New Government restrictions relating to highly skilled workers are set to take effect on 31 March 2009. Penningtons' immigration team is advising last minute applicants hoping to beat the deadline that an anomaly could frustrate their plans.
Under the changes to the tier 1 (general) rules, applicants must have at least a Masters degree level qualification. Applicants who only have Bachelor degree level qualifications and who have filed their entry clearance applications before the deadline could still have their applications refused.
This is because the UKBA guidance for applications made outside the UK says that the 'date of application', which is especially critical in circumstances where the rules are changing, is 'the date that the fee associated with the application is paid and the applicant's biometric details are taken'.
However, this guidance contradicts the immigration rules which specify that an on-line application (which most entry clearance applications are) is made on the date that the on-line application is submitted.
Whereas the date of submission of an application (and payment of the fee) is within the control of the applicant, the date of the subsequent appointment for the taking of biometric data is not.
Although the terms of the guidance have no basis in law, there is nevertheless a possibility that entry clearance officers will refuse applications because on the date of application (as incorrectly determined by the ECO following the guidance) the applicants will not qualify as they will not at that date possess a Masters degree or equivalent level qualification.
Penningtons brought this technical inconsistency to the attention of senior UKBA officials more than six months ago and has been pressing for their correction. As at today's date no resolution has yet been offered by the UKBA so applicants should be aware of the potential problem.
Please note that this problem should not affect those making applications in the UK by post as the 'date of application' in such cases is the date of posting.
To assist with our lobbying we would be pleased to hear from any applicants who have had their visas refused because of this incorrect interpretation of the 'date of application'.
For information contact
Philip Barth or
Nichola Carter.