I HAVE seen people who have lost their hard earned cash unnecessarily by using the wrong procedure in an attempt to regularise their stay in the United Kingdom.
The UK Border Agency is very clear and explicit on this point: make sure you use the right form and pay the correct fee, otherwise your application will be refused.
In this regard, it is pertinent to note that the new Points Based System (PBS) introduced by the UK Border Agency in June 2008 has changed the way applications are now done and processed.
Firstly, the old categories have now been given a facelift and it is important for the prospective applicant to properly identify the corresponding new category. For example, Highly Skilled Migrant Programme (HSMP) is now (Tier 1 General); International Graduates Scheme is now Tier 1 (Post-Study Work); Ministers of Religion is now Sponsored Worker (Tier 2 Ministers of Religion); Work Permits is now Tier 2 (General).
Of importance is to note that Tier 1 came into effect on June 30, 2008, whilst Tier 2 came into effect on November 27, 2008. There is also Tier 4 for students and Tier 5 for temporary workers and those covered by the Youth Mobility Scheme.
My primary focus in this article is to discuss what transitional arrangements are and how applicants can make use of them. For the legal mind, the existence of transitional arrangements is to deal with what happens when a piece of primary legislation is enacted, either extending existing legislation or consolidating a statute.
Under these circumstances, it is often necessary to introduce the provisions of the new law over a period of time. The reasons for doing so may be diverse but primarily this may be because it has an effect on the operation of other legislation or because it is not practical to introduce a range of new measures at the same time.
It is for these reasons that the UK Border Agency introduced transitional arrangements at the time the new Points Based System became operational. For the applicant, therefore, it is always important to firstly find out whether your situation is covered by any transitional arrangements.
Secondly, the applicant has to find out whether the transitional arrangements are still in operation. The for this is that transitional arrangements, just as their title suggests, are temporary and not meant to be a permanent feature of the rules or legislation.
I would like take a few instances to highlight how transitional arrangements have been operating since the inception of the PBS.
Tier 1- General Highly Skilled Migrant Extension for HSMP visa holders
Under this category, if you are unable to qualify for an extension to your highly skilled migrant visa, there are transitional arrangements in place to allow you to move to another Tier, such as Tier 2 for skilled workers.
This will be possible if you have been working in the same position for the last 12 months and have held an HSMP visa for 12 months or you have worked in the same position for 8 months and have held HSMP visa for 12 months or less.
If this be the case, your employer can apply for a work permit for you without the need to show that a British or European Union citizen could not be found to fill the job.
Tier 1 Post-Study Work
Under this category, if you were last given less than two years’ leave under the International Graduates Scheme or Science and Engineering Graduates Scheme, you will be able to apply to the post-study worker category under the transitional arrangements. The transitional arrangements allow you to get a total of up to two years’ leave under a combination of your previous scheme and post-study worker.
Maintenance transitional arrangements under Tier 1 Post- Study Work
This provision may be familiar with most readers because of its notoriety which has caused most applicants to fail on this note. However, it is crucial to note that when the PBS was introduced, the UK Border Agency put in place transitional arrangements that did not require applicants to have had £800 for at least three months before applying.
The cut off point was October 31, 2008, and until then an applicant only had to show that he had the required funds at the time of applying. As most readers would know, following the cut off point, this requirement for £800 has remained a stumbling block in respect of many applications (read more).
Tier 2 (General)
Work Permit Holders
Where you are applying to continue working for same employer in the same job that your previous leave was granted for (an exception exists), under these transitional arrangements, you do not have to score points for your qualifications, prospective earnings, the resident labour market test, English language skills or maintenance.
Tier 4 (General) Student Migrant
Tier 4 applicants need to have enough money to cover their course fees and maintenance. They are expected to show that they have held this money for a 28-day period ending no more than one month before their application.
However, because of the transitional arrangements now in place, would be students who apply under this category from inside the UK before February 2010 will only need to show that they have the money needed on the day they apply.
But since October 1, 2009, those who apply from outside the UK must now comply with the 28-day period requirement. It may be relevant here to highlight that this is another typical example where in this case, students in the UK can make use of the existing transitional arrangements in order to regularise their stay in the United Kingdom and how those outside can best prepare for their applications.
I would advise would-be applicants to always read the accompanying Guidance to each Form issued by the UK Border Agency and to seek appropriate Legal advice if in doubt as this will undoubtedly minimise the potential risks attendant to doing it alone. As they say; if you think information is expensive, try ignorance!
George Tizirai-Chapwanya is a Solicitor with Bake & Co Solicitors. He can be contacted on gtchapwanya@bakesolicitors.co.uk or visit Bake & Co Solicitors’ website at www.bakesolicitors.co.uk. Tel: +44121 616 5025 or +447815958475
Disclaimer: This article only provides general information on immigration law. It is not intended to replace the advice or services of a Solicitor. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. The writer will not accept any liability for any claims or inconvenience as a result of use of this information
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