What If I Don’t Meet The New Income Threshold Under Tier 2 UK Visa Rules
Following our article on the Changes To Immigration Rules To Come Into Force On 6th April 2016, we have been asked by an individual on LinkedIn to shed some light on the new Tier 2 Immigration Rules that will come into force from April 2016 and the alternatives routes to remain and settle in the UK.
Therefore, I have tried to set out in this article the changes that will take effect as well as a number of options that may be available for those that may not meet the rules under Tier 2 but could be eligible for further leave to remain under an alternative visa category in the UK.
If you are residing in the UK under a Tier 2 work visa, then from 6th April you will need to show that you are earning a minimum of £35,000 per annum if you wish to apply for Indefinite Leave to Remain in the UK after your Tier 2 visa expires.
Once you have been in the UK for five years, if you cannot meet the salary threshold you will be deported.
Although some professions will be exempt, (more on this later), a Home Office analysis of the impact of the changes, conducted in 2012, concluded that teaching, IT, journalism and marketing roles would all be hit hard by the new rule. This is despite the fact that the Government has made it easier for talented technology professionals to enter the UK by developing and promoting the Exceptional Tech Talent Visa.
If you are panicking – don’t. There are a number of options available that you may be able to use to extend your stay in the UK and remain in the job you love. This article will outline some of them in turn, but by no means are these your only options!
If your profession is on the Shortage Occupation List then you will not be affected by the change. PhD level jobs are also exempt, along with nurses, although they only have a temporary reprieve.
If your profession is not exempt then you need to examine the following options carefully and seek professional legal advice if you believe one of them may apply to you.
If you have lived with an EEA family member or an EEA extended family member for five years you will be eligible for a Permanent Residents Card (PRC). This card will prove you have a right to re-enter the UK, apply for certain benefits and have a right to work in the country.
A FP is granted to family members, extended family members and unmarried partners and must be applied for before you come to the UK.
To qualify as a ‘family member’ you must be:
- The spouse or civil partner of an EEA citizen; or
- The dependent child or grandchild of an EEA citizen; or
- The dependent parent of grandparent of an EEA citizen.
To qualify as an ‘extended family member’ for example a sibling or an aunt or uncle you must show that you are dependent of the EEA citizen, are a member of their household or have a serious health condition and they take care of you.
If you are unmarried you can apply for a FP if you can prove you are in a lasting relationship with an EEA national.
Cases involving extended family members and unmarried partners will be decided by assessing the individual circumstances of the applicants and there is no guarantee that an FP will be granted.
Make an Application under the FLR (FP) Form
The FLR (FP) form allows family members of British citizens or settled non-EEA nationals to extend their stay under the following routes:
- Family life as a partner (10 year route)
- Family life as a parent (5 year and 10 year routes)
- Private life in the UK (10 year route)
Unless you are from one of the countries exempted from the requirement or are applying under the 10 year route, you will need to pass a recognised English language test.
You can include some dependents on your application form; however, it will depend on what route you are applying under.
Make an Application under the FLR (O) Form
This form is for applicants whose circumstances fall outside the scope of the Immigration Rules. This route can be used for leave to remain under Article 8 of the European Convention of Human Rights (ECHR) (see below for more on this) or other compassionate grounds. leave to remain is granted only under special circumstances and is completely at the discretion of the Home Office.
Applications under Human Rights Grounds - Article 8 of the ECHR
One of the most common grounds for applying for discretionary leave to remain, (especially for those who have overstayed their visa) is on the right to family life under Article 8 of the ECHR. If you have established a family life, (for example you have married and had a child) whilst in the UK on a Tier 2 visa then you may be able to argue that by deporting you back to your home country, the Home Office is breaching the UK’s Article 8 obligations.
To make a successful application, you should highlight favourable factors such as the strength of your connections in the UK, the length of time you have been in the country, your good character and Employment record.
The Home Office has a duty to consider the ‘doctrine of proportionality’ when deciding whether or not your rights under Article 8 should be over-ruled.
British Ancestry Visa
If you are eligible for a UK Ancestry Visa you can stay in the UK for up to five years and then apply to settle in the country.
To be eligible you must:
- Be a citizen of the Commonwealth
- Prove that one of your Grandparents was born in the UK
- Apply outside the country
If your Mother or Father was born in the UK before 1983 then you may be automatically eligible for British Citizenship.
If your Application is Refused – Administrative and judicial review
If you application under any of the above routes is refused you can challenge the decision via administrative or judicial review.
Administrative review allows you to challenge a decision made by an official on the basis that they made a ‘working error’. For example, if the official reviewing your application refused it on the basis that it was ‘out of time’ and they were mistaken, then you could apply for administrative review. If successful, the Home Office would have to consider your application again.
judicial review enables an individual to challenge the legality of a public body’s decision. It is not concerned whether the decision was correct or not, but rather, whether the law has been correctly applied when making the decision.
judicial review is only available when all other routes have been exhausted.
If you are concerned about your right to remain in the UK after 6th April 2016 you need to seek legal advice. OTS Solicitors has a strong reputation for being one of the best Immigration law firms in London and we have years of experience in making visa applications as well as running both administrative and Judicial Reviews of Home Office decisions. You can make an appointment with one of our experienced Immigration solicitors by phoning our London office on 0207 936 9960. We look forward to hearing more about how we can assist you with your Immigration concerns.