he published immigration rules (currently HC 395 as amended) spell out the criteria for admission and stay in the United Kingdom. However, the immigration rules do not provide a complete or accurate picture of how immigration controls are in practice operated. The purpose of this article is to identify some of the relevant Home Office policies, concessions and practices which operate outside the immigration rules.Following changes in the Immigration Rules last year several “concessions” were made. These included provisions for admission of unmarried partners, for the stay of persons whose spouses have died within the 12-month probationary period and several concessions relating to students. Most concessions continue to operate outside the framework of the Immigration Rules.
Anyone who enters the UK as a visitor is expressly barred from working in employment or self-employment. To do so is a criminal offence. A visitor may, however, “transact business” while he or she is in the UK. The distinction between “business” and “work” is not defined in the Immigration Rules. In practice, the HO accepts that a foreign national will qualify as a business visitor if:- he or she is a permanent employee of an overseas company who will continue to pay his or her salary; is coming to the UK in the course of employment to perform a specific task which is limited in time and objective for a period of a few weeks; the task is beyond the capacity of the normal staff of the UK employer; no “productive work” is involved; and he or she intends to leave the UK at the end of the visit.
The normal requirement of obtaining a work permit is waived for academics and researchers, provided that: the person will not be paid from a UK source; there is no question of an appointment to a normal post which might otherwise be available to resident labour; the visit will not exceed 12 months; and s/he otherwise satisfies the visitor rules.
It is not usually possible to extend a visit beyond six months, and an extension application normally attracts a speedy negative response, but in “exceptional circumstances,” the HO grants further leave.
With effect from 21.6.99, students no longer need to obtain permission to undertake spare-time and vacation work, do work placements or internships. The criteria are: The student should not work for 20 hours per week during term time (unless the placement is a necessary part of their studies and with the college’s permission); should not engage in business, self employment or the provision of services as a professional entertainer or sports person; and should not pursue a career by filling a permanent part-time vacancy.
An actor, producer, director or technician employed by an overseas firm other than one established in the UK will not require a work permit if they are coming to the UK to film entirely on location. Paragraph 136 of the Immigration Rules allows permit free employment to journalists etc.
Normally a work permit is required for all entertainers. The following are exceptions: Amateur entertainers (whether solo performers or in a group) for one or more engagement, whether profit making or not and secondly professional entertainers coming to take part in a charity concert if they are not receiving a fee and the organisers are not making a profit.
The HO will consider granting entry clearance to overage dependants of
intercompany transferees. The concession extends to dependant parents, subject to entry clearance.
Normally, anyone coming to the UK to participate in professional sport needs a work permit. However, if coming to participate in a charity match the sports person may seek entry on a permit free basis, as may his or her entourage.
Children of work permit holders will normally by permitted to remain in the UK after the departure of the work permit holder to complete the remaining term of the school year. A mother wishing to remain in the UK will be able to do so, but must apply to vary her status to that of a visitor.
Sole representatives are expected to base themselves in UK and spend a minimum of nine months of the year in the UK, but it is possible to approve applications from those who intend to spend less time here provided that the additional absences are essential to the running of the United Kingdom business, for example if the United Kingdom office is to be the centre of European operations.
The HO permits a relative of a sick or disabled person to remain for three months, provided that during this period arrangements will be made for the future care of the patient by a person who does not need leave outside the Rules. Friends are usually excluded except for emergencies. The applicant is expected to leave if the patient is hospitalised or dies. Generally, the carer should be unmarried and have no dependants.
Foreign spouses who separate from their UK spouse within the 12 month probationary period may be allowed to remain permanently.
The author recently attended a conference in London on the updated policies and concessions beyond the UK immigration rules organised by the Immigration Law Practitioners Association, London.
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