consultation document<\/a> confirms that the below
\nmandatory minimum requirements will be applied for all applicants
\nunder the earned settlement model:<\/p>\n
\n
\n
\nPillar
\nRequirements
\n
\n
\n
\nSuitability
\nMeeting suitability requirements, as set out in Part
\nSuitability of the Immigration Rules \u2013 for example, not
\nhaving a criminal conviction.
\n
\n
\n
\nNo current litigation, NHS, tax or other government debt.
\n
\n
\n
\nIntegration
\nMeeting English language requirements at B2 level under the
\nCommon European Framework of Reference for Languages.
\n
\n
\n
\nPassing the Life in the UK test.
\n
\n
\n
\nContribution
\nDemonstrating annual earnings above \u00a312,570 for a minimum
\nof 3 to 5 years (subject to consultation), in line with the current
\nthresholds for paying income tax and National Insurance
\nContributions (NICs), or an alternative amount of income.
\n
\n
<\/p>\n
The consultation document states that the mandatory minimum
\nrequirements are not within the scope of the consultation, except
\nfor the length of time a person must demonstrate an earned income.
\nHowever, the contribution criterion does include the possibility of
\nhaving an ‘alternative amount of income’.<\/p>\n
We consider each of the requirements further below.<\/p>\n
In more detail: suitability requirements<\/p>\n
Criminality and other suitability criteria that may
\nresult in refusal<\/p>\n
Under the proposed suitability criteria, any person with a
\ncriminal record will not be able to settle in the UK. This
\nrequirement is a significant jump from the current rules, where the
\nseriousness of the criminality is assessed when considering
\neligibility for settlement. Under the proposals, youth offences and
\nstrict liability offences (e.g. speeding or driving without
\ninsurance) would result in a permanent ban from settlement.<\/p>\n
If there are no transitional arrangements (which is the
\nGovernment’s preferred position), individuals who were accepted
\nonto a settlement route despite having an historic criminal
\nconviction may find they are permanently barred from settling.<\/p>\n
It may be possible for discretion to be exercised outside the
\nRules in exceptional cases, however the exercise of such discretion
\nis rare.<\/p>\n
Outstanding debt<\/p>\n
Under the proposals, applicants for settlement must not have any
\ncurrent litigation, NHS, tax or other government debt. The current
\nrules only provide for refusal if there is an outstanding debt to
\nthe NHS, or where litigation costs have been awarded to the Home
\nOffice and remain unpaid.<\/p>\n
Clarification is awaited on the following points:<\/p>\n
\nWhether the criteria on NHS and litigation debt will remain as
\ncurrently defined;
\n
\nWhether a tax debt will only be relevant if a tax liability has
\nnot been paid by the relevant deadline; and
\n
\nWhat the definition of ‘government debt’ may be \u2013
\npotentially it could include public funds that are not prohibited,
\nbut that have been received by the applicant in error, e.g. where
\neligibility for tax free childcare or free childcare for working
\nparents has been incorrectly assessed.
<\/p>\n
In more detail: integration requirements<\/p>\n
English language requirement<\/p>\n
Under the proposals, applicants will be required to demonstrate
\nEnglish language skills at an upper intermediate level (B2 standard
\nunder the Common European Framework of Reference for Languages).
\nThis is an increase from the current intermediate (B1) proficiency
\nrequirement for most applicants, including Skilled Workers and
\npartners under Appendix FM of the Immigration Rules.<\/p>\n
It is not anticipated A question arises for individuals who have
\nalready met the English language requirement using an approved
\nEnglish Language Test at B1 level. Will they be required to re-take
\nthe test at B2 level?<\/p>\n
There are concerns about timing and the preparation required for
\nmeeting the English language requirement, even for those that have
\nalready met the requirement at a high level in a previous
\nimmigration application. There is also an additional cost to
\nundertake fresh tests and these costs will be another hidden
\nexpense as part of an already extremely expensive process.
\nParticularly where dependants are also required to meet the
\nrequirement \u2013 for example, a family of two parents and two
\nadult children (dependants who turned 18 while in the UK on a
\ndependant visa) could spend upwards of \u00a3600 just to meet the
\nEnglish language requirement at B2 level.<\/p>\n
A reasonable approach would be to implement transitional
\nrequirements for people that have already met the English language
\nrequirement at B1 level.<\/p>\n
Life in the UK Test<\/p>\n
Perhaps surprisingly, while so many key elements of the
\nsettlement system are subject to change, there is no indication of
\ntransformation to the Life in the UK Test.<\/p>\n
The consultation does ask if integration should be assessed
\nthrough a “revised Life in the UK Test” but the document
\ndoes not provide any further details or reveal what a revised test
\nmay look like. The most recent public commentary on the Life in the
\nUK Test came from the House of Lords inquiry findings published in
\nJune 2022, where recommendations were made for a reform of the Life
\nin the UK test and of its associated handbook as a matter of
\npriority. The report states that the lack of deadline on a review
\nof the test is inadequate.<\/p>\n
Nevertheless, no reform to the Life in the UK test is clarified
\nas part of the consultation document.<\/p>\n
In more detail: contribution requirements<\/p>\n
Taxable annual earnings<\/p>\n
Applicants will be required to show that they have annual
\nearnings above \u00a312,570 for a period of 3 to 5 years to be
\neligible for settlement. This amount is the current threshold for
\npaying income tax and National Insurance Contributions.<\/p>\n
The consultation document does not include the word
\n‘taxable’, but because it references the taxable earning
\nfigures, we presume that the requirement will consider ‘taxable
\nearnings.’<\/p>\n
The Government may wish to use taxable income as the requirement
\nbecause this information is most readily available through HMRC
\nrecords. This will make the verification process more
\nstraightforward, but it can raise other administrative questions,
\nfor example, will applicants need to wait until the end of the tax
\nyear to prove their income figures? A strict interpretation could
\nmean that eligibility is deferred to a date after the end of the
\ntax year. In these cases, there may be circumstances where
\nindividuals must get a short-term extension to their permission to
\nreach the end of the taxable year.<\/p>\n
The taxable income conditions could benefit some people, for
\nexample those with passive income that is taxable in the UK.
\nThere are however groups that could potentially be excluded and
\nseverely disadvantaged by these proposals unless there are
\nexemptions. This may include individuals who entered the UK on
\nroutes that did not require work, such as the British National
\n(Overseas) route. Retired people whose pension income is not
\ntaxable would not be eligible, despite the Government promising a
\nroute to settlement for people in this category.<\/p>\n
Other highly disadvantaged people include dependants who have
\ncaring responsibilities or who have sufficient household income
\nthat they do not need to work, and children with limited
\nimmigration permission who reach 18. Families may need to
\nsubstantially change their arrangements years in advance of
\napplying for settlement.<\/p>\n
It is suggested in the consultation document that exemptions
\ncould apply, and this would be crucial for many applicants that
\nwould be caught by these changes, potentially without
\nrealising.<\/p>\n
The document states that despite the income related thresholds
\nbeing tied to current tax thresholds, the thresholds would not
\ntrack future changes to the tax systems. This means that if tax
\nthresholds increase, for example from the \u00a312,570 income tax
\nthreshold, we should not expect the salary threshold to increase
\nwith it.<\/p>\n
Alternative amount of income<\/p>\n
The contribution requirement states that an applicant can meet
\nthe requirement by having an “alternative amount of
\nincome”. What this means and how this would be calculated is
\nnot elaborated on in the document. No feedback is sought in the
\nconsultation on what alternative kinds of income could meet the
\ncontribution requirements.<\/p>\n
Having an alternative option will help people who do not meet
\nthe standard criteria, but without further clarity we will not know
\nhow useful these arrangements will be. Questions will be raised on
\nwhether the income requirements will be strict for applicants who
\nhave been on maternity leave, disability leave, or other types of
\nabsences that impact their normal income levels.<\/p>\n
Length of contribution<\/p>\n
The consultation document states that the mandatory
\ncontributions must be made for a minimum of 3 to 5 years (subject
\nto consultation), however it does not specify whether the
\ncontributions must be continuous in the lead up to applying for
\nsettlement. It would be fairer if the contributions were not
\nrequired to be continuous, and applicants could meet the
\nrequirements by demonstrating income for periods of 3 or 5 years
\nover the course of their residence in the UK, rather than setting
\nthe clock back to zero if they are no longer earning any
\nincome.<\/p>\n
If the Government decides on a 5 year period for contributions,
\nthis could be another issue for dependants, as their integration
\ninto the workforce may be slower than for a main applicant who
\ncomes to the UK with a job offer or other economic justification.
\nIt could also be an issue for Global Talent migrants and UK
\nAncestry holders who might come to the UK without a firm job offer
\nor income stream, and require more time establish themselves
\neconomically.<\/p>\n
What overall effects may the minimum mandatory requirements
\nhave on eligibility for settlement?<\/p>\n
If these minimum mandatory requirements are implemented as
\nproposed in the consultation document, this will have an enormous
\nimpact on many people who are already on a path to settlement in
\nthe UK. There is a significant risk that people will not know that
\nthe criterion have changed until it’s time to make an
\napplication and they realise that they are not eligible. Some
\npeople may never be eligible for settlement in the UK due to
\nhistoric criminal convictions or having no independent income.<\/p>\n
These changes will impact the most vulnerable people the
\ngreatest, including caregivers who support their families but have
\nno income of their own and are therefore not eligible for
\nsettlement. It will also have a disproportionate impact on young
\npeople and older people, who may not be working due to education
\ncommitments or health concerns. Unless there are exemptions to
\nvarious criteria, many people will find themselves without a route
\nto settle in the UK alongside their families, creating disparity
\nwithin the family unit. The criteria has the potential to become
\nmuch more complex to administer, which in itself can lead to
\ndelayed eligibility and people needing to extend their permission
\nwhile they wait for items like HMRC records. Applicants will likely
\nneed legal advice to successfully navigate the requirements and
\nvarious exemptions.<\/p>\n
The content of this article is intended to provide a general
\nguide to the subject matter. Specialist advice should be sought
\nabout your specific circumstances.<\/p>\n","protected":false},"excerpt":{"rendered":"The Government’s proposed earned settlement model includes a
range of minimum mandatory requirements. These include stricter
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