Andrew Tingley

What should I consider if my client wishes to apply under Tier 2 but the sponsor licence is yet to be granted?Can my client apply for leave to remain under Tier 2 even though a new sponsor’s licence has not yet been granted?If an application is lodged under the Immigration Rules pertaining to Tier 2 and a decision is made without your client being in possession of a Certificate of Sponsorship (CoS), you will need to advise your client that it will fall for refusal.If the client’s leave is due to expire shortly and they have been offered a job which will qualify under Tier 2 by an employer that needs to obtain a sponsor licence, it is important to make a request to the Sponsor Licensing Unit for the licence application to be expedited. You should ask for the application to be decided by, or in advance of, the date that the individual’s leave is due to expire.Can I ask the Home Office to hold off on making a decision on the leave to remain application until the licence is granted and the Certificate of Sponsorship is issued?When the Sponsor Licensing Unit was experiencing delays in processing applications, a provision was put in place to this effect. However, this provision has now been withdrawn. It may be possible to persuade individual caseworkers to exercise discretion and delay any decision, but this course of action should not be relied upon.My client’s leave to remain is about to expire and they must remain in the UK in order to continue their current employment. Are there any other options?You should review your client’s circumstances and goals without making any assumptions about what options may be applicable and acceptable to them. It is possible that there may be options applicable under UK immigration law or European law that would enable them to continue working in the UK, eg on the basis of a relationship they have with a spouse/partner, child or other family member in the UK, if they have access to investment funds, if they have ever lived lawfully in the UK for a continuous period of at least 10 years, or if they would like to study and work part-time.Depending on the extent of the private life your client has built up in the UK, they may also consider making a valid application on private life grounds (either as provided for in the Immigration Rules or outside the Immigration Rules on art 8 grounds). Similarly, they may have a family relationship/s in the UK that could found an application under Appendix FM, para EX.1 or otherwise outside the Immigration Rules on art 8 grounds. An application on any of these bases would need to be lodged on the current specified form and accompanied by the specified fee and relevant supporting documents prior to the expiry of their current leave.Making a valid application for further leave to remain before your client’s current leave expires would enable them to remain in the UK lawfully and continue working while the application remains pending.If your client’s employer is subsequently granted a sponsor licence and issues your client with a Certificate of Sponsorship, as long as no decision has been made on the initial application, that application can be varied to a Tier 2 application.The Tier 2 application must be made on the current specified form, accompanied by the specified fee and all specified supporting documents that have not previously been submitted to the Home Office. Your client should, however, be advised of the risks of this approach, including that if the ultimate goal is to be granted Tier 2 leave, this may be undermined if the initial application is decided before a variation of the application can be made.Would it be possible for my client to return to their home country and apply for entry clearance under Tier 2?This may be a possibility., however, you will need to be aware of issues such as:•how long is the entry clearance process likely to take and is this acceptable to the client?•will a 12-month cooling-off period apply?•will your client’s employer need to undertake a Resident Labour Market Test?•will your client’s employer need to apply for a restricted Certificate of Sponsorship?•are there character issues (adverse immigration history, criminal convictions) that may lead to your client’s application being refused? (note that different general grounds for refusal apply to applications for entry clearance in comparison to those for applications for leave to remain)•will the time spent abroad break the continuity of residency in any future settlement application?It is important to advise your client of the risks of leaving the UK taking their individual circumstances into account.

What will be the main effects of the end of the accession regime for Bulgarians and Romanians coming to the UK or already here?Bulgaria and Romania acceded to the EU on 1 January 2007, and by extension the European Economic Area (EEA). From that date, nationals of these two countries (known as ‘A2’ nationals) have not required leave to enter or remain in the UK under the Immigration Act 1971.Instead, as with all EEA nationals, A2 nationals:•can travel freely to the UK•will have a right of residence for an initial 3 months•will have an extended right of residence beyond that time if they are exercising treaty rights as a student, a self-employed person or if they are self sufficientSee Practice Note: EEA nationals: rights of entry and residence [Archived].However, the Treaty of Accession allowed EU member states to restrict access to their labour markets for A2 nationals for a period of up to 7 years (the accession period). During the accession period, the UK has required A2 nationals who wish to work in the UK on an employed basis, unless they fall into a number of exemptions, to apply for permission to work, known as worker authorisation. For many A2 nationals, this has required their prospective UK employer to apply for a work permit under a version of the pre-Points Based System work permit scheme. On obtaining a work permit, the A2 national must then apply for an Accession Worker Card (AWC). The worker authorisation regime was implemented via the Accession (Immigration and Worker Authorisation) Regulations 2006 (the Authorisation Regs, SI 2006/3317). See Practice Note: Bulgarian and Romanian nationals: work permission and exemptions [Archived].An A2 national will become exempt from authorisation following their completion of 12 months of uninterrupted authorised work. ‘Uninterrupted’ is defined in the Authorisation Regs as 'a period of work during which the total time spent not legally working does not exceed 30 days'.The Authorisation Regs made it a criminal offence during the accession period for any employer to employ an A2 national who is required to hold an AWC and does not hold one, or who is undertaking work other than that specified on the AWC. The maximum fine on conviction is £5,000 per worker. It is also an offence for an A2 national to work without an AWC or in employment other than that specified on the AWC (subject to a term of imprisonment of up to 3 months or discharge of liability by payment of a fixed penalty of £1,000).The Authorisation Regs cease to have an effect on 1 January 2014 and from that date Bulgarians and Romanians will have full access to the UK labour market.Will my employer client need to carry out a Resident Labour Market Test or apply to the Home Office for permission to employ an A2 national after 1 January 2014?No. Your client will be able to employ the A2 national if they are satisfied that they are a Bulgarian or Romanian citizen.What documents should my employer client request as evidence of nationality?Your client will need to be satisfied prior to the commencement of employment that the individual is a Bulgarian or Romanian national by requesting to see their current passport or national identity card and undertaking the relevant document checks in accordance with the Prevention of Illegal Working Guidance in force at the time.My employer client currently employs students who are A2 nationals. How does this affect them?The requirement to apply for a registration certificate prior to taking up employment will no longer apply. Also, students will no longer be restricted in the hours they are able to work, either in term time or holidays or subsequent to the course ending. See Practice Note: EEA nationals: qualified persons—students and self-sufficient persons [Archived].Will time spent in unauthorised employment during the accession period count towards permanent residence?No. For A2 nationals who require authorisation, only time spent in authorised employment will count as time spent as a worker for the purposes of acquitting permanent residence. Time spent jobseeking will also not count. Once an A2 has obtained an exemption from work authorisation following 12 months of uninterrupted employment, the restrictions of the Authorisation Regs will fall away and the usual definition of worker in EU free movement law will apply.

Will an application for entry clearance or leave to remain be refused if my client has received a caution?What is a caution?There are two main types of caution which your client may have accepted as an adult in the UK:•simple—where an individual admits an offence•conditional—where an individual admits an offence and agrees to certain restrictions and/or rules as part of the cautionAs a youth (aged 10–17), they may have accepted the following:•youth caution•youth conditional caution•simple cautionA youth may also previously have accepted a reprimand or warning under the Final Warning Scheme. These are not cautions, however, they can be taken into account by the Home Office when considering whether to refuse an application.A caution is not a criminal conviction. However, when a person accepts a caution, they have admitted guilt to an offence. It becomes part of their criminal record and is retained for future use. This record will be available to the Home Office when your client makes an application for entry clearance or leave to remain and you should always seek full instructions from the client on any previous caution they may have received.Does my client have to disclose a caution in their application?From 19 December 2008 cautions, conditional cautions, reprimands and warnings (and from 8 April 2013 youth cautions and youth conditional cautions) all became subject to the provisions of the Rehabilitation of Offenders Act 1974 (ROA 1974). This act provides that a person is not required to disclose information relating to spent convictions or out-of-court disposals (including cautions) in a range of circumstances.A simple caution becomes spent immediately and a conditional caution becomes spent after a maximum of 3 months from the date it was given. Your client may therefore be under the impression that a caution does not have to be disclosed if it is spent.However, since 1 October 2012, the provisions of the ROA 1974 that exempt a person from disclosing information relating to a spent matter do not apply if the information is requested in relation to an application for entry clearance or leave to remain (and other defined immigration/nationality matters).Entry clearance applicants are not currently directly asked in entry clearance forms to disclose information about cautions, so a failure to do so will not lead to the application being refused under the Immigration Rules, Part 9, para 320(7A) (or if the client is applying under Appendix FM, para S-EC.2.2) on the ground that a material fact has not been disclosed (with one exception outlined below). The current Home Office Entry Clearance Guidance states the following:'Please note that a caution is not a conviction. It is an out of court disposal which is recorded on an individual's criminal record. Since it is not a conviction the applicant should not be refused under paragraph 320(7A) if they fail to declare it on the application form.'The above guidance should not be relied upon if your client has received a conditional caution and one of the conditions imposed was for them to leave the UK. This is because entry clearance applicants are currently asked if they have ever been required to leave the UK and a failure to disclose the conditional caution in response to that question may amount to a failure to disclose a material fact.In nearly all immigration categories, an application for further leave to remain will fall for refusal on either a mandatory or discretionary basis if a material fact is not disclosed in the application. In some categories an application may also be refused on a discretionary basis if a material fact was not disclosed in a previous application. For further information on mandatory and discretionary grounds for refusal, see Practice Note: Mandatory grounds for refusal and re-entry bans.Some in-country application forms (eg forms for indefinite leave to remain) contain a catch-all question asking an applicant to disclose any activities which might indicate they may be considered not to be a person of good character. Where this type of question is asked, it is safest to disclose a previous caution in response.Although an application cannot be refused if the applicant has not been told what information is material to the application, you should check carefully whether the relevant application form asks for this information. The safest approach is to provide details of a caution, reprimand or warning in any application for entry clearance or leave to remain.My client has revealed a caution—will their application be refused based on this caution?If your client is applying for entry clearance, the general position is that an application could be refused on a discretionary basis if they accepted the caution within 12 months of the date their application is made.However, if your client accepted a conditional caution as an adult and one of the conditions required them to depart the UK, the client will be subject to a refusal of entry clearance under para 320(7B) for a period of 5 years from the date of departure or removal from the UK.You should also be aware that they may have accepted a condition requiring them not to return to the UK for a period longer than 5 years. They may be prosecuted for the original offence if they return to the UK before that period has passed.Furthermore, any entry clearance or leave to remain application made by your client at any time in the future may be refused on a discretionary basis if the Home Office considers that:•your client’s offending has caused serious harm•your client is a persistent offender who shows particular disregard for the law, or•your client’s exclusion from the UK is conducive to the public goodIf your client is applying for indefinite leave to remain in any category, their application would be refused on a mandatory basis if they accepted a caution within 24 months of the date the application is made.See Previous conduct for further information on these grounds for refusal.