A Royal Wedding: Meghan Markle’s possible visa violation and her U.K. immigration options

As we share in the celebrations for the forthcoming Royal Wedding, here at Talley & Barrow, LLP Immigration Advisors, we’ve cast a professional eye over Meghan Markle’s immigration options, and why we think she may have already violated the terms of her visa.

 

Meghan Markle’s Canadian residency: will it make a difference to her U.K. immigration options?

 

For the past seven years, Meghan Markle has made Toronto, Canada her home; which is not entirely surprising as her legal drama series, ‘Suits’, is filmed in that country. A non-Canadian individual who resides in Canada for at least five years may apply for permanent residency there. Whether Ms. Markle did in fact apply and was granted a permanent residency remains unknown.

 

As Canada is a Commonwealth country, under Schedule 3 of the British Nationality Act 1981, all Canadian citizens are Commonwealth citizens (as is the case for the other 51 Commonwealth countries). If Ms. Markle had been granted a permanent residency she would have then been able to apply for Canadian citizenship and consequently become a Commonwealth citizen.

 

The U.K. boasts special immigration options for Commonwealth citizens:

 

Right of abode in the U.K. – a right of abode allows any Commonwealth citizen to freely enter and live in the U.K. without any immigration restrictions either because of their parents or because they are or were married to someone with right of abode.

 

  • Parents – one of the parents of a Commonwealth citizen was born in the U.K. and a citizen of the U.K. and colonies when the Commonwealth citizen was born; the individual became a Commonwealth citizen on 31st December 1982; and the individual did not stop becoming a Commonwealth citizen at any point after 31st December 1982[i].
  • Marriage – a female Commonwealth citizen can get a right of abode through marriage, in which she must have married an individual with right of abode before 1st January 1983, and not have stopped being a Commonwealth citizen at any point after 31st December 1982[ii].

 

U.K. Ancestry visa – a Commonwealth citizen can to come the U.K. for up to five years, with the possibility to settle permanently in the U.K. after five years, if they can show that at least one of their grandparents was born in the U.K.[iii]”. The Commonwealth citizen must be aged 17 or over, be able and intend to work in the U.K., and support themselves and their dependents without help from public funds[iv].

 

How does this apply to Meghan Markle? Without any debate, Meghan Markle will not be eligible for either of the additional immigration options, even if she had a permanent residency in Canada. It is believed that neither of her parents were born in the U.K. Her mother is of African-American descent and her father has Dutch-Irish ancestors and she is therefore unable to claim right of abode through her parents. Demonstrably claiming right of abode through marriage is impossible. Despite her alleged British roots (in which her great-great grandmother was “born in England”) Ms. Markle still does not meet the eligibility requirement under the U.K. Ancestry visa.

Photo courtesy @kensingtonroyal – Instagram

Can Meghan Markle qualify for a Tier 1 Visa?

 

The Tier 1 visas are for non- European Economic Area “entrepreneurs and investors with significant business funds available to set up or invest in a U.K. business, university graduates with a business plan which has been endorsed by an appropriate organisation, and the very few people who are internationally recognised as an exceptional talent in their field”[v].

 

  • Tier 1 (Entrepreneur) visa – for individuals who want to set up or take over a business in the U.K., with at least £50,000 investment funds. In practice without funds of at least £200,000 many individuals will find it difficult to apply for this visa[vi]. An individual is permitted to come to the U.K. for a maximum of three years and four months. During this initial three year period, they will be required to establish a business in the U.K., invest the full £50,000 or £200,000 and create a least two full time jobs for workers settled and presently residing in the U.K. for at least 12 months[vii]. An extension of a further two years is allowed and, after a total period of five years in the U.K., the individual may be able to apply for indefinite leave to remain[viii].

 

  • Tier 1 (Investor) visa – for high net individuals who will make a substantial financial investment in the U.K. A significant investment of a minimum of £2 million is required. The individual must show that they are holding funds of £2 million or above, under their own unrestricted control and in a regulated financial institution. If the individual is not holding funds in pounds sterling, the funds must be convertible to £2 million or above. An investment can only be made in “U.K. government bonds, share capital or loan capital in active and trading U.K. registered companies”[ix]. With this visa an individual can stay in the U.K. for a maximum of three years and four months and an extension of an additional of two years is allowed if the individual meets the further requirements. By increasing the amount of the investment, “the route to permanent residency can be accelerated”[x]. An investment of £5 million or more will earn the individual permanent residency after three years and an investment of £10 million or more will earn the individual permanent residency after two years[xi].

 

 

  • Tier 1 (Exceptional Talent) visa – this route is for “exceptionally talented individuals in the fields of science, humanities, engineering, the arts and technology, who wish to work in the U.K. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have demonstrated exceptional promise and are likely to become world leaders or globally recognised in their field of expertise”[xii]. An endorsement is required from either of the following: Tech City U.K., Arts Council England, The British Academy, The Royal Society and The Royal Academy of Engineering[xiii]. This visa is “subject to a limit of 1,000 endorsements in total per year”[xiv]. The individual must go through a two-stage application process; the first stage being the application for the endorsement, and the second stage being the visa application itself. Permanent residency in the U.K. may be applied for after a period of five years.

 

  • Tier 1 (Graduate Entrepreneur) visa – for graduates who have been officially “endorsed as having a genuine and credible business idea”[xv]. An endorsement is required from either the Department for International Trade (DIT) as part of the elite global graduate entrepreneur programme or a U.K. higher education institution if it is an authorised endorsing body[xvi]. The time period for both endorsements are different, a graduate should get a decision on their visa under a DIT endorsement within 3 weeks, whereas under the U.K. higher education institution a graduate can expect to wait within eight weeks to receive a decision. Under this visa, a graduate is permitted to stay in the U.K. for up to one year, and thereafter may apply for an extension for a further year only.

 

How does this apply to Meghan Markle? From the above, both the Tier 1 (Entrepreneur) visa and Tier 1 (Investor) visa seem to be within the Ms Markle’s reach in gaining entrance to the U.K.

 

In terms of the Tier 1 (Investor) visa,  our future Royal is believed to have made more than $50,000 per episode on Suits, with her annual salary being around $450,000, which includes around $80,000 worth of annual sponsorship and endorsements income. It is further believed that Ms. Markle was paid $187,000 and $171,429 for appearing in two films both released in 2010. Her overall net worth is $5 million[xvii]. Based on this, assuming that she opens a U.K. bank account, it will not be difficult for the future Princess to deposit at least £2 million in a regulated financial institution. It is not a necessary requirement that the money has to be physically in the U.K. when she submits her application, the money may be held overseas.[xviii]

 

It also seems Meghan Markle has an entrepreneurial flair, since away from the camera “she is a fashion designer and the founder of a lifestyle website and brand called ‘The Tig’”[xix]. Finances will not be a problem, but as long as Ms. Markle can produce a well thought-out business plan which will survive intense scrutiny from the Home Office, she will be good to go. Or,  more accurately, to stay.

HRH Prince Harry and Meghan Markle
Photo courtesy @kensingtonroyal – Instagram

Can Meghan Markle qualify for a Tier 2 Visa?

 

The Tier 2 visa is the route for non-European Economic Area individuals who wish to work in the U.K. A company or organisation that holds a Tier 2 licence must sponsor these individuals. “A licence is a permission given to a company or organisation to sponsor workers in its business”[xx].

 

When sponsoring a foreign worker for a role in the U.K. under the Tier 2 category, the employer must show that they have ‘tested’ the U.K. labour market in finding a suitable worker who is already settled and present in the U.K., otherwise known as the Resident Labour Market Test. The test obliges an employer to advertise a job vacancy to settled workers for 28 days before extending the job opening to migrant workers.

 

The Tier 2 visa consists of various categories:

 

  • Tier 2 (General) – for skilled foreign workers who have a job offer by a U.K. employer. The foreign worker will be required to have a certificate of sponsorship from a U.K. employer. The visa permits the foreign worker to stay in the U.K. for five years and 14 months, after which permanent residency may be applied for.

 

  • Tier 2 (Intra-Company Transfer) – for foreign workers working for multinational companies who are going to be transferred to a U.K. branch. The foreign worker will be required to have a certificate of sponsorship. This visa is split into three categories: long-term staff (this visa is for transfers of more than 12 months); short-term staff (this visa is for transfers up to and including 12 months); and graduate trainee (this visa is for transfers into graduate trainee programmes for specialist roles). The length of stay in the U.K. is different for each visa type. Long-term staff that earn less than £120,000 are permitted to stay in the U.K. for five years and one month, whereas those earning over £120,000 are permitted a nine year stay. Short-term staff and graduate trainees both have a 12-month permitted stay. The foreign worker can either stay up to the permitted time period stated above or else for that time which is specified in the certificate of sponsorship, whichever is the shorter[xxi].

 

  • Tier 2 (Minister of Religion) – for individuals who have been offered a job in the faith community. The foreign individual will be required to have a certificate of sponsorship. The individual can come to the U.K. with this visa for a maximum of up to three years and one month, or the time specified on the certificate of sponsorship, whichever is the shorter[xxii].

 

  • Tier 2 (Sportsperson) – for internationally recognised sports people and coaches. A certificate of sponsorship is also required. The individual can stay in the U.K. for up to three years, and then apply for an extension of another three years up to a maximum stay of six years[xxiii].

 

How does this apply to Meghan Markle? When Meghan Markle marries Prince Harry, against common belief, she will not become a Princess in her own right, but the Princess Henry of Wales and more commonly the Duchess of Sussex. Being a Princess is a ‘job’. On Princess Charlotte’s birth certificate, which went viral over the internet, we noted that Kate Middleton stated her occupation as the ‘Princess of England and Wales’.

 

It is thus likely that Meghan Markle will be able to qualify under a Tier 2 visa, as she will be entering the U.K. to work. In order for the Royal family to carry out their Royal duties, the Royal family is issued a Sovereign Grant which are funds from the U.K. taxpayer given over to the Queen in order for the Royal family to fund their official duties[xxiv].

 

Based on the requirements of the Tier 2 visa, Prince Harry should have performed a Resident Labour Market Test and searched for a suitable individual to perform the role of a Princess within the U.K. before extending his search overseas. Prince Harry would have been required to advertise the role for a period of 28 days on an approved recruitment platform with a detailed description of the role. Any individual with suitable skills who had applied for the role must be interviewed by the Prince, and if such an individual was not found, Prince Harry would have been allowed to extend his search overseas.

Photo courtesy @kensingtonroyal – Instagram

Was Meghan Markle ‘working illegally’ by carrying out a Royal engagement?

 

After the news of the engagement of Prince Harry and Meghan Markle broke worldwide, the couple carried out their first official public engagement, in Nottingham.

 

Now, without evidence of the type of visa used by Meghan Markle in order to enter the U.K., we must assume that “she does not currently have any type of leave in the U.K. beyond the Standard Visit visa granted to her on arrival at a U.K. airport. A Standard Visit visa can be issued to American citizens without applying at an embassy for permission to do so”[xxv].

 

Under the Standard Visitor visa in the U.K. (which permits a foreigner to visit the U.K. for leisure, for business or for another reason) individuals are not permitted to conduct paid or unpaid work. However, under Immigration Rules Appendix V, 5A, are listed certain allowed business activities, such as attending meetings, conferences, seminars and interviews, giving one-off or short talks and speeches for non-commercial events, attending trade fairs and negotiating and signing deals and contracts.

 

How does this apply to Meghan Markle? The future Princess has undertaken her “first official Royal engagement”[xxvi] in Nottingham: a Royal walkabout. She was seen “meeting the crowds in Nottingham with Prince Harry”[xxvii] and then attending the “Worlds Aid Day charity before heading off to the Nottingham Academy”[xxviii]. As this was Ms. Markle’s first role in her future career which does not come under the permitted business activities under the Immigration Rules Appendix V, 54, it seems that she was working illegally.  However, it is extremely unlikely that a breach of the conditions of the visa will cause an adverse effect on Ms Markle’s immigration record. So, Ms. Markle, you are safe!

 

The advantages of coming to the U.K. on a Fiancée Visa in comparison to a Spousal Visa?

 

The Fiancée visa enables an individual “who has ‘settled status’ in the U.K. to bring their fiancé to join them in the U.K. Settled status means that the individual is ordinarily from the U.K. and has no immigration restrictions on the length of their stay”[xxix]. This visa is also referred to as the “prospective marriage visa”[xxx].

 

The Spousal visa, also referred to as the ‘marriage visa’, “allows married partners of U.K. citizens to immigrate to the U.K. because they are married to an individual who has settled status in the U.K.”[xxxi].

 

Whilst both visas are quite similar in terms of the requirements, there are some practical advantages of coming into the U.K. on a Fiancée instead of a Spousal visa.

 

Time period for getting married – under a spousal visa both partners must be married before they can apply for the visa, whereas, under the fiancé visa a serious intention of getting married within 6 months in the U.K. is required. For some couples who are eager to settle in the U.K. may feel the need to ‘rush’ their wedding but under a Fiancée visa some time to prepare the wedding is given.

 

Easier marriage – “getting married in the U.K. is often easier and less bureaucratic than abroad”[xxxii]. British citizens who get married abroad “need more paperwork (non-visa related, such as, a legalized birth certificate) to get married in another country than foreign nationals getting married in the U.K.”[xxxiii].

 

U.K. issued marriage certificate – a very significant advantage is the “U.K. issued marriage certificate in the English language. If the couple once married are planning their future life together mostly in the U.K., their life may be much easier with the U.K. marriage certificate when dealing with organisations, such as, the NHS and the banks[xxxiv].

 

Separate ways – as a newlywed couple, separating and living in another country from your partner may seem like a nightmare for many. The Spousal visa requires both partners to get married then go your separate ways and live in a different country to your spouse when the foreign spouse applies for the visa[xxxv]. Under the Fiancée visa this is not required.

 

Easier application process for when applying for the spousal visa – when applying for a Spousal visa, as part of the application process, the foreign spouse will be required to answer questions about their British spouse, such as their finances and employment. If the British spouse is in the U.K. when the foreign spouse is completing the form, there may arise some difficulties in completing the questions which are about the British spouse. Under the Fiancée visa, this is not a problem as both partners are very likely to be in the U.K. together, and therefore the questions about the British spouse can be answered swiftly.

HRH Prince Harry and Meghan Markle
Photo: By Mark Cuthbert/Getty Images.

Legally, could the Home Secretary give Meghan Markle a visa or citizenship without going through the usual steps?

No, the Home Secretary of the United Kingdom is not allowed to give Ms. Markle a visa or citizenship without her going through the steps required of any non-EEA national to complete. More specifically, in the case of the citizenship, the Home Office will consider the naturalization of a foreigner only in the case that a set of statutory requirements has been fulfilled and Ms. Markle cannot constitute an exception to this rule.  The only thing that the Home Secretary is allowed to do in order to facilitate the naturalization process, is to permit for some of the requirements not to be fully satisfied. For example, in order for a U.S. citizen to qualify for the British nationality, he or she must fulfil the criteria laid down in Section Six of the British Nationality Act 1981.

 

Namely the applicant must be older than 18 years old; of sound mind; able to communicate effectively in English; of good character; have a good knowledge of the life in the U.K. and have lived, in case she is married to a British citizen, in the U.K. for a minimum of three years, before applying, or for a minimum of five years in case of no marriage or civil partnership. As is understandable from the time restraints in the British Nationality Act, there is no way that Ms. Markle may be granted the British nationality before her marriage to Prince Harry next May and before being a U.K. resident for three years after that. However, Ms. Markle will not be required to prove that she is able to communicate in English effectively since she is a U.S. citizen and thus automatically exempted from this requirement.

 

In addition, she may also not have to prove that she is of sound mind and good character because these requirements can also be certified through her public lifestyle. Furthermore, regarding the visa, the Home Secretary does not have to skip the usual steps, as Ms. Markle is entitled to apply for entry clearance as a fiancée. This is valid for six months and will allow her to remain in the U.K. after the marriage as the spouse of a British national. Or she may obtain a special visitor visa for marriage which is also valid for six months and will allow her to move to the U.K. if, following the marriage, an entry clearance application as the spouse of a British national is approved by the U.S. authorities. We’ve seen there are plenty of alternatives for Ms. Markle to obtain a visa or citizenship. There is no need – legally speaking – for the Home Secretary to offer her different treatment from any other citizen seeking the same thing.

 

Legally, could the Queen give Ms. Markle a visa or citizenship? Or could she request this of the British parliament?

 

Legally one of the powers of the Queen is to “control passports”. That is, the issuing and withdrawal of the British passport fall within the Royal Prerogative and all British passports are issued in the Queen’s name. Even though theoretically this power allows the Queen to grant British citizenship to whomever she wants, in practice she will not act in such a way. Instead the Ministers of the Crown (in this case the Home Secretary) will exercise the power of controlling passports on her behalf, applying the requirements laid down in the relevant Acts that regulate the area.

Regarding the second scale of the question, of whether the Queen can request from the Parliament to grant Ms. Markle a visa or citizenship, theoretically speaking she can do so by exercising her political right to create secondary legislation. More specifically, the Queen when it comes to issues related to the Crown, has the power to create either Orders in Council and Letters Patent. While the first type of these legislature instruments is mainly used by the Ministers, the second one seems quite appropriate to be used in the case of a royal wedding. However, we should keep in mind that the Queen’s powers, including the political ones as these, have been ceremonial for many years now and most of them are being used either by the Prime Minister or the Cabinet Ministers on her behalf. In addition, the fact the United Kingdom has attracted a significant pool of immigrants from non-EEA countries struggling to extend their rights to become permanent residents or obtain the British citizenship, may discourage, the usually politically neutral Queen, to issue a Letter Patent that may imply a type of discrimination originating by the Head of State and potentially cause a constitutional crisis.

Meghan Markle & HRH Prince Harry
Photo courtesy @kensingtonroyal – Instagram

Could an Act of Parliament give Ms. Markle a visa or citizenship?

 

The purpose of an Act of Parliament is to either to create a new law or to change an existing one. These Acts, as the word itself indicates, are the product of the Parliament which consists of the Queen, the House of Commons and the House of Lords. Each Parliament is free to vote on any type of Act that wishes without being bound by the previous Parliaments and without binding the future ones. So, in the case of Ms. Markle, the Parliament, based on its supremacy has theoretically the power to create an Act that will grant her a visa or a citizenship. Given the political consequences that such an Act most probably will cause, the Parliament has to introduce it in a way that will change the existing immigration law and will apply to the all non-EEA immigrants wishing to get a visa or the British citizenship as Ms. Markle. The most practical way of such an Act to be realized, is through the introduction of a Public Bill which constitutes the most common type of Bill and applied to the general population rather than to specific individuals.

As in the case of the Queen, the Parliament even though it is legally permitted to pass an Act that will favour and promote just Ms. Markle’s immigration issue, the potential political and social consequences would likely prevent such a Bill from being introduced. Even if it were, it’s unlikely that it would actually become an Act of Parliament since this would set a precedent for ‘discriminatory treatment’ of the Royal family and could lead to a constitutional crisis.

 

How long might it take Ms. Markle to achieve citizenship if she follows the normal procedure?

 

As we’ve seen, Ms. Markle will have to marry Prince Harry first in order that she may apply for British citizenship under the normal procedure. Following the marriage, Ms. Markle will be able to continue residing in the U.K. as the spouse of a British national for at least three years before she need apply for British citizenship. It should be noted that, even though Ms. Markle may be exempted from some of the application requirements, she will still have to sit the test that will measure her knowledge of  ‘life in the United Kingdom’. Moreover, after the application has been submitted, it will take approximately three months for it to be processed and for a response to be issued. Thus, in order to achieve citizenship, Ms. Markle may well have to wait for at least three years.

Prince Harry and Ms. Meghan Markle arrive in Nottingham for their first official visit together since announcing their engagement.
Prince Harry and Ms. Meghan Markle in Nottingham
Photo courtesy @kensingtonroyal – Instagram

Will Ms. Markle have to give up her American citizenship?

No, according to both the U.K. and the U.S. legal systems, Ms. Markle will be able to keep her American citizenship in addition to the British one. More specifically, the U.K. allows its citizens to have dual citizenship, by enabling them to keep their other nationalities in addition to the British one. The sane rule exactly is applicable in the U.S. So Ms. Markle’s issue of retaining both nationalities is covered and permitted by both legal systems.

 

Do you need a U.K. Visa? Talley & Barrow specialise in all aspects U.K. visas and immigration with a strong emphasis on Spousal visas. Call today for your free consultation  +44 (0)2078594274 or email [email protected].

Works Cited

[i] ‘Prove you have right of abode in the UK’, < https://www.gov.uk/right-of-abode/commonwealth-citizens>, accessed: 10th December 2017

[ii] ibid

[iii] ‘U.K. Ancestry visa’, < https://www.gov.uk/ancestry-visa>, accessed: 10th December 2017

[iv] ibid

[v] Work Permit, ‘Tier 1 Visa for Business People, Investors and those with Exceptional Talent’, Tier 1 Visa Overview, <http://workpermit.com/immigration/united-kingdom/tier-1-visa-business-people-investors-and-those-exceptional-talent>, accessed: 10th December 2017

[vi] ibid

[vii] Liz Cody, ‘Guide to U.K. Business Visas for Non-EEA Citizens’, (26th March 2017, Lexology), < https://www.lexology.com/library/detail.aspx?g=1e62b35a-98c0-4d5f-8f1c-fafee48c65e5>, accessed: 10th December 2018

[viii] ibid

[ix] Tier 1 (Investor) visa, < https://www.gov.uk/tier-1-investor>, accessed: 10th December 2017

[x] Independent Financial Solutions, ‘Tier 1 Investor visa qualifying criteria’, < http://ifsnet.co.uk/193-2/service-proposition/investment-services/qualifying-investment-criteria/>, accessed: 10th December 2017

[xi] ibid

[xii] Nicolas Rollason, ‘Immigration update – Expansion of the Tier 1 (Exceptional Talent) immigration visa category, (16th November 2017), <https://www.kingsleynapley.co.uk/insights/news/immigration-update-expansion-of-the-tier-1-exceptional-talent-immigration-visa-category>, accessed: 11th September 2017

[xiii] U.K. Visas & Immigration, ‘Tier 1 (Exceptional Talent) of the Points Based System Policy Guidance, page 9, < https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/662121/T1__ET__Guidance_11_2017.pdf>, accessed: 11th September 2017

[xiv] ibid

[xv] Tier 1 (Graduate Entrepreneur) visa, Overview, < https://www.gov.uk/tier-1-graduate-entrepreneur-visa>, accessed: 10th December 2017

[xvi] ibid

[xvii]Sam Dangermond, ‘How Much Is Meghan Markle’s Net Worth?’, (Town&Country, 27th November 2017), <http://www.townandcountrymag.com/society/money-and-power/a13085480/meghan-markle-net-worth/>, accessed: 10th September 2017

[xviii] Carine Elliott, ‘Tier 1 Investor Visa quickest route to settlement in the U.K.’, (17th September 2015, <https://www.lexology.com/library/detail.aspx?g=e85f0e2c-2fcc-4517-ac11-7f39e4a998f3>, accessed: 10th December 2017

[xix] Alison Millington, ‘The incredible life of actress, entrepreneur, and women’s rights activitst Meghan Markle’, (25th September 2017), < http://uk.businessinsider.com/life-of-prince-harry-girlfriend-meghan-markle-2017-5>, accessed: 12th September 2017

[xx] ICL Legal, Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker’ (6th June 2017), < http://sponsor-license.icslegal.com/guide-on-how-to-apply-for-a-tier-2-or-5-sponsor-licence-and-how-to-sponsor-a-migrant-worker/> , accessed: 10th September 2017

[xxi] ‘Tier 2 (Intra-Company Transfer) visa, < https://www.gov.uk/tier-2-intracompany-transfer-worker-visa>, accessed: 10th December 2017

[xxii] ‘Tier 2 (Minister of Religion) visa’, < https://www.gov.uk/tier-2-minister-of-religion-visa>, accessed: 10th December 2017

[xxiii] ‘Tier 2 (Sportsperson) visa, < https://www.gov.uk/tier-2-sportsperson-worker-visa>, accessed: 10th December 2017

[xxiv] ‘How much does the Royal family cost’, <http://home.bt.com/lifestyle/money/mortgages-bills/how-much-does-the-royal-family-cost-11363982445194>, accessed: 10th December 2017

[xxv] ‘Meghan Markle and the Immigration Rules on Marriage’, <https://www.freemovement.org.uk/meghan-markle-visa-immigration-rules/>, accessed: 10th December 2017

[xxvi] Hannah Furness, ‘Hi, I’m Meghan” Ms. Markle introduces herself on first royal outing with Prince Harry’, (The Telegraph, 1st December 2017), < http://www.telegraph.co.uk/news/2017/12/01/prince-harry-meghan-markle-make-first-official-visit-nottingham/>, accessed: 10th December 2017

[xxvii] ibid

[xxviii] Laura, Hammond, ‘Relive affectionate Prince Harry and Meghan Markle’s first official engagement together in Nottingham, (Nottingham Post, 2nd December 2017), <http://www.nottinghampost.com/news/harry-meghan-markle-nottingham-visit-859168>, accessed: 10th December 2017

[xxix] ‘U.K. Fiance Visa’, <http://www.visalogic.net/uk/uk-fiance-visa/4/25, accessed>: 10th December 2017

[xxx] ibid

[xxxi] ‘U.K. Spouse Visas’, <http://www.visalogic.net/uk/uk-spouse-visa/4/103>, accessed: 10th December 2017

[xxxii] ‘Spouse v Fiancee – which visa type to choose?’, < http://www.1st4immigration.com/spouse-v-fiancee.php>, accessed: 10th December 2017

[xxxiii] ibid

[xxxiv] ibid

[xxxv] ‘Fiance visa vs. Spouse visa’, <http://www.british-filipino.com/index.php?threads/fiance-visa-vs-spouse-visa.10349/>, accessed: 10th December 2017

Tier 2 Visas

Tier 2 Visas

The Tier 2 visa category is applicable for employers who wish to sponsor a skilled migrant worker. The Tier 2 category is sub-divided into four subcategoriess, in which the relevant categories are the ‘Tier 2 (General)’, and ‘Tier 2 (Intra-Company Transfer)’. The Tier 2 (Intra-Company Transfer) is further sub-divided into three categories: ‘Long Term Staff’, ‘Graduate Trainee’ and ‘Skills Transfer’.

 

The Tier 2 (Intra-Company Transfer) category are for migrant workers who have been offered a role in a UK branch of the organisation, and the Tier 2 (General) category are for skilled migrant workers who have a job offer by a UK employer.

 

When sponsoring a migrant worker for a role in the UK under the Tier 2 (General) category, the employer must show that they have ‘tested’ the UK labour market in finding a suitable worker who is already settled and present in the UK, otherwise known as the Resident Labour Market Test.

 

The Resident Labour Market Test (RLMT)

 

The RLMT has been introduced by the UK Visas and Immigration to protect the settled workforce which obligates an employer to advertise a job vacancy to settled workers before extending the job opening to migrant workers.

 

A settled worker is any individual worker who has the skills and experience the employer is seeking.

 

Exemptions to the RLMT

 

There are a number of exemptions to having to carry out a RLMT[i]:

 

  • The migrant worker is already working for the employer and an extension of their Tier 2 (General) visa is required;
  • The advertised job is in the shortage occupations list;
  • The employer is sponsoring a migrant worker who currently has leave in the UK or is searching for post-study work;
  • The total salary package for the job is £159,600 or above;
  • The employer is a Higher Education Institution and was previously sponsoring a migrant worker who is returning to resume their post after a period of academic leave;
  • The job is in a supernumerary research position and the migrant worker has been issued a scientific research award;
  • The migrant worker will be sponsored as a doctor or dentist;

 

How the RLMT is carried out

 

All employers are required to place at least 2 job adverts for a period of 28 calendar days, either continuously or in 2 separate stages in which both stages must not be fewer than 7 calendar days. “The adverts make sure that there are no suitable workers already living permanent in the UK”[ii]. The advert must be a ‘genuine advert’.

 

If an employer has been unable to find a settled worker then the advertisement for migrant workers must be advertised within the 6 months before the employer has signed the certificate of sponsorship to a migrant. The certificate of sponsorship is discussed below.

 

If an employer finds that they have more than one candidate with all the necessary skills and experience they had advertised for, where one is a settled worker and the other a migrant worker, the employer must appoint the settled worker even if the migrant worker is more skilled and experienced.[iii]

 

Certificate of sponsorship

 

When an employer assigns a Tier 2 (General) certificate of sponsorship they are confirming that they have tested the UK market (carried out the RLMT) and have been unable to find a suitable settled worker to fill the job opening or an exemption is applicable.

 

The certificate of sponsorship must be assigned within 6 months of the date when the job opening was first advertised. Where the job opening has been advertised in 2 stages, the certificate of sponsorship must be assigned within 6 months of the date of the first of the 2 advertisements appeared.

 

The employer is required to provide full details of the RLMT carried out when assigning a certificate of sponsorship. If the employer has not used the RLMT they must explain why and which exemption from the RLMT applies.

 

The effect of the RLMT on Tier 2 migration

 

Whilst the RLMT may be an adequate tool for employers to source suitable settled workers, whether the RLMT fulfils this is a question to consider.

 

Based on statistics, it may show that the RLMT does not necessarily result to employers finding a suitable settled worker for their job positions. In 2016 there were 56,058 Tier 2 Skilled work sponsored visa applications and 56,012 applications in 2015[iv]. “In the year ending September 2016, the Office for National Statistics estimated there were 67,000 non-EU long term migrant workers in the UK, and this was similar to the previous 12 months”[v]. An increase each year is shown with the number of migrant workers entering the UK with a Tier 2 visa.

 

However, on the opposite side a survey conducted on 1,000 businesses in the UK established that 93% were at risk of having their sponsor licence revoked and only 7% “advertise vacancies correctly[vi]. The RLMT explicitly states that all job openings must be advertised in accordance with the guidelines stipulated by the UK Visas and Immigration. By advertising incorrectly it may show that the employers were not exposing themselves enough to find a suitable settled worker in the UK.

 

Reforms of the Tier 2 visa

 

“On 24 March the Government issued its preliminary response to the comprehensive review of Tier 2 (General) and Tier 2 (Intra-Company Transfer) routes carried out by the Migration Advisory Committee”[vii].

 

The reforms were implemented to “protect job opportunities for UK residents and reduce the UK businesses’ reliance on foreign workers”[viii] and to maintain the cap at 20,700 to ensure that Tier 2 visas are only granted to migrant workers who have the skills that are needed for the UK economy[ix]. More specifically, the Tier 2 (General) visa category was amended to reduce the number of migrant workers entering the UK, whilst the Tier 2 (Intra-Company Transfer) visa category was amended to “make it more difficult for multinational companies to transfer foreign employees into the UK”[x].

 

The main changes are as follows:

 

  • For both the Tier 2 (General) and Tier 2 (Intra-Company Transfer) visa category a significant change is the introduction of an Immigration Skills Charge which will be levied on employers who employ migrant workers in skilled areas. The charge will be £1,000 per migrant worker per year, and a reduced rate of £364 per migrant worker for smaller companies and charities. The Migration Advisory Committee strongly supported the introduction of an Immigration Skills Charge to incentivise employers to reduce their reliance on migrant workers and to invest in training and upskilling UK workers[xi]. Exemptions to the Immigration Skills Charge are PhD-level jobs and international students who are switching from the student visa to the Tier 2 visa category. This is a “key protection to help retain the talented workers and students who are vital in helping the British economy grow”[xii].

 

  • The minimum salary threshold for high earners has increased from £155,300 to £159,600. Employers who recruit individuals with a minimum salary of £159,600 will be exempt from carrying out the RLMT.

 

  • The minimum salary threshold for sponsored workers over the age of 26 has been increased to £30,000 per year from £25,000. The minimum salary threshold for new entrants has remained at £20,800. By increasing salaries this will place more pressure on employers as they will be unable to recruit for lower paid positions from the workforce within the UK[xiii]. Start-up and growth businesses will especially be affected[xiv].

 

  • Advertising methods will be extended for graduate recruitment in satisfying the RLMT.

 

  • Extra weighting will be given within the annual limit to businesses sponsoring migrant graduates. Graduate will be permitted to switch roles in a company if they secure a permanent position at the end of the training programme. This will give employers flexibility in employing and retaining graduates, and increasing the confidence to invest in their training knowing that they should be able to retain those individuals more easily in the future[xv]. Therefore, potentially reducing migration.

 

  • Nurses will remain on the Shortage Occupation List, but employers will still need to carry out a RLMT before recruiting a non-EEA nurse. (The Shortage Occupation list details the professions that are in high demand in the UK). This may “seem inconsistent to require employers to satisfy the RLMT for a role deemed to be shortage, but the Government is keen to ensure no suitable settled worker is displaced before sponsorship occurs”[xvi].

 

  • Migrant students under a Tier 4 visa will be permitted to switch to a Tier 2 visa without the need for an employer to carry out a RLMT.

 

  • Tier 2 (Intra-Company Transfer) migrant workers were previously exempt from the Immigration Health Surcharge (a mandatory contribution to the NHS) but now employers will be required to pay a surcharge of £200 per migrant worker per year.

 

  • The current Tier 2 (Intra-Company Transfer) provisions have been simplified by requiring all intra-company transferees to qualify under a single visa category with a minimum salary threshold of £41,500. The Graduate Trainee category is exempt from this change but instead a reduction in the minimum salary threshold has been enforced from £24,800 to £23,000. This change “will reduce an employer’s option to transfer staff to the UK for specialist but lower paid positions”[xvii].

 

  • The minimum salary threshold for Tier 2 (Intra-Company Transfer) migrant workers wishing to extend their visa in this category for up to 9 years has been reduced from £155,300 to £120,000. This enables the employer to retain their employee for a longer period.

 

Impact of the reforms

 

As the reforms have been recently enforced it is too early to statistically determine what the impact has been. However, many sectors have heavily criticised the reforms declaring that UK businesses and the economy will be negatively impacted.

 

Employers are likely to find the changes inhibiting their ability to bring non-EU nationals into the UK and increase their recruitment costs[xviii]. Before the reforms were put into place employers were finding it expensive to employ non-EU nationals as they were already required to pay for certificates of sponsorship, entry clearance / leave to remain fees, immigration health surcharge payment for the Tier 2 (General) category and relocation costs[xix]. Now with the Immigration Skills Charge and the expansion of the Immigration Health Surcharge, this will substantially increase an employer’s costs.

 

The greatest criticism has been towards the Immigration Skills Charge. “As many employers are already under significant financial pressure to compete globally, an imposition of the Immigration Skills Charge will further build the UK’s reputation as a business-unfriendly country for overseas nationals”[xx]. “From an immigration perspective, the imposition of the Immigration Skills Charge will only increase the costs for employers at the expense of settled workers, with no tangible long-term benefits elsewhere”[xxi].

 

Further, “many employers may decide to leave the position unfilled, instead recruit from the EU”[xxii] or risk having to use settled workers who are not skilled[xxiii]. “A potentially disastrous consequence is that if employers are unable to fill key posts for their businesses, the UK’s economy may be put at a competitive disadvantage”[xxiv].

 

TechUK, which represents 850 UK tech firms, expressed its displeasure in the changes and stated that they will inevitably affect small and medium businesses and international businesses investing in the UK[xxv]. The CEO of TechUK, Julian David, stated that the extra restrictions enforced on the Tier 2 visa, specifically the Immigration Skills Charge, increased salary thresholds and limitations on intra-company transfers, will not make it easy for companies to access the talent they need[xxvi]. Additionally, organisations such as Coadec, a non-profit trade body for start up companies, expressed the view that restricting access to skilled non-EU migrants will potentially limit the available talent pool and stifle the overall growth of the UK[xxvii], and employing non-EU migrants can help “plug the skills gap in rapidly growing sectors and often leading to an increase in UK domestic skills over the long-term”[xxviii].

 

Concerns from the medical profession have also appeared. The chair of the RCGP has urged the Home Office to add GPs to the Shortage Occupation List, making it easier for migrant doctors to work in general practice in the UK.[xxix] Professor Stokes-Lampard has stated that with a number of GPs set to retire in the next few years and the fact that it takes 10 years to train a GP from the UK, a much simpler and straightforward process for GPs entering the UK is required[xxx].

 

Nevertheless, some of the reforms may have a positive impact. UK businesses will now be more aware of being in compliant with the RLMT and not risk having their sponsor licence revoked, especially as employers will now be investing more significantly in recruiting migrant workers. Additionally, with the extended platforms which can now be permitted for employers to advertise their vacancies on for graduate hires, this may help employers more to source the type of graduates they need and in turn force the employers to invest in training to avoid the substantial costs of recruiting migrant workers.

 

[i] Home Office, ‘Tiers 2 and 5: Guidance for Sponsors’, Version 05/17, pages 118-121, <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616206/Tier_25_guidance_05-2017.pdf>

[ii] “UV visa sponsorship for employers”, <https://www.gov.uk/uk-visa-sponsorship-employers/job-suitability>

[iii] Home Office, ‘Tiers 2 and 5: Guidance for Sponsors’, Version 05/17, page 118, <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/616206/Tier_25_guidance_05-2017.pdf>

[iv] National Statistics Work, (23 February 2017) < https://www.gov.uk/government/publications/immigration-statistics-october-to-december-2016/work>

[v] ibid

[vi] Jo Faragher, , ‘Employers ‘sleepwalking’ on right-to-work compliance for overseas workers’,  Personnel Today, (28 September 2017), < https://www.personneltoday.com/hr/employers-sleepwalking-right-work-compliance-overseas-workers/>

[vii] Tilly Oyetti, ‘Major Tier 2 reform coming in Autumn 2016 and April 2017’, Charles Russell Speechlys, Lexology, (12th April 2016), < https://www.lexology.com/library/detail.aspx?g=7fdf5ea7-11e8-47ca-91d0-b0ff5ac5bf56>

[viii] Home Office, ‘Visa changes to reduce reliance on foreign workers’, (24th March 2016), < https://www.gov.uk/government/news/visa-changes-to-reduce-reliance-on-foreign-workers>

[ix] House of Commons, ‘Immigration: skills shortages’, < https://publications.parliament.uk/pa/cm201516/cmselect/cmhaff/429/42903.htm>

[x] Jemima Johnstone, ‘Changes to UK Tier 2 (Intra-Company Transfer) Visa, DavidsonMorris Solicitors, Lexology, (14th August 2016), < https://www.lexology.com/library/detail.aspx?g=48c30027-11be-4200-b3a2-5062a969daed>  2

[xi] James Brokenshire, ‘Tier 2 (Skilled Workers): Written Statement – HCWS660’, (24th March 2016), < https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2016-03-24/HCWS660/>

[xii] Department for Business, Innovation & Skills and Jo Johnson MP, ‘Government’s new Immigration Skills Charge to incentivize training of British workers’, (24th March 2016), < https://www.gov.uk/government/news/governments-new-immigration-skills-charge-to-incentivise-training-of-british-workers>

[xiii] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xiv] ibid

[xv] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xvi] Yuichi Sekine and Lucy Garrett, ‘Home Office Announce Changes to Tier 2 Immigration Route following MAC Review’, The In-House Lawyer, (5th May 2016), < http://www.inhouselawyer.co.uk/legal-briefing/home-office-announce-changes-to-tier-2-immigration-route-following-mac-review/>

[xvii] Charlie Pring and Vikki Wiberg, ‘The outlook for UK immigration – the next 12 months, Taylor Wessing, Lexology, (12th May 2016), < https://www.lexology.com/library/detail.aspx?g=dff1a55d-144a-49ba-baaf-ab67bf291b37>

[xviii] Yassar Lodhi and Emma Morgan, ‘Key changes to Tier 2 from 6 April 2017’, DAC Beachcroft, Lexology, (3rd April 2017), < https://www.lexology.com/library/detail.aspx?g=6927b9ed-61bf-4027-b272-ebbeed29d5a2>

[xix] Tilly Oyetti, ‘Major Tier 2 reform coming in Autumn 2016 and April 2017’, Charles Russell Speechlys, Lexology, (12th April 2016), < https://www.lexology.com/library/detail.aspx?g=7fdf5ea7-11e8-47ca-91d0-b0ff5ac5bf56>

[xx] Yuichi Sekine and Lucy Garrett, ‘Home Office Announce Changes to Tier 2 Immigration Route following MAC Review’, The In-House Lawyer, (5th May 2016), < http://www.inhouselawyer.co.uk/legal-briefing/home-office-announce-changes-to-tier-2-immigration-route-following-mac-review/>

[xxi] ibid

[xxii] ibid

[xxiii] ibid

[xxiv] ibid

[xxv] Caroline Preece, TechUK brands Tier 2 immigration visa reforms ‘disappointing’, ITPRO, (24th March 2016), <http://www.itpro.co.uk/strategy/26267/techuk-brands-tier-2-immigration-visa-reforms-disappointing>

[xxvi] ibid

[xxvii] ibid

[xxviii] ibid

[xxix] Carolyn Wickware, ‘RCGP chair urges Home Office to add GPs to shortage occupation list’, Pulse, (13th October 2017), < http://www.pulsetoday.co.uk/home/finance-and-practice-life-news/rcgp-chair-urges-home-office-to-add-gps-to-shortage-occupation-list/20035451.article>

[xxx] ibid

American Immigration Issues

American Immigration Issues

Immigration in America is changing quickly under new president Donald Trump. Though overall immigration policies have yet to change, his proposals are having considerable effect.

What’s changing for American Immigration?

Fast processing for H-1B visa’s allowing highly skilled workers to quickly take up important roles in the US economy for a period of one to three years was suspended for a time. Standard processing can take six months and the suspension caused concern for medical institutions and technology companies across America who rely on H-1B to fill skills gaps.

The new president has also signed an executive order to review the H-1B visa program, potentially replacing it with a more merit based system with the aim of favouring American workers and reducing immigration.  More recently Donald Trump is supporting the RAISE act which although stalling in congress, if passed would bias towards financially stable English speakers, and reduce American immigration by 50 per cent.

Though Trump’s repeated attempts at travel bans for citizens of certain countries was not targeted at those who had already gained visas, the controversy and treatment of these citizens is certainly beginning to deter migrants and skilled workers.

The proposed wall on the Mexican border, and clampdowns on illegal immigrants is affecting individuals and families who have lived in the US for years and now facing possible deportation.

This September, Attorney General Jeff Sessions announced the administration is rescinding the Deferred Action for Childhood Arrivals (DACA) program, passing it over to congress to find a legislative alternative. The announcement and the potential effects on the 800,000 young individuals under DACA is controversial and far reaching.

What is DACA?

Barack Obama created DACA in 2012 to allow those brought to the UK illegally as children the temporary right to live, study and work in America. The program, Deferred Action for Childhood Arrivals (DACA) covrtd a group now known as “dreamers”, most of whom know America as their home country and have little or no knowledge of their birth countries culture or language. “Dreamers” see themselves as Americans. The DACA program allows those who have completed school or military service, and have passed criminal and security vetting, a two-year deferral on any threat of deportation. After which they have opportunity to renew. During the two-year period they are granted rights to a driving license, college access, and a work permit.

What will ending DACA mean?

DACA protects 800,000 between the ages of 15 to 36. Trump has indicated that current “dreamers” if generally law abiding, will not be subject to any action. However new applications will not be affected. Trump touts his plan to make the deportation of the estimated 11 million undocumented migrants in the USA a priority for his government.  Though current DACA protectees should be safe right now, they are rightly terrified for their future. As are many other young people who will miss this opportunity yet know only America as their home country.

For most “dreamers” their status under DACA will lapse by March 2020 and it’s unclear what will happen to them then. For the first DACA citizens, their two-year deferral expires in 2018, the rest in 2019 and 2020. Immigrants with DACA permits expiring before March 5, 2018 can apply for a renewal.

Currently 15 states have joined together in a lawsuit protesting the decision to rescind DACA and California has announced its own lawsuit against the process.

More resist Trump’s policies – who are the sanctuary cities?

Sanctuary cities, places of protection and respite, go back thousands of years. For the US they have gained in number and reputation over the past 10 years, accelerating with the newest presidential administration and its policies.  New York was the first to speak out with a letter the week of Donald Trump’s inauguration defending the right of every student in New York City to school. It explained school staff do not check if children’s parents had visas and would not permit Immigration and Customs Enforcement (ICE) agents to enter schools without proper legal authority. New York has an estimated 1.2 million undocumented immigrants.

Sanctuary cities are considered to have adopted laws, policies or practices which may impede some immigration enforcement efforts. The Sanctuary counties and cities in the US currently include Oregon, with 31 counties, Washington with 18 counties, California with 15 counties. Massachusetts has 6 cities, California 3 and there are many more.  A list can be found here: http://www.10news.com/news/list-of-sanctuary-cities-2017

How have the recent hurricanes affected undocumented immigrants?

In Texas and Florida there are many undocumented immigrants affected by hurricanes Harvey and Irma. They are deeply concerned about being deported under the government’s new and proposed policies. Despite some of them being entitled to aid from the federal government, most are too afraid to draw attention to themselves by asking for help, and are instead turning to churches and private charities. Federal Emergency Management Agency rules allow people in the country illegally to apply for disaster assistance on behalf of their children who are under 18 and have legal status in the USA. Undocumented immigrants are concerned applying for FEMA aid will expose their information and lead immigration authorities to them.

Trends in US immigration – a quick look at some interesting statistics.

America is changing. Immigrants, even if not yet affected by new policy are worried. They are concerned about changing attitudes, both from the government and American citizens. Some can’t cope with living in fear. There are increasing numbers of Mexican nationals voluntarily choosing to return to Mexico, even though their children were born in the US.

It’s easy to forget that America is a nation of migrants, in 1890 14.8% of the population were non- US born. Today that figure is still only 13.4% of the total population.

In the period 2009 to 2014 more Mexican nationals returned to Mexico than entered America. 1 million returned, and 870,000 went to the US. Recent reports are that more and more Mexicans are leaving America each week.

Other groups of immigrants are either leaving or turning away from the USA. The changes in H-1B and some student visas are discouraging students and highly skilled migrants from India, China and other countries. Last year the growing rate of foreign student admissions to the US grew at its slowest rate since 2009. Canada however, is actively seeking to attract international students and highly skilled workers to fill a skills gap in its economy. The number of international students in Canada has grown 92% since 2008.

A recent Ivy League study predicts 4.6million jobs will be lost by Donald Trump’s policies and the US economy will be 2% smaller by 2040. The article from CNN makes for interesting reading http://money.cnn.com/2017/08/10/news/economy/trump-immigration-jobs/index.html