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Since the sharp economic downturn in 2008, European countries have increasingly turned to Foreign Direct Investment (FDI) to help sustain and develop fragmented economies across the continent. As such, various European countries including Spain, Portugal, Greece, Cyprus and Malta introduced Citizenship by Investment (CIP) programmes to attract this much-needed foreign investment by offering ‘golden visas’ to foreign nationals. These schemes typically involve investment in real estate and government bonds and shares in exchange for residency or citizenship.
The United Kingdom (UK) has also sought to attract FDI to the country in the same way, through the Tier 1 (Investor) route and has been successful in doing so since 2008 despite increases in the minimum investment requirement. With Brexit just around the corner, it is timely to re-examine the position of the route to settlement. This article will examine the UK’s ‘golden visa’, the advantages of obtaining one, and discuss the procedure in place to grant citizenship or permanent residence in lieu of investments in the United Kingdom. In doing so, suggestions will be made as to what further can be done to achieve Theresa May’s vision of a ‘truly global Britain.’
Why get a second passport?
The reasons for attracting FDI are obvious, but why might an individual want a second passport? The main attraction of residence rights and citizenship in an EU country is the access and free movement rights that come with it. This is particularly advantageous for non-EU nationals who undertake business activities in the EU, allowing them to travel freely amongst the Member States without needing a visa. This flexibility is often vital to those in multinational business industries. There are currently two options for those non-EU citizens:
residency, for those who want to live in the country, or citizenship, usually for those who want to remain in their home country.
Furthermore, a second passport provides additional security both in terms of assets and physical security. Many who apply for a second citizenship have particularly volatile situations in their home country, and such investments are often an insurance policy for those who wish to leverage both their assets and personal security across other countries in the event that something should go wrong back home.
The UK: a second home?
Typically, countries such as Portugal, Malta and Greece are popular destinations for those seeking an EU ‘golden visa’ because they are far less expensive than the Tier 1 (Investor) visa offered in the UK. For comparison, CIP’s in Malta start at around €150,000; the minimum investment required to be eligible for a Tier 1 Investor visa is £2 million.
Prior to Brexit, however, the UK still garnered appeal amongst non-EU investors as a gateway to the European single market. Investors were attracted to the UK by its stable economy relative to other countries such as Greece. As a result, the UK was able to place a much higher value of £1 million on Tier 1 (Investor) visas, while still being able to attract large amounts of FDI.
This attraction withered in 2014, however, when the UK increased the minimum investment required for the Tier 1 (Investor) route from £1 million to £2 million. As such the number of Tier 1 (Investor) applications dropped significantly, and the trend continued through 2015 into 2016 (https://www.ft.com/content/08d5b20e-28b5-11e6-8ba3-cdd781d02d89).
However, in the year after the vote to leave the EU ending September 2017, the number of Tier 1 (Investor) applications to the Home Office doubled, and the number of applications granted under this route has increased 66% from the previous year to 335 (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/662550/immigration-statistics-jul-sep-2017snr.pdf). Those foreign nationals who had previously invested in other EU countries are now facing the reality that their Portuguese or Maltese passports will no longer allow free movement to the UK or residency rights after 29 March 2019. The consequence of this is that those investors wishing to keep or continue exercising these rights, will need to hold a UK passport. This could go some way in explaining the uptake in Tier 1 (Investor) applications in the recent year or so.
These recent figures confirm that Britain remains a desirable destination for high net worth individuals and FDI, with Brexit having a clear influence on the statistics. However, as negotiations continue over the UK’s withdrawal from the EU, thought must be given to how the UK will continue to attract high levels of FDI without the European connection. Whilst exploring the eligibility criteria of this route (below), discussion will also focus around how this route could become more attractive in the face of Brexit.
In terms of the investment itself, the Home Office does have restrictions in place in considering what qualifies as part of the £2 million sum. The applicant is required to have invested the capital in the UK within 3 months of the investment start date, and applications that rely on leveraged investment funds will not be granted.
The Home Office will consider investments to be within the UK if they are invested in a company which:
· Has its registered head office in the UK;
· Has a UK business bank account showing transactions for the business that are current; and
· Is subject to UK taxation.
This means that multinational companies considered to be acceptable and that investments can be held in foreign currencies if they are held with UK registered companies with a registered or head office in the UK.
Most importantly, the Tier 1 (Investor) route allows you to apply to settle permanently in the UK after five years if you invest £2 million. Those who can invest more, are incentivised by the opportunity to settle after three years if you invest £5 million, and just two years if you invest £10 million. It should be noted, however, that any dependant family members that you bring with you must always wait five years before they are eligible for settlement. Other jurisdictions in the EU allow dependants to apply at the same time as the main applicant for
citizenship, within very short time frames. If this was to be replicated in the UK after Brexit, the investment opportunities available in the UK will undoubtedly be even more desirable in the future.
Finally, in order to achieve settlement, and ultimately citizenship a year later, the Tier 1 (Investor) has to meet the relevant residency requirements. To qualify for settlement, investors must reside in the UK for at least six months in every twelve-month period, and to qualify for citizenship, the investor should not spend more than 450 days outside the UK over a five-year period. For those who wish to exercise more flexibility and need to travel continuously, this can be a problem. It can be contrasted with Malta where the applicant must only show that they have bought a property and visited Malta once. This is another area in which the UK might look to amend the eligibility criteria in the years after Brexit, by reducing the residence requirement to compete with these alternative European citizenship routes.
The advantages of FDI in lieu of citizenship have been clearly elucidated, and it is evident that various countries and individual across the globe are benefitting from these advantages. The United Kingdom has always been recognised as an attractive country in which to direct this investment due to its stability and opportunities afforded in terms of UK and EU citizenship. With Brexit looming, statistics are showing that the UK is attracting more investors than ever before looking to secure their right to reside and work in the UK before departure from the EU.
In order for this trend to continue beyond Brexit, and to achieve continually increasing FDI, the United Kingdom will need to strengthen its appeal to attract investors directly into the country. This could mean future implementation of the aforementioned changes to the current entry and settlement routes to ensure that the United Kingdom continues as a favourable destination for FDI after Brexit.
This article was written by Grace McGill WS & Jack Freeland of McGill & Co and first appeared in the March 2018 issue of the Newsletter of the Immigration and Nationality Law Committee of the Legal Practice Division of the International Bar Association (Vol 22, No 1). It is reproduced by kind permission of the International Bar Association, London, UK.
Last week the Home Office issued revised guidance surrounding the Tier 1 (Entrepreneur) route for the second time this year. Whilst we covered the earlier changes to this route briefly in a general posting on the rule changes in December , this article will discuss these changes in more detail and also examine the effect of the latest revised guidance.
Job creation requirement
Further clarification for the job creation rule which is intended to help people that have jobs created for at least 12 months before the date of the current application:
The job creation rules previously required jobs to have existed for at least 12 month during the applicant’s most recent period of leave. The new change enables applicants to apply even if their current leave was granted less than 12 months ago; in such cases the jobs must have existed for at least 12 months before the current application
A new transitional arrangement in the rules regarding job creation for people that entered the route before 06 April 2014:
A transitional arrangement relating to the job creation requirement for applicant’s who entered the category before 06 April 2014, currently set out in published guidance, is being incorporated into the Immigration Rules. This transitional arrangement will only apply to extension and settlement applications made before 06 April 2019.
Clarity on hours that employees have worked and been paid for so errors on the calculations can be reduced:
Applicants will now be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate.
Change on the Real Time Full Payment Submission requirement:
An amendment has been made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
An amendment on the job creation dates in question:
An amendment has been made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the business, rather than the period before jobs were created. This provides a clearer demonstration of the net increase in jobs.
Clarity on Third Party Funding from another Company:
Clarifications have been made to make clear that, where funds are currently held by another business, which is not the business the applicant is using to score points, that business is considered to be a third party providing funding.
Clarity on Venture Capitalist Firms providing funding to applicants:
Applicant’s relying on investment from a venture capital firm are now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.
Further changes to cover any abuse of the rules especially to prevent recycling of funds between applicants:
To prevent recycling of funds between applicants, a change is being made so that applicants cannot rely on funds or investments that have been provided by another Tier 1 (Entrepreneur) migrant or migrant’s business or close family member. Who is considered to be a close family member will depend on the facts in an individual application.
Change to the Directors Loan Agreement related transactions which would only apply to investments made after 19 November 2015:
On 19 November 2015, Statement of Changes HC535 introduced a requirement that investments made in the form of directors’ loans must be evidenced through readily identifiable transactions in the applicants’ business bank statements. A further change has now been made so that this requirement only applies to investments after 19 November 2015.
A change to the date that you have to be registered with Companies House for Limited Companies, this will change from 6 months to within 8 months:
A provision is being removed because it contradicts the rule requiring applicants to be registered with Companies House within 6 months of the date the applicant entered the category. The removed provision requires that such registration has to be effected within 8 months of the same date.
Guidance revisions April 2018
Whilst the latest revision of the Tier 1 (Entrepreneur) guidance does not amount to any substantive change in the immigration rules, it is useful to note these amendments.
In the context of what the Home Office consider to be a full-time job, the guidance has been changed from:
“We consider full-time to be 30 hours per week/120 hours per month. Each job will be assessed separately unless you indicate below that you wish to combine one job with another job.”
“We consider full-time to be 30 hours per week. Each job will be assessed separately unless you indicate below that you wish to combine one job with another job.”
The reason for this revision is clearly to stop abuses of the system whereby migrants are meeting the requirements of a full time job simply by working 120 hours a month, without working on a weekly basis.
The following accountancy bodies have also been added to the accepted accountancy body list:
The Institute of Financial Accountants
The Chartered Institute of Public Finance and Accountancy
Our immigration solicitors often consult with Tier 1 (Entrepreneur) applicants looking to navigate the complexity of the points based system Immigration Rules. If you would like further assistance with your Tier 1 (Entrepreneur) application, please contact us for comprehensive, fully up-to-date advice.
Amongst the barrage of stories stemming from the current scandal surrounding the Windrush generation, it is worth remarking on what implications may arise with respect to a separate group of those arriving in the UK with a similar right to work and settle, Europeans.
With the enactment of the British Nationality Act in 1948, came provisions allowing all across the empire and Commonwealth the opportunity to come to Britain. Those who left for the UK were offered a better life, whilst the Government were able to fill worrying shortages in the labour market. It was an attractive prospect for all involved.
Tragically, it has come to light that the children of those in the Windrush Generation are unable to prove their status, causing a myriad of issues from the right to rent to the denial of NHS cancer treatment. Whether malicious intention or mere incompetence by the UK Government, a group of individuals in Britain have been subject to degrading treatment, the peak of which was the likelihood of deportation. Thankfully, the public outcry caused by media spotlight has urged a significant softening of the immigration rules concerning those affected.
The tumult caused by the scandal has had many ponder the consequences for the 3 million EU citizens living in Britain after Brexit. Ministers have stated that there will be less complexity involved, asserting that the system and forms for EU citizens will be “user-friendly”. Whilst this is a promising insight, it is hard to pin down what exactly is meant by this statement, one only has to glance at the current 85 page application for Permanent Residence to appreciate where we currently stand.
Presently, with nothing but speculation, it is difficult to conclude what may emerge from Brexit. One post-Brexit concern appears above all most accurate: the complete meltdown of the Home Office and their ability to process applications within a reasonable time period.
If you are a European wishing to secure your position in the UK in advance of what is to come, we offer consultations and a full application service providing advice and assistance at every step of the way.
In opinion of the Court of Justice,C 89/17 Secretary of State for the Home Department v Rozanne Banger , Advocate General Bobek held that where an EU citizen returns to his Member State of origin, that Member State must facilitate the entry and residence of the citizen’s non EU partner with whom he has created or strengthened family ties in another Member State. The requirement to facilitate does not confer an automatic residence right but does require the Member State to undertake an extensive examination of the personal circumstances of the non EU citizen and justify any refusal of entry or residence.
Ms Banger, a South African national, is the partner of Mr Rado, a British national. Ms Banger and Mr Rado lived together in South Africa between 2008 and 2010 before moving to the Netherlands where Ms Banger was granted a Dutch residency card as an extended family member of an EU citizen in accordance with teh free movement directive. They subsequently moved to the UK in 2013 and applied for a n 2013, a residence card which was refused on the basis that they were not married.
Ms Banger brought a challenge to the Secretary of State’s decision. The Upper Tribunal referred the questions raised in appeal to the Court of Justice concerning the correct interpretation of the free movement directive.
In today’s Opinion, Advocate General Michal Bobek notes, first, that the Court of Justice has confirmed on a number of occasions that EU rules on free movement may, by virtue of the Treaties, also apply by analogy in situations concerning EU citizens returning to their MemberState of nationality after having exercised free movement rights. The logic of this case law is that a person might otherwise be deterred from leaving his country of origin in order to undertake economic activity in another Member State if, on his return, the conditions of his entry and residence were not at least equivalent to those which he would enjoy in the territory of another Member State. This logic also applies fully to ‘extended family members’, including unmarried partners of EU citizens.
However, the Advocate General takes the view that the Court should place more emphasis on the fact that, rather than being discouraged a person should not effectively be penalised ex post for having exercised free movement rights. He considers that such a disadvantage arises in cases where, even though ‘returning’ citizens are subject to the same regulatory regime as nationals who have never exercised free movement, national rules do not acknowledge family ties created or strengthened in another Member State. Objectively different situations cannot and should not, in his view, be treated the same.
Consequently, the Advocate General concludes that the Court should find that a non EU citizen, who is a durable partner of an EU citizen who has exercised his right of free movement,must, upon the return of the EU citizen to his home Member State, not receive treatment less favourable than that which the directive lays down for extended family members of EU citizens exercising their freedom of movement in other Member States.
The provision of the directive which requires Member States to facilitate the entry and residence of non EU citizens with whom an EU citizen has a durable relationship does not confer an automatic residence right. As such, the Advocate General’s conclusion that this provision should apply by analogy to EU citizens returning to their Member State of origin cannot lead to the recognition of an automatic residence right for their non EU partner in the Member State of origin.
The Court of Appeal ruled on 3 conjoined cases in December 2017 where the key question was whether the Zambrano principle had been extended by the CJEU decision of Chavez - Vilchez. Case C-133/15 which found that a third-country national may, as the parent of a minor child who is an EU citizen, rely on a derived right of residence in the EU.
The Court ruled that there was no such extension and whilst the consideration of respect for family life was a relevant factor, it did not lead to a conclusion that residency rights were a given. The matter remains one of compulsion.
In the case of Patel, Shah & Bourouisa EWCA Civ 2028  , they highlighted that the Zambrano principle cannot be regarded as a back door route to residency by non EU citizen parents who otherwise do not meet the requirements of the Immigration rules [74 - 76]
The correct approach, in a case involving a British citizen child, is to ask whether the situation of the child is such that, if the non-EU citizen parent left the EU, the British citizen would be unable to care for the child, so that the child would be compelled to leave (para 77). While consideration of respect for family life was a relevant factor, it could not result in an automatic conclusion that residency should be permitted as a result of the child being compelled to leave because family life would be diminished by the departure of one parent (para 78) :
I would wish to emphasise that consideration of the respect for family life (whether considered under Article 8 ECHR or Article 7 of the Charter), although a relevant factor, cannot be a trump card enabling a court or tribunal to conclude that a child will be compelled to leave because Article 8 (or Article 7) are engaged and family life will be diminished by the departure of one parent. Family life will be diminished by the departure of one parent in the great majority of cases. The question remains whether, all things considered, the departure of the parent will mean the child is compelled to follow.
It concluded that where the British parent was capable of looking after the child, there was no proper basis for a finding of compulsion (para 79).
As outlined in our posting on August 16 2017, last summer the Government commissioned the Migration Advisory Committee to assess and report on the current likely future patterns of EEA migration and the impacts of that migration on the UK after Brexit. After hearing evidence, including that of McGill & Co, the Committee has now published a summary of the some, but not all, of the responses in the interim MAC report. With the final report due to be delivered in September 2018, this article will summarise the findings of the Committee so far.
Are EEA workers more attractive employees?
According to the responses of over 400 businesses, industry bodies and Government bodies EEA migrants are viewed as more motivated, flexible and willing to work longer hours than the domestic labour force.
Employers suggest that UK businesses employ EEA migrants because they are the best possible applicants for the job, not because they are prepared to accept lower terms and conditions.
In response, MAC have stated that it is difficult to objectively assess these claims, but did refer to analysis suggesting that EEA migrant workers report lower absenteeism rates than UK-born employees. Furthermore, the Committee noted that those from newer EU member states seem to be lower paid than the domestic workforce, though that does not imply migration has suppressed the wages of the domestic workforce.
Experts said many firms in lower-skilled sectors have built a business model in which the ready availability of migrant labour from the continent played an important and ‘sometimes vital’ role. MAC chairman Professor Alan Manning said employers in all sectors are now ‘concerned about the prospects of future restrictions on EEA migration.’
In assessing the impact of these future restrictions, the analysis concluded that lower migration into the UK will ‘very likely lead to lower growth’, though the impact on living standards was ‘less clear.’
This report is likely to strengthen the hand of those in government pressing for a more cautious approach to curbing the number of EU migrants coming to Britain after Brexit. The Home Office, welcoming the report, said it is committed to 'controlled and sustainable migration' and said the evidence would be considered in the development of a new migration system which ‘works in the best interest of the whole of the UK.’
Last week the Campaign for Science and Engineering (CaSE) published a policy review setting out their recommendations for the Government on the topic of immigration post-Brexit. Of the many proposals, CaSE suggested:
- Abolishing the Tier 2 (General) cap due to the high number of engineering roles going unfilled;
- Permitting overseas research activity within the rules for Indefinite Leave to Remain; and
- Maintaining the current migration rules for EEA nationals throughout a transition period
In making their case they cite the industries of science and engineering as supporting a strong economy, which employs 5.8 million people in a sector which contributes £32-36 billion per year, which forecasts the creation of 142,000 new jobs between now and 2023.
The policy review is backed by more than 40 universities, institutes, companies, and research charities. It comes just three months after the Home Office announces a Statement of Changes to the Immigration Rules (HC309) in early December 2017, which made considerable amendments to the relationship between academia and immigration. Changes included:
- In substituting paragraph 245HD(d)(i) for paragraph 6A.22, greater leniency has been created in switching between a student visa and Tier 2 (General), by allowing a student to apply to switch in-country without having to wait on obtaining their degree certificates ;
- In substituting paragraph 78C for paragraph A17, the Home Office have permitted a variety of research positions to be exempt from the Resident Labour Market Test; and
- In deleting paragraph 245AAA(b), the Home Office have removed the requirement to have been continuously employed through the qualifying period to be eligible for settlement.
Despite a number of changes to the immigrations rules clearly aimed at ameliorating the situation for graduates and researchers, those who represent the academia in the CaSE do not believe it to be enough, stating that:
“Major change in immigration systems is always disruptive and expensive. Our members are clear that immigration rules should only change once following a Brexit transition period, allowing reasonable lead-in time accompanies by clear guidance and support to employers and individuals. Early confirmation from the UK Government that they will maintain current migration rules and rights throughout transition and until a new system can be effectively delivered would provide much needed certainty and confidence for employers and individuals.”
If you are an academic or researcher and would like more information tailored to your circumstances, we offer consultations and a full application service to provide advice and assistance on the best course of action to take to secure your visit to the UK.
As outlined in the explanatory note, the purposes of the new changes to the Immigration Rules are to:
Ensure that an asylum claim can be deemed inadmissible, and not be substantively considered by the UK, if another EU Member State has already granted the claimant international protection.
Make changes and clarification to Appendix FM of the Immigration Rules relating to family life
Make the annual update to the Appendix V list of Permit Free Festivals.
On the asylum change, paragraph 345(A)(i) of the rules has been changed from:
‘An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
i) Another Member state has granted refugee status.'
‘An asylum claim will be declared inadmissible and will not be substantively considered if the Secretary of State determines that one of the following conditions are met:
i) Another Member state has granted refugee status or subsidiary protection.’
The explanatory memorandum says the change is in line with both the UK’s established policy on safe third countries, and the EU’s objective in reducing the secondary movements of those granted international protection.
Family Life (Appendix FM)
Section R-ILRP.1.1.(d) of Appendix FM has been slightly amended. The changes made to Appendix FM are to clarify that those on a 5-year route to settlement must meet all eligibility requirements, including the immigration status, financial and English language requirements, at every application stage including where indefinite leave to remain is sought after five years, in order to be granted leave.
The annual update to the list of permit free festivals in Appendix 5 to Appendix V means that the new list contains the following festivals for the coming year:
The current registration requirements for Croatian workers will expire on 30 June bringing their rights to work in Britain in line with other EU citizens.
Immigration Minister Caroline Nokes made the announcement in a Written Ministerial Statement to Parliament today.
Legally, the UK could only extend the controls for a final 2 years if there was clear evidence that removing the controls would lead to a serious labour market disturbance. The Government has considered the evidence and with unemployment at near record lows, employment of UK nationals at near record highs and the Eurozone and Croatia forecast to grow strongly over the next 2 years, concluded the economic case for an extension could not be made.
When Croatia joined the EU in 2013, the UK and other member states were able to restrict the access that Croatian citizens had to their labour markets for a maximum of 7 years. The UK is one of a few EU countries (Austria, Slovenia and the Netherlands) which applies such measures. The restrictions have meant that, unless an exemption applied, Croatians needed permission from the Home Office to work in the UK.
Immigration Minister Caroline Nokes said:
This decision has not been taken lightly, but after careful consideration, we have concluded that there is not enough evidence to satisfy the legal requirements to extend the controls for the final 2 year period.
Net migration of EU citizens has fallen in the last year by 75,000 and since joining the EU in 2013 only around a few thousand Croatians have moved to the UK. Estimates suggest there are below 10,000 Croatian in the UK and by comparison, in 2009 at the same point of transitional controls for Romanian and Bulgarian workers there were around 57,000 Romanians and 35,000 Bulgarians living in the UK, according to the Office for National Statistics.
The time-limited restrictions to member states’ labour markets were provided for under the Treaty of Accession 2011 between Croatia and the EU and can be applied for five years, plus an additional two years if required to protect the member state’s labour market from serious disturbance.
Under the UK’s application of the restrictions, Croatian partners and spouses of British nationals or other nationals settled in the UK are exempt, as are Croatian citizens who have worked in the UK for 12 months with the appropriate authorisation.
Today the UK Government laid a draft remedial order before Parliament to amend the good character requirement for British citizenship applications. The order will remove the good character requirement for registration applications under the following sections of the British Nationality Act 1981:
section 4C i.e. application by those born before 1 January 1983 to British mothers;
section 4G i.e. applications by those born between 1 January 1983 and 1 July 2006 to a British father who was not married to the applicant’s mother at the time of the birth;
section 4I i.e. applications by those born before 1 January 1983 to a British father who was not married to the applicant’s mother at the time of the birth.
The good character requirement will also be removed for applications under section 4F, however only where registration is based on the applicant being stateless . Section 4F applies to those who would have been eligible for registration as British citizens whilst they were under 18 had their father been married to their mother at the time of their birth.
The remedial order has been issued to address the declaration of incompatibility made by the Supreme Court in Johnson v Secretary of State for the Home Department  UKSC 56 (see our post on this case at the time here). In this case the court held that imposing a good character requirement on those who, but for their parents’ marital status, would have automatically acquired citizenship at birth interfered with the applicant's right to respect for private and family life, was discriminatory, and was therefore incompatible with the Human Rights Act 1998.
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