IMMIGRATION UPDATE | SUMMER 2007

              IMMIGRATION LAW





              INTO EFFECT



                                 INTRODUCTION                                  IMMIGRATION NEWSLETTER –
                                                                               SUMMER 2007

                                 Welcome to the Bates Wells and                U.K. tribunal sides with HSMP visa holder
                                 Braithwaite Immigration Update                denied extension under new rules

                                                                               The Highly Skilled Migrant Programme
                                 The last few months has seen a number         allows highly skilled, foreign-born
                                 of major changes in Immigration Law           professionals to live and work in the United
                                 including, the International Graduates        Kingdom (U.K.) if they successfully qualify
                                                                               under a points-based system. The HSMP
                                 Scheme, the announcement from the
                                                                               visa was introduced in 2002 and the
                                 Immigration Minister for the timetable for    program has undergone a number changes
                                 the New Points Based System, and the          over the years.
                                 Life in the U.K. test for permanent resi-
                                 dence; all of these are covered in this       An appeal by an individual against a
                                                                               deportation order made by the British
                                                                               government has been won. His application
                                                                               for extension of stay under the Highly
                                 We have also included recent case law         Skilled Migrant Programme (HSMP) was
                                 and changes relating to other jurisdictions   rejected by the government after changes to
                                                                               the program were applied retrospectively. He
                                 which we think will be of interest.
                                                                               then challenged the order under human
                                                                               rights laws.
                                 We are also very pleased to announce the
                                 appointment of Chris Randall to sit as a      Up to an estimated 16,000 people who
                                                                               were granted HSMP visas under the old
                                 Part-Time Immigration Judge.
                                                                               rules may be affected by the retrospective
                                                                               application of the new rules. Those who
                                 If you have any issues or questions arising   cannot qualify under the new HSMP rules,
                                 from the topics covered in this update,       or qualify under other immigration
                                 please contact:                               categories, face deportation when their visas
                                                                               On 7 November 2006, the program was
                                 Philip Trott, Head of the Immigration         temporarily suspended while a major
                                 Department: or       overhaul was implemented. On 5 December
                                 Sue Kukadia:       2006 it was reopened under new rules,
                                                                               which required those who successfully came
                                                                               to the U.K. under the previous HSMP
                                                                               criteria to qualify under the new criteria if
                                                                               they wish to obtain an extension to their
                                                                               HSMP visa.

                                                                               George Joseph, an Indian national who holds
                                                                               a PhD in chemistry, arrived in the U.K.
                                                                               under the earlier HSMP rules. He sold his
                                                                               home and left his job in India to relocate to
                                                                               the U.K. After the changes to the HSMP
                                                                               program were enacted, Joseph was unable to
                                                                               qualify for an HSMP extension and he
                                                                                            IMMIGRATION LAW UPDATE | SUMMER 2007

challenged this refusal before an                their admission under the provisions of the
Immigration Judge.                               Immigration Rules relating to Visitors.
                                                 Thus, when a US National, whom we were
At the time of making the original               asked to advise, was refused entry at
application, Mr. Joseph was presented with       Portsmouth when he sought to attend a
"guidance notes" which stated that he could      short sail training course at a well known
expect a route to settlement under the           institution in Cowes, Isle of Wight, because
HSMP scheme, and that revisions to HSMP          the College had not registered with the
criteria would not affect his application.       DfES we were able to advise. We pointed
When submitting an application to extend         out in representations to the Immigration
his HSMP visa if Mr. Joseph could                Officer that there was a long-standing
demonstrate that he was economically             practice of admitting such students under
active, or that he had taken all reasonable      the Immigration Rules relating to Visitors.
steps to become so, he could expect his          Indeed we obtained information from the
HSMP visa to be renewed. The court agreed        College that other U.S. citizens had been
with him.                                        admitted to attend the same course as
"This case is in fact stronger than any
'legitimate expectation' cases, as here Mr.      After extensive representations, the
Joseph changed his position to his               Immigration Officer abandoned every ground
detriment as a result of what he was told,"      of refusal except for the one in which they
said Immigration Judge Digney .                  relied upon failure by the College to be on
"There is no overriding public interest that     the DfES Register. The Immigration Officer
demands here the treatment to which Mr.          pointed out that the concession as
Joseph was subjected ... I conclude that the     described in the IDIs (Immigration
decision of the respondent is therefore not      Department Instructions) only allow the
in accordance with the law."                     admission of short term students as Visitors
                                                 if the requirements of the Immigration
The Tribunal’s decision is a major victory       Rules for students were in fact met. The
that may offer relief to many people caught      Immigration Officer argued that those
up in the changes.                               requirements included the need to be on
                                                 the DfES Register. There was no issue
Colleges must register on the DfES Register      concerning the actual bona fides of the
                                                 College and indeed the course had a world
Colleges which admit overseas students           renown reputation. It was also clear in this
must be included on the Department for           case that an Immigration Officer at another
Education & Skills (DfES) Register of            port had advised the U.S. citizen that he
Education & Training Providers with affect       could seek admission to the United
from 1 May 2007. This requirement has            Kingdom as a Visitor.
been part of paragraph 57 of the
Immigration Rules for some time. A recent        In the end, the College agreed to register
change in the law prohibits visitors to the      and temporary admission for the passenger
U.K. from undertaking any studies.               which was extended for over a month. The
                                                 Immigration Service had promised to admit
Many overseas nationals come to this             the passenger once the College is
country for very short term courses and the      registered. In the meantime, as he has
instructions to Immigration Officers allow for   been granted temporary admission he could


                                 carry on with his course pending a decision      students to take up a career in the U.K. by
                                 to admit him. The lesson to be learned           providing an easy route into another
                                 from this is that any institution which          immigration category, such as the Highly
                                 proposes to admit overseas students should       Skilled Migrant Programme (HSMP).
                                 immediately seek to join the DfES Skills
                                 Provider Register. It is difficult to see how    U.K. Immigration Minister announces
                                 the Immigration Rules prohibiting study by       timetable for the New Points Based System
                                 visitors after the 1 September 2007 will in
                                 fact be applied. Further representations         The new U.K. Points Based System (PBS)
                                 need to be made to the Home Office to            system was first announced by Home
                                 alter this provision as it is difficult to see   Secretary John Reid last year, and has had
                                 why anyone could legitimately object to a        several key features already integrated into
                                 visitor undertaking a short term vocational      immigration policies and legislation. The
                                 course.                                          Highly Skilled Migrant Programme (HSMP)
                                                                                  already uses a points-based evaluation
                                 International Graduates Scheme comes into        system.
                                                                                  Applicants under the new system would
                                 The U.K's new International Graduates            need to gain a sufficient number of points.
                                 Scheme (IGS) came into effect on 1 May           Scoring is based upon a balance between
                                 2007. Non-European Economic Area                 the skills of the applicant and skills needed
                                 students who apply for and receive approval      in the U.K., as determined by government
                                 may remain in the U.K. and work for up to        research and statistics. It is designed to
                                 one year after completing their studies.         replace more than 80 different routes of
                                                                                  entry into the country with a five-tier
                                 A student accepted under IGS will have           structure split into different skill levels.
                                 very generous opportunities with very few
                                 immigration restrictions on work                 In all but the first tier, migrants will need a
                                 opportunities.                                   sponsor for their application to be
                                 The new Scheme supersedes the previous
                                 Science and Engineering Students (SEGS)          The first tier will become effective from the
                                 Scheme, which only allowed students on           beginning of 2008 and will be for highly
                                 specific disciplines related to science and      skilled migrants including scientists,
                                 engineering to remain in the U.K. after          doctors, and entrepreneurs. Migrants
                                 graduation. The IGS scheme allows                entering the U.K. under this tier will not
                                 students of any scheme to remain in the          need a job offer from a sponsor.
                                 U.K. for a year, with the aim of encouraging
                                 students to take up a career in the country.     The following year the second tier will
                                                                                  become effective, covering skilled workers
                                 If a student wishes to qualify, a student        such as nurses, teachers and engineers who
                                 must obtain a bachelor's degree, Master's        have job offers in shortage areas. Migrants
                                 degree, or a PhD or other postgraduate           in this tier will need a job offer from a
                                 certificate or diploma from a recognized         sponsor.
                                 higher education institution in the U.K.
                                 Unlike SEGS, any degree class (grade) is         Tier three will cover low-skilled workers such
                                 acceptable (under SEGS an applicant had          as one-contract construction workers and
                                 to have received at least a 2.2).                catering staff. Migrants in this category will
                                                                                  require a job offer from a sponsor.
                                 The aim of the IGS is to encourage foreign
                                                                                  Tier four for students will be introduced at
                                                                                  the beginning of 2009. Students covered
                                                                                              IMMIGRATION LAW UPDATE | SUMMER 2007

                                                  FAMILY IMMIGRATION ISSUES FOR
                                                  COMMERICAL CLIENTS

under this tier are those paying for tuition in   The firm has increasingly been involved in
the U.K. In this case the educational             advising overseas national who are senior
institution is the sponsor which will be          employees of major financial institutions on
responsible for ensuring compliance with          immigration matters concerning their
the immigration rules.                            families who wish to accompany them from
                                                  overseas. There are many family members
Tier five will include working holiday makers
                                                  who will be affected by family immigration
as well as professional athletes and

Life in the U.K. test for permanent               • Elderly dependant relatives who wish to
residence comes into effect                       reside in the U.K.

In our first newsletter we informed you of        The law requires that the elderly relative
the introduction of new rules for people          must first show that he or she has already
applying for settlement in the U.K.               been financially dependant upon their son
                                                  or daughter in the U.K. It is not sufficient
As of 2 April 2007, anyone wishing to gain        to show emotional or other needs. Such
permanent residence in the U.K. more              applications require careful attention to the
commonly referred to as Indefinite Leave to
                                                  evidence and an examination of practical
Remain (ILR) will be required to take a test
                                                  alternatives to applications for admission as
that assesses their knowledge of British life
                                                  elderly dependants. Long term planning of
and culture. They will also be required to
                                                  the immigration affairs of elderly dependant
have proficient knowledge of the English
language at a prescribed level.                   relatives is highly desirable, though not
                                                  always possible
A potential permanent resident will be
required to gain “English for Speakers of         • Children.
Other Language” qualifications if they do
not meet the requisite level of English           We are currently advising senior employees
language ability. If the potential permanent      of financial institutions about the admission
resident has sufficient knowledge of the          of children of parents overseas following
language, then he can then proceed to the         their divorce. The applicants are not told by
test of British values, society, and culture.
                                                  the Embassies what they are to prove to
                                                  make a successful application. The parent
The test is called "Life in the U.K.” and is
                                                  who lives here has to show that he or she
designed to encourage people to learn
                                                  has had the “sole responsibility” for that
English and also to learn about British law,
democratic processes, and traditions. The         child’s upbringing. Peter Moss of this firm
hope is that migrants will fully integrate        has worked on sole responsibility cases for
themselves into British society earlier,          30 years and is currently helping clients
before becoming full citizens.                    through this legal minefield.

Previously, the Life in the U.K. test had         • Overseas Adoption.
only been a requirement for gaining British
citizenship. People applying for                  We work closely with leading firms of family
naturalization also must take the test.           lawyers in this area. Immigration Officials
                                                  and local authority social services
                                                  departments often misinterpret the law. In


                                                                                    OTHER JURISDICTIONS

                                                                                    Quota for U.S. H-1B Exemption visa
                                 reality there are many ways to obtain the
                                                                                    reached for fiscal year 2008
                                 child’s legitimate entry to the U.K. other
                                 than through adoption in the U.K.
                                                                                    In 1990, the U.S. H-1B visa program was
                                                                                    enacted which allows U.S. businesses to
                                 A practical approach to family immigration         employ foreign workers in specialized,
                                 issues for the expatriate worker.                  highly skilled occupations, and is especially
                                                                                    intended to bring skill professionals such as
                                 There are some unpublished concessions             researchers, scientists, engineers, and
                                 still in operation in this area, particularly in   software developers to the U.S.
                                 relation to the admission of the children of
                                 Intracompany Transferee work permit                The H-1B visa is designed specifically to
                                 holders who are over 18. We regularly advise       bring foreign-born workers to the U.S. who
                                 in this area.                                      have skills that are in shortage with U.S.
                                                                                    business interests. The H-1B visa is issued
                                                                                    to an applicant who is coming to the U.S. to
                                                                                    perform services in a prearranged
                                                                                    professional job. To qualify, the applicant
                                                                                    must hold a bachelor’s or higher degree (or
                                                                                    equivalent) in the specific specialism for
                                                                                    which employment authorization is being

                                                                                    The United States Citizenship and
                                                                                    Immigration Services (USCIS) announced on
                                                                                    4 May 2007 that they have received the
                                                                                    maximum number of applications (more
                                                                                    commonly referred to as petitions)
                                                                                    requesting exemptions to fill the quota of
                                                                                    20,000. The exemptions are for "foreign
                                                                                    workers who have earned a master's degree
                                                                                    or higher from a U.S. institution of higher

                                                                                    Normal H-1B petitions not subject to
                                                                                    exemptions are capped at 65,000 per fiscal
                                                                                    The final receipt date for such submissions
                                                                                    was set at 30 April 2007. USCIS started
                                                                                    rejecting exemption petitions that were
                                                                                    received on or after 1 May 2007.

                                                                                    Exemption petitions received on or before
                                                                                    30 April 2007 will be subjected to a
                                                                                    random computer generated selection
                                                                                    process. Those not selected will be rejected,
                                                                                    with documents and fees returned to the
                                                                                    applicant, unless another basis for an H-1B

                                                                                               IMMIGRATION LAW UPDATE | SUMMER 2007

exemption exists. Universities and qualified     The amendments to the Migration Act are
research institutions do not technically have    intended to ensure that employers of
a cap on H-1B visas; if they can meet            temporary skilled workers from overseas face
criteria for a required skill, they may          tougher penalties should they break their
continue to submit petitions to allow new        "sponsorship obligations." The most serious
workers into the country.                        offenders, such as those that fail to pay the
                                                 minimum salary or those who use workers in
The earliest date an applicant can file for an   unskilled jobs, will face civil penalties.
H-1B visa subject to the exemption cap for
fiscal year 2009 is 1 April 2008.                The DoIC will also have increased powers for
                                                 enforcing employer compliance with the
Petitions for current H-1B workers to receive    457 visa program, including conducting
H-1B visa renewals do not count toward the       audits of employers and performing on-site
congressionally mandated cap. USCIS will         inspections. The Office of Workplace
continue to process petitions that:              Services will have increased powers to
                                                 investigate breaches of the Minimum Salary
• extend the amount of time a current H-1B       Level.
worker may remain in the US
• allow H-1B workers to change employers         Many of the current changes are a direct
• allow current H-1B workers to work in a        response to protect immigrants, as well as
second H-1B position                             to protect resident workers and law-abiding
Australia announces changes to skilled
temporary visa laws                              The DoIC also put in place will be formal
                                                 fast-tracking of application for employers
The Australian government announced              who have shown a strong track record of
changes to the Skilled Temporary Visa Laws.      complying lawfully with the 457 visa
Australia has been examining its                 program. Such employers will be given
immigration laws and policies since the          priority to help streamline their access to
summer of 2006, and it is now beginning to       skilled workers from abroad.
implement many changes.
                                                 These changes will be implemented later in
Among the recent changes to the Skilled          the year, with no set date announced.
Temporary Visa category (457 subclass visa)
are new civil penalties for employers who        From 1 July 2007, employers will be
break the law, these include:                    required to make sure that their sponsored
                                                 migrant workers have English language skills
• Increased powers for the Department of         at or above a score of 4.5 in an
Immigration and Citizenship (DoIC) and the       International English Language Testing
Office of Workplace Services who will now        System (IELTS) test. In some cases a
have powers to investigate employers             migrant worker may need a higher level as
• Faster processing of applications for some     required by licensing or registration.
• A higher English language requirement for
an applicant to be eligible for a Skilled
Temporary Visa (457 subclass visa).


For enquiries about any points covered in this Update, please contact:

Philip Trott                                  020    7551     7785     
Christopher Randall                           020    7551     7725     
Peter Moss                                    020    7551     7846     
Emma Cohen                                    020    7551     7785     
Sue Kukadia                                   020    7551     7767     
Ben Maitland                                  020    7551     7817     
Seema Pandya                                  020    7551     7885     


For advice in other areas, please contact:

Charity & Social Enterprise                   Stephen Lloyd            
Competition Law                               Julian Blake             
Corporate / Commercial                        Peter Bohm               
Dispute Resolution                            Malcolm Robson           
Education Law                                 Julian Blake             
Employment Law                                William Garnett          
Environment                                   Stephen Lloyd            
Film & Television                             Sean Egan                
Health & Social Care                          Julian Blake             
Insolvency                                    Malcolm Robson           
IP / IT & Information Law                     Sean Egan                
Private Client                                Hugh Craig               
Property                                      Anthony Cartmell         
Property Dispute Resolutiom                   Lesley Robinson          
Public & Administrative Law                   John Trotter             
Sports                                        Jonathan Ebsworth        
Theatre & Arts                                Sean Egan                
Trade Associations                            Andrew Studd             


If you have any comments or suggestions, requests for other departmental updates, or
would like to notify us of any changes to your contact details, please contact Mona
Rahman at

The information contained in this bulletin is necessarily of a general nature.

Specific advice should be sought for specific situations.

Bates Wells & Braithwaite
2-6 Cannon Street
London EC4M 6YH

Tel: +44 (0) 20 7551 7777
Fax: +44 (0) 20 7551 7800

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