of 3 years.[75]

    Tier 2 (Minister of Religion)

    The Tier 2 Minister of Religion category is intended for applicants who have received an offer of employment as a pastor, missionary, or member of a religious order within the UK.

    To qualify as a Tier 2 Minister of Religion migrant, applicants must be sponsored by the employing organization and receive a letter from their sponsor detailing the pay and how the role is supernumerary, or meets the requirements of the RLMT.[76]

    Applicants may receive leave to enter for 3 years and may extend their leave for up to a further 3 years.[77]

    Tier 5

    Tier 5 is designed to allow non-EEA/Swiss nationals to live and work in the UK for short periods of time. The Tier is comprised of two major categories, Tier 5 (Temporary Workers) and Tier 5 (Youth Mobility Scheme).

    Tier 5 (Temporary Workers)

    Tier 5 Temporary Workers must have both a sponsor and a valid certificate of sponsorship (COS). The category is divided into the following subcategories:

  • Creative and Sporting—for those wanting to come to the UK to work as sports people, entertainers, or creative artists. Initial leave may be granted for up to 12 months, while extensions range from 12 to 24 months depending on the type of work.[78]
  • Charity Workers—for migrants seeking to perform unpaid voluntary work in the UK that is directly connected to the sponsoring organization’s mission. Charity workers are limited to a total stay of 12 months with no option to extend.[79]
  • Religious Workers—for individuals who will temporarily engage in religious work for a sponsoring entity. Migrants in this subcategory may receive permission to stay or remain for a total of up to 24 months.[80]
  • Government Authorised Exchange (GAE)—for persons wanting to come to the UK through approved schemes that aim to share knowledge, experience, and best practices through work placements. Overarching government-licensed bodies like the Law Society and BUNAC act as sponsors and manage the exchange scheme. This category must not be used to fill job vacancies or to bring unskilled labor to the UK. Migrants granted entry before April 6, 2012, as well as individuals granted entry in a Research or Training Programme scheme on or after April 6 in this subcategory, may receive an initial grant of 24 months. All other migrants are now limited to a maximum stay of 12 months.[81]
  • International Agreement—for those coming to the UK under contract to provide a service covered under international law. Such services include those covered by the General Agreement on Trade in Services (GATS) and similar agreements between the UK and another country. Those coming under this subcategory, with a few exceptions, may receive permission to stay in the UK for a total of up to 24 months.[82]As with all other tiers within the PBS, applicants must obtain points for attributes. Successful applicants under Tier 5 (Temporary Worker) will score 30 points for a COS and 10 points for maintenance. To meet the maintenance requirement, an applicant must show evidence that he or she has at least £900 of personal savings for a consecutive period of 90 days ending at least in the past month. Alternatively, A-rated sponsors may certify that they will support the applicant for the first month following arrival.[83]

    Tier 5 (Youth Mobility Scheme)

    Tier 5 Youth Mobility Scheme (YMS) is for sponsored young people from participating countries (Australia, Canada, Japan, Monaco, New Zealand, South Korea, and Taiwan) who wish to experience life in the UK.[84] The scheme is also open to British Overseas Citizens, British Overseas Territories Citizens, and British Nationals (Overseas).[85] The applicant’s government acts as his or her sponsor while in the UK. There is an annual allocation of places on the Tier 5 YMS for each participating country and places are assigned accordingly.

    Applicants must attain 40 points for attributes and 10 points for maintenance. The applicant will receive 30 points for being a citizen of one of the above-mentioned states. Applicants will receive a further 10 points for being over 18 years of age but less than 31 years of age on the date that the application is made. To receive the final 10 points necessary, applicants must show evidence they hold £1,800 in a personal bank account on the date of the application for entry clearance.[86]

    Tier 5 YMS applicants may not have any children under the age of 18 for whom they are financially responsible. Additionally, migrants under this category must not have previously spent time in the UK as a Working Holidaymaker or a Tier 5 (YMS) Temporary Migrant. With a few exceptions, successful applicants are free to undertake whatever work they wish during their stay in the UK.[87]

    Successful applicants will be granted a period of leave not exceeding 24 months and are forbidden from switching into another route or extending their stay.[88]

    Biometric Residence Permits (BRP)

    Non-Swiss or non-European Economic Area (EEA) nationals over 6 years of age who apply for leave to remain (not leave to enter) in the UK must register biometric data as part of their visa applications. An applicant’s biometric data and permission to remain in the UK will be recorded in a Biometric Residence Permit (BRP).

    All relevant applicants and their dependents must now attend a 5-to-10-minute appointment in person to enroll facial and fingerprint information, which will be encoded on a secure readable microchip embedded within the BRP. The credit card-sized BRP should be carried with the migrant at all times, and presented with the migrant’s passport upon entry and exit to the UK; without it, the migrant may be refused entry to the UK. The information stored on the BRP is designed to be scanned upon entry to the UK and by UK Visas & Immigration staff performing compliance visits.[89]

    6. DEPENDENTS

    Those qualifying to enter on the grounds of UK ancestry or under Tier 1, Tier 2, and Tier 5 (Temporary Worker) may apply to bring dependents to the UK with them. Where necessary, applicants will be required to evidence the claimed relationship between themselves and their dependents (by providing documentation such as original marriage certificates and birth certificates).

    Those applying to enter the UK under Tier 1, Tier 2 (with some exceptions), and Tier 5 (Temporary Worker) must demonstrate that they already hold the funds to support their dependents for their first month in the UK. If a Tier 2 dependent is applying at the same time as a Tier 2 migrant, a Tier 2 sponsor who has achieved an “A rating” with the UKBA may give an undertaking that they will maintain and accommodate the dependent for a month following arrival.

    Without sponsorship by an A-rated sponsor, applicants will be required to demonstrate that for a 3-month period closely preceding their application, they have held the necessary funds to support themselves and their dependents during their first month in the UK. Applicants should therefore ensure that their bank balance is above the required threshold (and never dips below it until they enter the UK) for at least 90 days before they submit their applications.

    Those applying to enter the UK on the grounds of UK ancestry must evidence that they are able to maintain and accommodate any dependents who are applying with them. There is greater flexibility in the kinds of evidence they may use than under Tiers 1, 2, and 5.

    Tier 4 (General) student migrants who are sponsored by a higher education institution on a course at NQF level 7 or above that lasts 12 months or more, or are a new government-sponsored student following a course which lasts longer than 6 months, may also bring dependents with them to the UK. The dependent route is not currently available for a family member of a Tier 4 (Child) student migrant.[90]

    7. EEA AND SWISS NATIONALS AND DEPENDENTS

    European Economic Area (EEA) and Swiss nationals have the right to live in the UK provided that they are working or studying here (and have registered or obtained permission in some cases) or can support themselves and their family in the UK without becoming an unreasonable burden on public funds. When entering the UK, EEA and Swiss nationals need to show their passports or national identity cards.

    EEA and Swiss nationals and their family members may work in the UK, set up businesses, manage companies, and set up local branches of companies. Except for Bulgarian and Romanian nationals, they do not need to apply for work permission.

    Most Bulgarian and Romanian nationals must apply for an Accession Worker Card to work in the UK, and their employers may have to apply for a work permit for them (depending on the type of work). After working continuously with permission in the UK for a period of 12 months, Bulgarians and Romanians are exempt from the work authorization requirement and may obtain a registration certificate confirming this exemption. Bulgarian and Romanian nationals who meet highly skilled migrant criteria may be able to apply for a registration certificate immediately without work authorization. It should be noted, however, that in January 2014, the work restrictions currently in place for Bulgarian and Romanian nationals will be lifted and citizens of both countries will enjoy the same rights as all other members of the EU.

    On April 6, 2013, a £55 fee for EU residence documents was introduced.[91] While these IDs are voluntary at the moment, it has been suggested by some that this could be the first step toward requiring EU citizens to register.

    Close family members may join EEA and Swiss nationals in the UK. Family members who are not EEA or Swiss nationals and are coming to the UK permanently or on a long-term basis should apply for an EEA family permit at their nearest BDP before coming to the UK to facilitate their entry.

    Family members of EEA or Swiss nationals who are also EEA or Swiss nationals themselves are not required to have immigration permission. Family members may apply for a residence card to confirm their right of residence under European law.

    EEA and Swiss nationals who have exercised European Treaty rights in the UK for a continuous period of 5 years (examples: working, studying, economic self-sufficiency) and their family members acquire permanent residence automatically but may apply for confirmation of their permanent residence, if they wish.

    8. PERMANENT RESIDENCE

    Permanent residence in the UK is known as indefinite leave to remain (ILR). A person is deemed to hold ILR in the UK if he or she is ordinarily resident in the UK without being subject under the Immigration Rules to any restriction on the period for which he or she may remain.

    Those holding leave to remain in the UK, depending on their visa category, may be eligible to apply for ILR after living legally in the UK for a certain length of time (usually between 2 and 5 years). Holding ILR for a certain period (depending on absences from the UK) is the usual intermediary stage between holding limited leave to remain in the UK and full naturalization as a British citizen.

    Please note that this briefing is meant for reference only and should not be a substitute for taking legal advice.


    [7] See generally UKBA Police Registration Guidance (Feb. 15, 2013).

    [9] UKBA Police Registration Guidance (Feb. 15, 2013) at 8.

    [10] UKBA Police Registration Guidance (Feb. 15, 2013) at 12-13.

    [12] UKBA Business Visitor Guidance (Mar. 19, 2013) at 4-5.

    [13] UKBA Business Visitor Guidance (Mar. 19, 2013) at 9.

    [14] Paragraph 6 of the Immigration Rules defines “Permissible Activity” as “a business activity of a type listed in United Kingdom Border Agency guidance specifying the activities that a business person may undertake during a short-term business visit to the UK.”

    That same paragraph defines “employment” as “unless the contrary intention appears, includes paid and unpaid employment, paid and unpaid work placements undertaken as part of a course or period of study, self employment and engaging in business or any professional activity.”

    [16] UKBA Business Visitor Guidance (Mar. 19, 2013) at 12.

    [39] http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier1/exceptional-talent/.

    [57] Tiers 2 and 5 of the Points-Based System – Sponsor Guidance version 04/2013 at 99-117; see also Tier 2, Tier 4 and Tier 5 of the Points-Based System – Sponsor Guidance Appendix D.

    [60] See section relating to Tier 2 (General) in Appendix A of the Immigration Rules.

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