Since 1891 it has been established at common law that “no alien has any right to enter [what is now the United Kingdom] except by leave of the Crown.” The Aliens Restriction Act 1914, the Aliens Restriction (Amending) Act 1919, and rules and orders made under these acts, gave the common law a statutory basis and formed the restrictions on immigration for much of the 20th Century. The statutory regime governing immigration in the United Kingdom (UK) is now contained in the Immigration Act 1971 and the Immigration Rules made under it. The law requires that individuals who are not British or Commonwealth citizens with the right of abode in the UK, or members of the European Economic Area, obtain leave to enter the UK from an immigration officer upon their arrival.
II. Temporary Workers
The UK’s current immigration rules provide for a points-based tier system. Admission into the UK for temporary workers is provided for by Tier 5. There are six categories of Tier 5 temporary workers:
- creative and sporting;
- charity workers;
- religious workers;
- those entering under government authorized exchange programs;
- those entering under international agreements; and
- those entering under the youth mobility scheme.
None of these six categories is intended to provide a means for low-skilled workers to enter the UK. Tier 3 of the points based system would provide for low-skilled workers to fill specific temporary labor shortages, but that tier has never been brought into operation, as the government considers that much of the UK’s low-skilled labor force needs are being met by workers from the expanded European Union.
To obtain for a visa under almost all Tier 5 categories, the applicant must have a job offer from a sponsor licensed in the UK; have a valid certificate of sponsorship from this sponsor prior to applying for the visa; and score a certain number of points on an assessment. To qualify as a Tier 5 temporary worker in most categories the applicant must score 30 points (for a certificate of sponsorship) and 10 points by demonstrating they have maintenance funds of at least £900 (approximately US$1400) in a bank account. Certain workers may be exempt from demonstrating the maintenance funds if an “A rated” sponsor certifies that they will not claim public funds during their stay as a temporary worker.
A sponsor is a UK-based organization that has registered as a licensed sponsor and meets the requirements for the particular category of Tier 5. Employers must assign prospective employees with a Certificate of Sponsorship, which is required before an application can be made and provides assurance that the applicant is able and intends to work in a specific job.
Accruing the requisite number of points alone does not guarantee a successful application, and the UK Border Agency bases its decision on the complete application and evidence provided to support it. Eligibility for entry as a Tier 5 temporary worker may be refused on “general grounds” even if the applicant is otherwise fully eligible. These general grounds are extensive, and include a criminal history, a previous breach of the immigration rules, and the like.
III. Sponsor Responsibilities
The sponsor is responsible for keeping records of the applicant’s passport, immigration documents and contact details. It is obliged to report to the UK Border Agency if
- a sponsored worker does not show for work on their first day;
- he or she is absent from work for more than ten working days without permission;
- his or her job ends for any reason;
- his or her sponsorship ends for any reason; or
- he or she has any changes in circumstances, such as a change of job.
The notification requirement also arises if the sponsor believes the worker is breaching the conditions of his or her immigration status or is engaging in criminal or terrorist activity.
IV. Visa Conditions
Individuals entering as a temporary worker may engage in work that is supplementary to work for which they were granted leave to enter the country, provided the job is for less than twenty hours per week, does not interfere with the hours for which the certificate of sponsorship was originally granted, and is “on the shortage occupation list in Appendix K of the Immigration Rules or a job in the same sector and at the same level as the work for which the Certificate of Sponsorship was assigned.”
In almost all Tier 5 categories workers may change jobs while in the UK as a Tier 5 worker. The new job can be either with the same sponsor, or a new one. If a new sponsor is used, the worker must be provided with a new certificate of sponsorship and the applicant must provide new evidence that they meet the maintenance requirement. The rules do not permit Tier 5 workers to switch into a different tier or category and they may only stay the maximum time permitted in the Tier 5 category they originally selected.
If a temporary worker’s employment ends before the time allotted in their visa, the UK Border Agency will reduce the duration of stay to a maximum of sixty days. There is no method through which a person who is in the UK as a Tier 5 worker can apply for permanent residence or citizenship.
V. Family Members
In almost all tier 5 categories, the applicant’s dependents may be given permission to stay or enter the UK if the Tier 5 application is successful. Dependents in this instance are considered to be an applicant’s
- civil partner,
- unmarried or same sex partner, or
- child aged eighteen years or under.
As with Tier 5 applicants, dependents must also demonstrate that they have enough funds available for their support for the duration of their stay. It must be shown that each dependent has at least £600 (approximately US$1,000) available in addition to the maintenance fund required for the Tier 5 worker.
VI. Tier 5 Categories
There are some specific provisions that apply to each of the Tier 5 categories that are briefly summarized below.
A. Creative and Sporting
To enter the UK as a sportsperson in the Tier 5 category, the individual must be internationally established at the highest level and/or their employment must make a significant contribution to the development and running of high level sport, and a suitably qualified person is not available in the UK. Sponsors of sportspersons must obtain an endorsement to this effect from the governing body of their sport that is recognized by the UK. Requirements for coaches are less onerous and simply require that the individual be suitably qualified to perform the job.
Sponsors of creative workers must follow a code of practice in the Immigration Rules which requires taking the needs of the resident labor market into account. If a job is not covered by a code of practice the sponsor is required to show that a settled worker could not fill the post.
Sportspersons may be in the country for a maximum of twelve months. There are no ways for sportspersons to extend a stay past that time. Creative workers may receive entry clearance for up to twelve months, extendable for a maximum of twenty-four months, provided they remain with the same sponsor.
B. Religious Workers
Religious workers may be admitted into the UK for a maximum stay of twenty-four months to preach and do both pastoral and non-pastoral work.
C. Charity Workers
Charity workers may enter the UK for a maximum of twelve months to do unpaid voluntary work. They must not receive paid employment and must intend to carry out work “directly related to the purpose of the sponsoring organisation.”
D. Government Authorized Exchange Programs
The government authorized exchange category is “for those coming to the United Kingdom through approved schemes that aim to share knowledge, experience and best practice through work placements, whilst experiencing the wider social and cultural setting of the United Kingdom. This category cannot be used to fill job vacancies or provide a way to bring unskilled labour to the United Kingdom.” Programs provided for under this category include work experience programs, research programs and training programs.
Individuals in this category, with limited exceptions, may not be sponsored by individual employers or organizations as is required by most other Tier 5 categories. Instead, an overarching government body is responsible for assigning certificates of sponsorship.
Entry into the UK in this category is for a maximum period of twenty-four months.
E. International Agreements
The international agreements category is for individuals that enter the UK under contract to provide a service covered under international law, such as private servants in diplomatic households and employees of overseas governments and international organizations. For private servants of diplomatic households the sponsor must guarantee that the applicant is at least eighteen years old and will be employed as a private servant to a named member of staff of a diplomatic or consular mission or to a named official employed by an international organization. The sponsor must also guarantee that the applicant intends to do domestic work on a full time basis for them, will not perform other work, and will leave the UK once his or her permission to stay ends. Overseas governments and international organizations that act as a sponsor must guarantee that the applicant is under a contract of employment with them, will only work in the job specified in the application, and will not change into a different category of worker within the international agreements category upon entry into the UK.
Entry into the UK under this category is for a maximum period of twenty-four months, with limited exceptions that include private servants in diplomatic households and employees of overseas governments.
F. Youth Mobility Program
The youth mobility program is open for young people aged eighteen to thirty-one years old on the date of application. Once in the country, individuals in this category may extend their stay for up to two years, but may not transfer into another tier or category. Applicants under this category must show evidence that they have sufficient maintenance by showing a bank balance of at least £1800 (approximately US$3500) to support themselves during their stay. Individuals entering under this category may not bring dependents, and applicants must not have any children under the age of eighteen living with them, or for whom they are financially responsible.
There are only certain countries whose residents may participate in the program, and there are restrictions on the number of available places for each country that participates. For 2013, the limits are as follows:
- Australia – 35,000 places
- Canada – 5,500 places
- Japan – 1,000 places
- Monaco – 1,000 places
- New Zealand – 10,000 places
- Republic of Korea – 1,000 places
- Taiwan – 1,000 places.
Prepared by Clare Feikert-Ahalt
Senior Foreign Law Specialist
 Musgrove v. Chun Teeong Toy  A.C. 272, followed in Schmidt v. Home Office  2 Ch. 149.
 Aliens Restriction Act, 1914, 4 & 5 Geo. 5, c. 12.
 Aliens Restriction (Amendment) Act, 1919, c. 92, http://www.legislation.gov.uk/ukpga/Geo5/9-10/92/contents.
 E.g., Aliens Order, (1920) Stat R. & O. 448 (as amended).
 Immigration Act 1971, c. 77, http://www.legislation.gov.uk/ukpga/1971/77/contents.
 Immigration Rules (as amended) (Jan. 2013), available at http://www.ukba.homeoffice.gov.uk/policyandlaw/ immigrationlaw/immigrationrules/; R v Chief Immigration Officer, Heathrow Airport, ex. p. Salamat Bibi  3 All ER 843 (CA) per Roskill, LJ: “these rules are [not administrative practice and are] just as much delegated legislation as any other form of rule making activity [and] to my mind, are just as much a part of the law of England as the 1971 Act itself.”
 The European Economic Area consists of the Members of the European Union, plus Norway, Iceland, and Liechtenstein.
 Immigration Act 1971, c. 77 § 3, http://www.legislation.gov.uk/ukpga/1971/77/section/3.
 Immigration Rules, part 6A, http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigration rules/part6a/.
 Temporary Workers, Home Office UK Border Agency, http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/ (last visited Feb. 25, 2013).
 Migration Advisory Committee, Limits on Migration 2.10 (2010), available at http://www.ukba. homeoffice.gov.uk/sitecontent/documents/aboutus/workingwithus/mac/mac-limits-t1-t2/report.pdf?view=Binary.
 Home Office, UK Border Agency, Tier 5 (Temporary Worker) of the Points-Based System - Policy Guidance ¶ 135 (Dec. 2012), available at www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/ pbs/tier5temporaryworkerguidan1.pdf.
 Immigration Rules App. A, ¶ 105, http://www.ukba.homeoffice.gov.uk/policyandlaw/immigration law/immigrationrules/appendixa/, and App. C, ¶ 8, http://www.ukba.homeoffice.gov.uk/policyandlaw/immigration law/immigrationrules/appendixc/.
 Home Office, UK Border Agency, supra note 12,¶ 44.
 Id. ¶ 13.
 Home Office, UK Border Agency, General Grounds for Refusal (Dec. 2012), www.ukba.homeoffice. gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/about.pdf?view=Binary
 Home Office, UK Border Agency, supra note 12,¶ 60.
 Id. ¶ 60.
 Immigration Rules, App. K, http://www.ukba.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigration rules/appendixk/. There is a wide range of jobs that are experiencing shortages and are listed in this appendix, including civil engineers, biological scientists, software professionals, medical practitioners, social workers, nurses, dancers and artists.
 Home Office, UK Border Agency, supra note 12,¶ 158.
 Id. ¶ 164-5.
 Id. ¶ 85.
 Tier 5 (Temporary Worker - Government Authorised Exchange), Home Office, UK Border Agency, www.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/government-authorised-exchange/settlement/ (last visited Feb. 25, 2013).
 Tier 5 (Temporary Worker - Creative and Sporting), Home Office, UK Border Agency, www.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/creativeandsporting/dependants/eligibility/ (last visited Feb. 25, 2013).
 Home Office, UK Border Agency,Points Based System (Dependent) Policy Guidance, ¶ 77 (Dec. 2012), www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/pbs/pbsdependantspolicy1.pdf.
 Home Office, UK Border Agency, supra note 12, ¶ 101.
 Id. ¶ 100.
 Id. ¶ 104.
 Id. ¶ 88.
 Id. ¶ 119.
 Id. ¶ 125.
 Id. ¶¶ 126, 127.
 Id. ¶ 88.
 Id. ¶ 130.
 Id. ¶ 132.
 Id. ¶ 131.
 Id. ¶ 88.
 Home Office, UK Border Agency, Tier 5 (Youth Mobility Scheme) of the Points-Based System – Policy Guidance ¶ 35 (July 2012), available at http://www.ukba.homeoffice.gov.uk/sitecontent/application forms/pbs/tier5youthmobilityguidance1.pdf.
 Id. ¶ 46.
 Id. ¶ 35.
 Youth Mobility Scheme, Home Office, UK Border Agency, http://www.ukba.homeoffice.gov.uk/visas-immigration/working/tier5/youthmobilityscheme/ (last visited Feb. 25, 2013).
Last Updated: 09/11/2013