Chapter 9 Updates - September 2021

Entry for Work

Procedural fairness in refusing visas

In R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41 in October 2020, the Supreme Court held that the Home Office was unfair to a Tier 2 skilled worker when it refused his application to extend his visa without telling him promptly that his sponsor’s license had been revoked.

In November 2020, the Court of Appeal did not extend that to Mr Topadar, a Tier 4 student who had applied to switch to Tier 2 as a general migrant, supplying a certificate of sponsorship showing that he had a qualifying job. Without telling Mr Topadar, the Home Office asked the sponsor for further information. They then refused the application because the sponsor did not reply. Mr Topadar applied for administrative review and tried to add a claim under Article 8 ECHR, and when the review was refused he sought judicial review in the Upper Tribunal, saying there had been a duty to notify him of the request for further information and that his application could be varied at any point before the conclusion of the review process. The Upper Tribunal rejected his arguments and so did the Court of Appeal in Topadar, R (On the Application Of) v Secretary of State for the Home Department [2020] EWCA Civ 1525. It held that the immigration application was decided when the Home Office issued its initial refusal, which was why there were then provisions extending leave during review, and that it was sufficient that the Immigration Rules state that the Home Office can request further information from a sponsor.

In January 2021, the Court of Appeal held in R on the application of Taj v Secretary of State for the Home Department [2021] EWCA Civ 19 that it was not unfair for the Home Office to refuse to extend a Tier 1 entrepreneur visa on the basis that the applicant’s business was not genuine without identifying its concerns and giving him a chance to address them. The difference appeared to be that, in Pathan, the refusal arose from matters outside Mr Pathan’s control and which the Home Office knew about when he did not, whereas Mr Taj was dealing with requirements of the Points-Based System which he knew about, the rules being drafted transparently.

New Points-Based System in force

The new Points-Based System went live on 2 December 2020, just in advance of the end of free movement for British citizens in the EU and for European citizens in the UK. It was also supposed to be part of a simplification of immigration rules.

The old Tier 1 routes were for “high value” migrants. These became Investor, Innovator, Start-up and Global Talent. The old Tier 2 covered sponsored workers and work permit holders, which now became Skilled Workers, with special routes for intra-company transfers, sportspersons and ministers of religion. The old Tier 4 (Tier 3 was always missing) was for students sponsored by higher education institutions, and continued into visas for adult and child students, and the old Tier 5, for people coming for short-term work of up to two years, continued as Youth Mobility, Charity, Creative or Sporting, Government Authorised Exchange, International Agreement, Religious or Seasonal employment visas. The system also includes the UK Ancestry visa (essentially an open work visa for those with a British grandparent), representative of an overseas business visa, and short-term English language student visa.

Old Tier 1 Investors: Maxwell investment scheme

The old Tier 1 Investor visa required applicants to show they had at least £1m under their control to invest in the UK. If the £1m had been loaned to them, they had to show personal assets of at least £2m, and that the £1m was invested in qualifying investments, including investment in a UK registered company.

In 2019 in (JW & Ors) v Secretary of State for the Home Department (Tier 1 Investor; control; investments) [2019] UKUT 393 (IAC), the Upper Tribunal had agreed with the Home Office that a scheme run by Maxwell Asset Management Limited, a UK regulated financial institution, did not qualify applicants for the Investor visa. Under that scheme, Maxwell Holdings Limited, an offshore company, charged a £200,000 fee for arranging for Maxwell Asset Management Limited to loan applicants £1m which they were required to invest in Eclectic Capital Limited, also a UK registered company. Maxwell passed the £1m directly to Eclectic. The owners of Maxwell and Eclectic were a married couple. The Home Office refusal, and the Upper Tribunal confirmation, was based on the £1m not being under the immediate control of the applicants, as they had to invest it in Eclectic.

In May 2021, the Court of Appeal in Wang & Anor, R (On the Application Of) v Secretary of State for the Home Department [2021] EWCA Civ 679 said the investment did satisfy the immigration rules. It said that “control” did not mean “personal availability” but whether the applicants had sole and unrestricted power to direct the loan to be used for a qualifying investment.

New skilled worker visa for refugees and displaced persons from Jordan and Lebanon

A new form of skilled worker visa was proposed in late 2020. Based on experience in Australia and Canada, the “displaced talent mobility” pilot for Talent Beyond Boundaries would offer refugees and those displaced from Jordan and Lebanon a five-year visa leading to settlement on the basis of a job offer from a licensed sponsor, provided it meets the usual minimum salary level and they meet the English language requirement. The worker can change employers once in the UK, and can bring eligible family members. The idea of the scheme is to recognise the difficulty refugees may have in complying with strict requirements for documentary evidence, to engage the assistance of, for example, the International Organization for Migration to help with setting up interviews, to help with making the application itself, and providing support through contacts in the UK.

New visa proposal for “High Potential Individuals”

In July 2021, the government proposed a new visa for “High Potential Individual” applicants so that graduates of a “top global university” would not need a job offer or substantial investment funds or a sponsor, as part of its UK Innovation Strategy. The government’s aim is to take a lead and unleash business, to make the UK the most exciting place for innovation talent, to ensure research, development and innovation that serves the needs of both businesses and places and to stimulate innovation and drive capability in key technologies. There will be definitions, and terms and conditions, to be stated in due course.

Frontier worker visas

Special visas for EEA or Swiss national “frontier workers” opened in December 2020 for people who commuted into Britain to work. Frontier workers were protected under the Brexit Withdrawal Agreement, whichever direction they commuted in. To fall within this category a person had to have established their frontier working before 31 December 2020 and to have obtained permission to continue by 30 June 2021. The detailed provisions are in the Citizens’ Rights (Frontier Workers) (EU Exit) Regulations 2020. The status does not lead to settlement.