ALL IMMIGRATION & HUMAN RIGHTS SERVICE (AIHRS)

16/12/2022

Will Tier 2 Point Based System (PBS) Health and Care visa for Carers continue beyond 14/02/23?

Carers and Senior Carers are in short supply in the UK and so since 15/02/22, the UKVI has included carers in the Tier 2 Point Based System (PBS) Health and Care visa via the Shortage Occupational List (SOL) for the 1 year period between 15/02/22 – 14/02/23. See https://www.gov.uk/health-care-worker-visa

The thinking is that being on the SOL should generally only be a time-bound strategy to address labour shortages rather than having sectors permanently relying on migration, which could make labour shortages, entrenched.

The UK Health and Care visa is usually granted for an initial period of 3 years and can be extended to 5 years, after which one can obtain settlement status in the UK, and become eligible for British citizenship. The visa also allows spouses, partners and dependents to join the main applicant in the UK. Visa applicants (including main applicant, their spouses and other dependents) are exempt from payment of the usual Immigration Health Surcharge (IHS) and receive a decision on their visa application within 3 weeks after lodging their visa application. Visa applicants do not require any prior qualifications or experience to qualify for a Health and Care visa as a carer in the UK. This has all made the carer visa an extremely popular category.

Usual costs include the following:

1. A reduced Visa Fee £247;
2. TB Test $130;
3. IELTS ¢2660;
4. ENIC £49.50 + VAT;
5. Care Course £12 - £100;
6. Air Fares £850;
7. UK Accommodation £600 [first month only];

In order to obtain a visa as a carer, applicants are also required to show available funds of £1,270.00 for the main applicant held in their personal account for at least 28 days before their visa application is lodged, to show they can adequately maintain themselves without recourse to public funds, until they receive their first salary (unless employers provide maintenance assistance). Job offers may come with or without relocation support (e.g. providing accommodation, maintenance, visa fee and air fares payments), entirely at the employer’s discretion.

Visa applicants must intend to work as a Carer as an eligible job under code 6145 on the SOL. Applicants must have a job offer from an eligible sponsor. Applicants must receive a minimum salary of £20,480 per year or £10.10 per hour, whichever is higher. Applicants must prove that they can read, write, speak and understand English to meet the English Language requirements. Non-degree holding applicants are expected to obtain a 4.5 score on the IELTS UKVI Academic or General English Language Test. Degree holding applicants may alternatively obtain an ENIC Comparability Statement to prove their English Language proficiency, in order to meet English language requirements.

Whilst applicants do not require any prior qualifications or experience, and employers will usually provide training, it is also useful to have completed short online care courses to add to CVs, in order to improve one's marketability.

Applicant must also have a clean criminal record and be up to date with their Covid, Hepatitis B and Yellow Fever Vaccinations.

Possession of an international driving permit and ability to afford insurance and own a car to use for work in the UK, although not mandatory, makes it possible to apply for more jobs. This is important because searching for a carer job from overseas can be daunting and depends on the ability to make as many job applications as possible.

The SOL was expanded to allow other lower-skilled occupations like carers to be added for a set period.

That period ends on 14/02/2023, so the obvious question on everyone's mind is whether the Health and Care Visa will remain available after 14/02/23.

The Home Office had indicated that they shall review the success of this change to include carers on the SOL in late 2022. As yet, there have been no official communications on this from the UKVI or Home Office Secretary.

On 01/09/22,a letter from Kevin Foster MP, the Minister for Safe and Legal Migration to Professor Brian Bell (See https://www.gov.uk/government/publications/mac-commissioned-to-review-shortage-occupation-list/letter-from-the-minister-for-safe-and-legal-migration-to-professor-brian-bell-accessible) commissioned the Migration Advisory Commission (MAC) to review the SOL and report back by the end of March 2023 with a view to implementing any changes in Autumn 2023. Therein it was stated “the Government recalls the MAC’s recommendation for the inclusion of care workers in the route not to expire automatically after 12 months, and recognises the challenges faced by the care sector in terms of increased demand for adult social services, increasing vacancies and issues with staff retention. The MAC has said it will make a further recommendation about the position of care workers on the SOL as part of this commission, which the Government will consider when the MAC reports. We do not intend to make any changes to the provisions for care workers before this point (with the Immigration Rules themselves having no such expiration date in them), however the Government reserves the right to review the position in response to any emerging issues.” Clearly, the government does not intend any changes to the provisions for care workers before the MAC reports.

The MAC has since accepted the commission (see https://www.gov.uk/government/publications/mac-commissioned-to-review-shortage-occupation-list/response-from-professor-brian-bell-accessible ), but has asked for more time and intends to report back as close to Spring 2023 as possible, with any changes to be ready to be implemented in the October 2023 updates.

A Skills for Care report published in October 2022 (see https://www.skillsforcare.org.uk/adult-social-care-workforce-data/Workforce-intelligence/publications/national-information/The-state-of-the-adult-social-care-sector-and-workforce-in-England.aspx), found that in the year to March 2022 there were: a total of 1.79 million posts in adult social care, of which 1.62 million were filled, leaving 165,000 vacant, constituting a rise of 52% on the previous year, the number of filled posts falling by 50,000 compared with the previous year - the first drop ever. The report attributed the fall to continuing problems with recruiting and retaining staff, and the demand for care rising and warns the shortage of care workers will increasingly affect people who need support, and their families, with more than a quarter (28%) of the existing workforce being aged over 55 and likely to retire within 10 years. The government in response to the report has said that since the report, tens of thousands care workers have been appointed from overseas and that a £15m international recruitment fund and a new domestic campaign were to be launched soon.

The inclusion of cares on the SOL provides a workable solution to include some much-needed ‘less skilled' occupations such as care workers in the SOL is clearly part of continuing international and domestic campaigns. However, this has not been as attractive for employers as originally envisaged, primarily due to the high level of an Immigration Skills Charge (ISC) payable by them, of between £364-£1,000 per year, per worker. This has in turn made it difficult for many overseas applicants fighting for fewer jobs. The scheme may actually need revision to make carer jobs exempt from Immigration Skills Charge, or to lower that charge dramatically, otherwise it is unlikely to effectively impact on reducing shortages as lower numbers of employers will continue not to choose this route due to the high costs.

The ongoing crisis within the NHS is also considered to require immediate expansion of social care to enable patients to flow out of A&E care into social care in order to reduce the pressure on hospitals, nurses and doctors, such that in the immediate short-term an increase in demand for carers is most likely to be canvassed for.

In conclusion, interested job applicants are encouraged to continue to focus on making job applications, in order to obtain a job offer before 14/02/2023, and apply for a visa before the 14/02/23 deadline, since all visa applications lodged before that date are assured of consideration under existing rules and a visa likely to be granted if all criteria are met. Beyond 14/02/2023, AIHRS assessment is that shortages in the care sector remain and so there is a strong likelihood that the scheme will be extended, pending an official government announcement.

01/04/2022

For all your visa and immigration needs contact AIHRS.

01/04/2022

11/08/2021

UK’s WINDRUSH SCHEME

The Windrush scheme’ introduced in May 2018, offers free citizenship applications for Commonwealth citizens who arrived in the UK from 1948 to 1973, and to children who joined their parents before turning 18. As Commonwealth citizens those who arrived were automatically British subjects and free to permanently live and work in the UK, and many did so without obtaining additional documentation. The UK Government has provided online guidance for Commonwealth citizens - known as ‘Windrush’ cases (see https://www.gov.uk/government/publications/undocumented-commonwealth-citizens-resident-in-the-uk/undocumented-commonwealth-citizens-resident-in-the-uk). Individuals can also contact a dedicated Windrush taskforce via 0800 678 1925 or via [email protected]. Information provided to the taskforce aims to help resolve cases as soon as possible and will be kept in the strictest confidence and not used against applicants or to deport individuals.

The ‘WINDRUSH GENERATION’ refers to Commonwealth nationals who settled in the UK before 1973. Many took up jobs in the budding NHS and other sectors affected by Britain’s post-war labour shortage. The Immigration Act 1971 provided protection for Commonwealth citizens if they have lived in the UK for more than 5(five) years and if they arrived in the country before 1973. The Act provided that those in the UK before it came into force should be treated as having been given indefinite leave to enter or remain in the UK, as well as retaining a right of abode for certain Commonwealth citizens. Therefore everyone that arrived in the UK before 1973 was given settlement rights and was not required to get any specific documentation to prove those rights.

It has been confirmed that:
1 . anyone from the ‘Windrush’ generation can become a British citizen
2 . the free citizenship offer will apply not just to the families of Caribbean migrants who came to the UK between 1948 and 1973 but anyone from other Commonwealth nations who settled in the UK over the same period
3 . the Government will waive fees for British citizenship applications both for the Windrush generation and their children, both to those who have no current documentation, and also to those who have it
4 . non-Commonwealth citizens who settled in the UK before 1973 and people who arrived between 1973-88 who have an existing right to be in the UK are not expected to pay for the documentation they need to prove their indefinite leave to remain. Confirmation of existing British citizenship for children born to the Windrush generation in the UK also can be given where needed free of charge.
5 . the knowledge of language and life in the UK test will not be required or attendance at a citizenship ceremony
6 . any charges for those returning to the UK for those who had retired to their countries of origin after living in the UK would also be removed, with further work with our embassies and high commissions around publicising this offer
7 . those applying for citizenship under the scheme will not need to meet the good character requirements in place for all citizenship and those who are looking to return to the UK having spent recent years in their home countries should receive assistance, free of charge.

The WINDRUSH SCANDAL first surfaced in 2017, after it emerged that 100s of Commonwealth citizens, many of whom were from the ‘Windrush’ generation, had been wrongly detained, deported and denied legal rights under UK’s deeply flawed and discriminatory immigration system. The UK’s ‘Hostile Environment’ legislation - a policy announced in 2012 had tasked the NHS, landlords, banks, employers and many others with enforcing immigration controls, aiming to make the UK unattractive for undocumented migrants and ultimately cause them to leave. Many of the Windrush general were caught out by the Hostile Environment’ policy, as many of had acquired rights without the need for documentation, many had arrived as children on their parents’ passports, and the Home Office had destroyed 1000’s of landing cards and other records, many lacked the documentation to prove their right to remain in the UK. In addition the UK unfairly placed a virtually impossible burden of proof on individuals to prove their residency predated 1973, requiring individuals to provide at least one official document from every year an individual had lived in the UK.

An independent review by Wendy Williams, Her Majesty’s Chief Inspector of the Constabulary was published on 19 March 2020, found that the Windrush scandal was not an accident, but the inevitable result of policies designed to make life impossible for those without the right papers, which coupled with decades of immigration legislation explicitly aimed at reducing non-white immigration from the Commonwealth, destroyed the lives of many black and minority ethnic British people.

In September 2020, the Home Office published an action plan, heralded to ‘deliver for the Windrush generation’ and usher in ‘people-focused policies’ but in practice, criticisms have been that the plan lacks substance, is full of evasive language, wilfully misinterprets recommendations from Wendy Williams' report, and maintains the status quo without addressing the hostile environment policy.

ENTITLEMENTS UNDER THE WINDRUSH SCHEME

If you’ve lived in the UK continuously, or have the right of abode, you can apply for one of the following: (i) British citizenship; (ii) a document confirming that you are already a British citizen; (iii) a document confirming you have the right of abode; (iv) a document confirming you have indefinite leave to remain; or (v) a document confirming you have the right to live permanently in the UK. An application form can be downloaded from https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/890905/Windrush-02-20.pdf. You will need to establish that (i) you are a national of a Commonwealth country or group listed in the Windrush Scheme Policy, you either settled in the UK before 1 January 1973 and you have been continuously resident in the UK since your arrival or you have the right of abode; or (ii) you are a national of a Commonwealth country or group listed in the Windrush Scheme Policy, you settled in the UK before 1 January 1973 and your settlement status lapsed because you left the UK for more than 2 years and you are now lawfully in the UK and have strong ties with the UK; or (iii) you are the child of a national of a Commonwealth country listed in the Windrush Scheme Policy, and you were born in the UK or arrived in the UK before you were 18 years old and you have been continuously resident in the UK since your arrival and your parent was settled before 1 January 1973 or has the Right of Abode (or met these criteria but is now a British Citizen); or (iv) for any nationality - you arrived in the UK lawfully before the end of 1988 and are settled in the UK.

If you’ve left the UK, and have lost your indefinite leave to remain, and are outside the UK you might be entitled to: (i) a Returning Resident visa using the online Windrush Scheme Application (Overseas) application form via https://visas-immigration.service.gov.uk/product/uk-visit-visa; or (ii) a 10 year multiple visitor entry visa.

IMPORTANT CONSIDERATIONS UNDER THE WINDRUSH GUIDANCE

RETURNING RESIDENTS Part 1 section 1(2) of the Immigration Act 1971 which came into force on 1 January 1973 states that foreign nationals who were ordinarily resident in the UK on that date are deemed to have settled status indefinite leave to enter (ILE) or indefinite leave to remain (ILR) unless they: (i) were exempt from immigration control on that date; or (ii) had the right of abode.

Where a person is the subject of a deportation order made on criminal or nonconductive grounds, they should apply to Criminal Casework in Immigration Enforcement via the CCD Intake team ([email protected])for their deportation order to be revoked.

LAPSE OF INDEFINITE LEAVE Article 13 of the Immigration (Leave to Enter and Remain) Order 2000 makes provision for certain types of leave to enter or remain not to lapse on leaving the common travel area, unless a person remains outside the UK for a continuous period of more than 2 years. This means that when a person with indefinite leave to enter or remain stays outside the UK for more than 2 continuous years, their leave automatically lapses as a matter of law. The exception to this was Commonwealth citizens settled in the UK when the 1971 Act came into force. Under section 1(5), they were protected from losing their indefinite leave from absences outside the UK until 1 August 1988 when section 1(5) was repealed. After this date, any ILR would be lost following an absence of 2 years or more. Provision is contained within the Immigration Rules, however, for indefinite leave to be reinstated where a person can meet the requirements as a returning resident.

FACTORS FOR CONSIDERATION The following factors will be considered when assessing whether a person can be readmitted to the UK as a returning resident under the Windrush Scheme: (i) their strength of ties to the UK including the nature of those ties and the extent to which those ties have been maintained during the applicant’s absence; (ii) the length of their original residence in the UK; (iii) the length of time the applicant has been outside the UK; (iv) the circumstances in which they left the UK and their reasons for remaining absent (for example, those within the Windrush cohort may have left the UK under the impression they were British citizens and so believed there was no restrictions on the time they spent outside the UK); (v) their reasons for now wishing to return; (vi) whether if they were to be readmitted, they would continue to live in the UK; (vii) any other compelling or compassionate factors; and (viii) whether the general grounds for refusal apply (A person will not qualify to be readmitted as a returning resident if the general grounds for refusal apply).

STRENGTH OF TIES TO THE UK A person’s ties to the UK may be evident in a number of different ways. The nature of those ties, and the degree those ties have been maintained during a person’s absence, will need to be considered when assessing whether a person should be readmitted as a returning resident. Such ties may include (but are not limited to) (i) family ties; (ii) property ties; and (iii) business ties.

FAMILY TIES Where a person has close family ties in the UK which have been maintained during their absence, this will likely indicate strong ties to the UK. The more immediate the family members are, for example parents, spouse, partner, children or grandchildren, the greater the strength those ties are likely to have. However, relationships with wider family members, such as cousins or nieces and nephews, may also be taken into account if those ties have been closely maintained. The nature of any contact will also need to be considered. For example, regular visits from, or to, the applicant from family members in the UK will help demonstrate the strength of those ties. Such contact does not, however, need to be have been made physically in person, and strong ties can still be demonstrated where there has been regular contact through other means.

PROPERTY AND BUSINESS TIES Ties may also be in the form of property or business interests. This may be, for example, where the applicant owns their own property in the UK or has a vested interest in an ongoing business venture within the UK. Ties on the basis of property or business interests alone, are unlikely to demonstrate strong ties to the UK, but can be used in conjunction with other factors to satisfy this.

LENGTH OF ORIGINAL RESIDENCE Generally, the longer the period of original residence, the more likely it is that the applicant will have developed strong ties to the UK and can be admitted as a returning resident. The length of the original residence will be considered together with all other relevant factors. An application must not be refused solely based on a short period of original residence if the other evidence points to the applicant having strong ties to the UK.

LENGTH OF TIME OUTSIDE THE UK The length of time spent outside the UK will be an important factor to take into account when assessing whether a person can be readmitted as a returning resident. This must be assessed against all other factors, including the time spent in the UK before they left.

EVIDENCE This list is not exhaustive and other evidence can be taken into account. Each case must be considered on its individual merits. Evidence to support an application may include, for example: (i) evidence of settled status - for those within the Windrush Scheme, this is unlikely to be evidenced through a vignette, biometric residence permit (BRP) or passport- other evidence, such as Doctor’s records, or school letters may be taken into account instead; (ii) details of any family in the UK and correspondence with them (to establish strong ties to the UK)l (iii) evidence of property in the UK and/or any business interests (to establish strong ties to the UK); (iv) letters of enrolment/attendance at an education establishment if they have been studying outside the UK for long periods; (v) letter of employment where this has been reason for their absence from the UK; and (vi) a letter from a medical professional if their reason for their absence relates to caring for another person or for their own medical reasons.

STRONG TIES When considering whether a person in the UK has strong ties to the UK one will want to consider similar factors to returning residence – for example strength of ties, family ties, property and business ties and length of residence. However, where the person is in the UK, factors relating to their departure from the UK and their reason for wanting to return will not be relevant.

A complimentary Windrush Compensation Scheme provides payments to individuals who suffered losses as a result of not being able to evidence their lawful status in the UK, including access to council services such as housing and those with social care needs. The Compensation Scheme has so far paid out over £14 million in compensation and has offered a further £12 million. The Windrush compensation scheme is considered by many as a failure. It is complex to navigate, free legal advice is lacking, it takes too long process and compensation offers are scornfully low.