TIER 1 (EXCEPTIONAL TALENT) Tier 1 (Exceptional Talent) of the Points Based System Policy Guidance

Transcription

1 TIER 1 (EXCEPTIONAL TALENT) Version 08/2011 Tier 1 (Exceptional Talent) of the Points Based System Policy Guidance This guidance is to be used for applications made on or after 9 August 2011

2 Contents Introduction... 4 General Guidance for Applicants to the Points Based System... 5 Verification and other checks... 5 Additional evidence for sponsored students... 7 Administrative review (entry clearance applications only)... 8 Appeal Rights (in-country applications)... 8 Date of application... 8 Tier 1 (Exceptional Talent) Overview of Terms and Conditions... 9 The Application Process Designated Competent Body Tier 1 (Exceptional Talent) - Limit Tier 1 (Exceptional Talent) Unique Reference Number Tier 1 (Exceptional Talent) - Points Scoring Points scoring requirements Applications for initial entry Applications to extend permission to stay Attributes (Initial) Applications for initial entry Documents we require Attributes (Extension) Applications to extend permission to stay Points scoring assessment Claiming points English Language Requirement Extension applications only Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 page 2 of 23

3 English language assessment National of a majority English speaking country English language test Degree taught in English Curtailing leave Annex A - Administrative Review Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 page 3 of 23

4 Introduction This document provides policy guidance on Tier 1 (Exceptional Talent) of the points based system. Please note that it reflects policy at the time of publication and is subject to change. For the purpose of these guidance notes, the terms we, us and our refer to the UK Border Agency. It should be read in conjunction with the relevant paragraphs of the Immigration Rules. An applicant making an application from outside the United Kingdom for entry clearance should go to the Visa Services website (formerly known as UK Visas) at howtoapply/vafs, where he/she can find the forms and more information on how to fill them in. Applicants in all the points based system categories will be subject to General Grounds for Refusal. This means that even if the applicant qualifies under the specific category of the Rules under which he/she is applying to come here, there may be other reasons (such as his/her previous immigration history) that may lead to the application being refused. Further information on General Grounds for Refusal is available on our website at homeoffice.gov.uk/sitecontent/documents/policyandlaw/modernised/general-grounds-refusing/ Please be advised that you should not make plans to travel outside of the Common Travel Area whilst your application is under consideration. If you travel prior to a decision being reached on your application, your application will be treated as being withdrawn in accordance with Paragraph 34J of the Immigration Rules. Please be advised that notification of our decision and any documents that you have submitted in support of your application will usually be returned by Royal Mail Recorded Delivery. If you require your documents to be returned by Royal Mail Special Delivery you must provide a prepaid Special Delivery envelope of a sufficient size to return all your documentation when you submit your application. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 4 of 23

5 General Guidance for Applicants to the Points Based System Documents we require The applicant must ensure he/she provides all of the necessary supporting documents at the time he/she sends us the application. We will only accept the documents specified in this guidance. If the applicant does not provide the specified documents, we may contact him/her to ask for them. If the applicant fails to send the correct documents we may refuse the application. Any documentary evidence that the applicant provides must be the original (not a copy) unless we say otherwise. Where a document is not in English or Welsh, the original must be accompanied by a fully certified translation by a professional translator. This translation must include details of the translator s credentials and confirmation that it is an accurate translation of the original document. It must also be dated and include the original signature of the translator. 10. We only need evidence that is directly relevant to the application, as set out in this guidance. We will not consider unrelated evidence when calculating the points score. Verification and other checks 11. We aim to consider applications quickly. However, we must also be confident that applications meet the requirements of the Immigration Rules, and that the information an applicant provides is a true reflection of his/her background. 12. We will ask for a variety of verifiable documents to enable us to consider the application. 13. We may want to check the supporting documents an applicant sends with his/her application. Therefore, he/she must ensure that all the evidence comes from a source that can be clearly identified and that it can be independently confirmed as being genuine. 14. There are two situations in which we will undertake a check: Verification checks where we have reasonable doubts that the documents are genuine; or Other checks where we carry out further checks, for example, where we have doubts about an application or the documents sent with the application but the doubts are not serious enough for us to make a verification check. Verification checks 15. Where we have reasonable doubts that a specified document is genuine we may want to verify the document with an independent person or government agency. 16. The purpose of these checks is to ensure that the document provided is genuine and accurately reflects statements made in the application. If the document is being used as evidence to score points, we also want to ensure that it entitles the applicant to claim those points. 17. Verification may delay our decision on an application so we will only do it when there are clear reasons for it. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 5 of 23

6 Reasonable doubt 18. There are many reasons why we may doubt that a specified document is genuine and what we consider to be a reasonable doubt will depend on an individual application. However, our judgments will be based on the facts we have. Outcome of verification check 19. There are three possible outcomes of a verification check: Document confirmed as genuine. If we can conclude that the document is genuine, we will consider the application as normal. Document confirmed as false. If we can conclude that the document is false, we will refuse the application, whether or not the document is essential to the application. If a document is confirmed as false we will normally refuse the application for more than one reason. For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does not meet the funds requirement and because he/she has sent a false document. Where we confirm that a document is false it will be retained by the UK Border Agency and is likely to jeopardise any future application. Verification check inconclusive. If we cannot verify that the document is either genuine or false then we will ignore it as evidence for scoring points. If the applicant has sent other specified documents as evidence for scoring the relevant points, we will consider these as normal. If the applicant has not sent any other documents, we will award zero points in that area. Refusing applications without making verification checks 20. We may refuse an application without making verification checks in two circumstances: Where we are concerned about a piece of evidence but would in any event refuse the application for other reasons, those reasons will form the basis of the refusal. We will not make verification checks in these circumstances. However, we will always verify passports if we doubt they are genuine. Where there is evidence that proves a particular document is false. If we can confirm that a document is false we will normally refuse the application for more than one reason. For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does not meet the funds requirement and because he/ she has sent a false document. Other checks 21. We will make other checks where, for example we have doubts about an application or the documents sent with the application but these are not serious enough for us to make a verification check. 22. These checks may delay our decision on an application so we will only make them when we have clear reasons to do so. Extra checks 23. Sometimes we will have suspicions about a document, but they will not be enough to make us doubt that it is genuine. For example, this may be because previous verification checks have found that some supporting evidence is invalid and some is genuine, or where evidence provided contradicts information we already have. In these cases, we may carry out more checks. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 6 of 23

7 Outcome of other checks 24. There are four possible outcomes of these checks: Document confirmed as genuine. If we can conclude that the document is genuine, we will consider the application as normal. Document confirmed as false. If we can conclude that the document is false, we will refuse the application, whether or not the document is essential to the application. If a document is confirmed as false we will normally refuse the application for more than one reason. For example, if an applicant sends us a bank statement to show that he/she has enough funds available, and we have evidence that the statement is false, we will refuse the application because the applicant does not meet the funds requirement and because he/she has sent a false document. Where we confirm that a document is false it will be retained by the UK Border Agency and is likely to jeopardise any future application. Check inconclusive. If we cannot verify that the document is either genuine or false then we will consider the application as if the document is genuine. Check gives us cause to have reasonable doubt about the genuineness of a specified document. If we cannot verify that the document is either genuine or false but as a result of the checks we find other reasons to doubt the genuineness of a particular specified document, we may decide to make a verification check. Procedure for verification and other checks 25. The procedures for both verification checks and other checks will usually be similar and will vary from case-to-case, but they may involve: checking the details or genuineness of documents with employers, the relevant embassy or high commission, other government departments (in the United Kingdom and overseas); and checking the accuracy and authenticity of documents with banks, universities and professional bodies. Standard procedure 26. We will use a standard form to record the results of our enquiries, to ensure that we record any feedback consistently. 27. If we cannot obtain an immediate answer to enquiries, we will normally wait for up to a maximum of four weeks for the necessary information. 28. If we make checks on an applicant who is self-employed we will try to establish the business presence, for example by checking business and/or tax registration. 29. Our compliance team may visit the applicant s employer or educational institution (if the applicant is a student) before we make a decision on the application. Additional evidence for sponsored students 30. For the purposes of this section of the guidance, sponsored means wholly supported by an award that covers both fees and living costs. 31. An applicant who has had permission to be in the United Kingdom in one of the following categories, within the last 12 months, may have been sponsored in his/her studies by a Government or an international scholarship agency: Student; or Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 7 of 23

8 Tier 4; or student nurse; or student re-sitting an examination; or student writing up a thesis; or postgraduate doctor or dentist. 32. If the applicant is currently sponsored by a Government or an international scholarship agency, or such sponsorship ended during the 12 months prior to this application being made, the applicant must provide us with the sponsor s unconditional consent in writing confirming that the applicant has permission to remain in or re-enter the United Kingdom. If the sponsor does not give unconditional consent or gives permission for a limited time, we will refuse the application. 33. The evidence must be original, on the official letter-headed paper or stationery of the organisation and have the official stamp of that organisation. It must have been issued by an authorised official of that organisation. 34. If an applicant has received private sponsorship during his/her studies (for example from an employer or relative), we do not require the sponsor s consent. 35. For more advice on sponsored students, see the chapter on Restrictions for some Students with Official Financial Sponsorship in the Tier 4 Policy guidance, which you can find on our website at: Tier4migrantguidance1.pdf Administrative review (entry clearance applications only) 36. If we refuse an application for entry clearance and the applicant thinks that a mistake has been made, the applicant can ask us to check our decision. This is known as an administrative review. Full guidance on administrative reviews can be found at Annex A below. Please note, applicants who are already in the United Kingdom cannot apply for an administrative review. Appeal Rights (in-country applications) 37. If we refuse an application for leave to remain and the applicant thinks that a mistake has been made, the applicant may be able to appeal against our decision. Details on how and if an applicant can appeal against our decision will be included with his/her reasons for refusal letter. Date of application 38. The date of application will be taken to be the following: For applications made in the UK: Where the application form is sent by post, the date of posting; or Where the application form is sent by courier, the date on which it is delivered to the UK Border Agency of the Home Office; For applications made outside the UK: 39. The date that the fee associated with the application is paid. This means the date shown on your payment receipt, which depends on how you paid for your visa application, for example, at Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 8 of 23

9 a British Diplomatic Post, visa application centre or online. Tier 1 (Exceptional Talent) Overview of Terms and Conditions 40. The following table explains some of the key features of Tier 1 (Exceptional Talent). Full details of the requirements are at paragraph 245B to 245BF of the Immigration Rules. Description of category: Length of grant of leave: This route is for exceptionally talented individuals in the fields of science, humanities, engineering and the arts, who wish to work in the UK. These individuals are those who are already internationally recognised at the highest level as world leaders in their particular field, or who have already demonstrated exceptional promise and are likely to become world leaders in their particular area Entry clearance Leave to remain where previous grant of leave was as a Tier 1 (Exceptional Talent) Migrant Qualifying for indefinite leave to remain Three years and four months Two years Full requirements for a grant of ILR under Tier 1 (Exceptional Talent) may be found at paragraph 245BF of the Immigration Rules and in the IDI found on IDIs/idichapter6a/ Applicants must meet the following conditions: Entry clearance or leave to remain under this route will be subject to the following conditions: a) b) c) no recourse to public funds (which means the migrant will not be able to claim most benefits paid by the state); registration with the police, if this is required by paragraph 326 of the Immigration Rules, and no employment as a doctor or dentist in training or as a professional sportsperson (including as a sports coach). 41. All applicants intending to travel to the United Kingdom under Tier 1 (Exceptional Talent) of the points based system will need prior entry clearance. 42. There is no provision in the Immigration Rules for a person already in the United Kingdom in another category of stay to switch in-country into the Tier 1 (Exceptional Talent) category. 43. Applicants admitted to the United Kingdom as a Tier 1 (Exceptional Talent) migrant and wishing to extend their leave in the same category should make their application before their current permission to stay expires. We encourage applications to be made at least a month before leave runs out but if the application is made very early the applicant may fall short of the qualifying period for settlement, should they wish to apply. The guidance on settlement applications can be found on the website at documents/policyandlaw/idis/idichapter6a/ Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 9 of 23

10 The Application Process 44. The following steps provide an overview of the application process, more detailed information can be found later in the document: The first step in the process is for the applicant to request a Tier 1 (Exceptional Talent) Unique Reference Number from the UK Border Agency. This request must state the appropriate Designated Competent Body to endorse the applicant. There is a limit of 1,000 places on this route. The UK Border Agency will provide the applicant with a Unique Reference Number if there are places available within the limit for the selected Designated Competent Body. The applicant can then make an application to the UK Border Agency, together with the Unique Reference Number and supporting documents. Please note the application must be submitted to the UK Border Agency Visa Services, not directly to a Designated Competent Body. The UK Border Agency will send the relevant documentation to the applicant s chosen Designated Competent Body who will advise the UK Border Agency whether the applicant meets their endorsement criteria The UK Border Agency will then consider the application, taking into account whether the Designated Competent Body has endorsed the applicant, make the decision and notify the applicant of the result. Designated Competent Body 45. The Designated Competent Bodies recognised by the UK Border Agency for the purposes of the Tier 1 (Exceptional Talent) route are: Arts Council for arts and culture applications; The British Academy for humanities and social science applications; The Royal Society - for natural sciences and medical science research applications; and The Royal Academy of Engineering for engineering applications. The Designated Competent Body will advise the UK Border Agency whether the applicant 46. meets the criteria it has set for exceptional talent. The criteria applied by each of the Designated Competent Bodies when deciding whether a particular applicant is exceptionally talented are published on the UK Border Agency website: workingintheuk/tier1/exceptional-talent/can-you-apply/initial/ Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 10 of 23

11 Tier 1 (Exceptional Talent) - Limit 47. There is a limit of 1,000 Tier 1 (Exceptional Talent) endorsements between 9 August 2011 and 5 April The endorsements will be assigned to the Designated Competent Bodies in two phases. 500 will be available from 9 August to 30 November, and the second 500 from 1 December to 5 April The total limit will be divided between the Designated Competent Bodies as follows: (a) The Royal Society has 300 places, 150 up to 30 November 2011 and 150 from 1 December 2011 to 5 April 2012; (b) The Arts Council has 300 places, 150 up to 30 November 2011 and 150 from 1 December 2011 to 5 April 2012; (c) The British Academy has 200 places: 100 up to 30 November 2011 and 100 from 1 December 2011 to 5 April 2012; and (d) The Royal Academy of Engineering has 200 places: 100 up to 30 November 2011 and 100 from 1 December 2011 to 5April Tier 1 (Exceptional Talent) Unique Reference Number 49. Before applying, each applicant must request a Tier 1 (Exceptional Talent) Unique Reference Number from the UK Border Agency stating which Designated Competent Body he/ she wishes to endorse his/her application. These reference numbers are how the UK Border Agency manages the limit. 50. IMPORTANT: If the applicant does not have a valid Tier 1 (Exceptional Talent) Unique Reference Number, the application will be refused. 51. A request for a Unique Reference Number must be made by using the inbox provided for this purpose, which is Tier1ExTalentEoI@UKBA.gsi.gov.uk 52. Available places: The UK Border Agency will issue a Tier 1 (Exceptional Talent) Unique Reference Number to an applicant if a place is available within the limit period for the Designated Competent Body when the request for a number is made. 53. Unique Reference Number validity: The Unique Reference Number is valid for 10 working days from the date of issue, so the applicant must make an application for entry clearance within 10 working days of the Unique Reference Number being issued. 54. Single use: The Tier 1 (Exceptional Talent) Unique Reference Number must not have been used in support of a previous application. 55. Specific to the Designated Competent Body: When requesting a Unique Reference Number, the applicant must confirm which Designated Competent Body they wish to endorse them. The applicant cannot then choose a different Designated Competent Body when they make their application, unless they request another Unique Reference Number Maximum of 3 numbers: Important - an applicant may not be granted more than three Tier 1 (Exceptional Talent) Unique Reference Numbers during the period 9 August 2011 to 5 April Any further request will be denied. 57. If a place is unused because an applicant did not apply for, or was not granted, entry Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 11 of 23

12 clearance using the Unique Reference Number allocated for that place, the place will be reallocated to the relevant Designated Competent Body. 58. The waiting list: If a request for a Unique Reference Number is made after the limit of places has been reached for the stated Designated Competent Body, we will hold applicants on a waiting list for that body. If a place becomes available we will issue a Unique Reference Number to the next person on the list. If the request for a Unique Reference Number is made after the limit of places has been reached for all the Designated Competent Bodies, but there are still some applications to be decided by the UK Border Agency, we will hold the applicant on the waiting list. If the request is made after the limit has been reached for all the Designated Competent Bodies and there are no applications awaiting a decision, we will inform the applicant that the limit is full and he/she will not be held on a waiting list. The applicant will be required to request a Unique Reference Number when the next limit period opens. When the limit is full for the limit period, the waiting list will be closed. An applicant still wishing to apply to the route must make a fresh request for a Unique Reference Number after the next release date. 59. When all the places are used within a limit period, no more Unique Reference Numbers will be issued until the next release date. Tier 1 (Exceptional Talent) - Points Scoring Points scoring requirements 60. In order to obtain entry clearance within Tier 1 (Exceptional Talent) an applicant must score: 75 points for attributes (Appendix A of the Immigration Rules). 61. In order to obtain leave to remain under Tier 1 (Exceptional Talent) an applicant must score: 75 points for attributes (Appendix A of the Immigration Rules); 10 points for English language (Appendix B of the Immigration Rules) Applications for initial entry 62. Points available for initial entrants under Tier 1 (Exceptional Talent) are in the table below. This table applies to all applicants seeking entry clearance in this category. Attributes: pass mark = 75 Points Endorsed by Designated Competent Body according to that Body s criteria as published on the UK Border Agency website. Please see the relevant section below for more details. Points available 75 Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 12 of 23

13 Applications to extend permission to stay 63. Points available for applicants seeking to extend their permission to stay in the United Kingdom under Tier 1 (Exceptional Talent) are in the table below, subject to any future changes in the Immigration Rules. This table applies to: all applicants whose previous permission to stay was given under Tier 1 (Exceptional Talent). Attributes: pass mark = 75 Points Points available The applicant is economically active in their expert field as previously endorsed by a Designated Competent Body, in employment or selfemployment or both; and that Designated Competent Body has not withdrawn its endorsement from the applicant 75 Please see the relevant section below for more details. English Language: pass mark = 10 Evidence to prove that the applicant speaks English to the required standard and meets the requirements explained in this guidance. Please see relevant section below for further details. 10 All applications 64. Where the applicant meets the requirements above by scoring enough points, and meets all other requirements of the Immigration Rules, he/she will be eligible for permission to stay under Tier 1 (Exceptional Talent) Attributes (Initial) Applications for initial entry Points scoring assessment 65. For the application to be approved, the applicant must score at least 75 points for their attributes. 66. Points will only be awarded if the applicant is endorsed by the relevant Designated Competent Body, under the application process above (please see the section on The Application Process). Endorsed by the Designated Competent Body If the applicant has submitted a valid application with a valid Tier 1 (Exceptional Talent) Unique 67. Reference Number, the UK Border Agency will submit all relevant information provided with the application to the relevant Designated Competent Body. The Designated Competent Body will advise the UK Border Agency whether the applicant meets the criteria it has set for exceptional talent. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 13 of 23

14 Documents we require 68. Applicants must provide any relevant documents that are set out in the criteria set for the Designated Competent Body they are applying to. This information can be found on the UK Border Agency website: We cannot take responsibility for irreplaceable and/or valuable items provided as part of an application. Attributes (Extension) Applications to extend permission to stay Points scoring assessment 69. In order for the application to be approved the applicant must score at least 75 points for their attributes. Claiming points 70. For an extension application the applicant has to show that he/she is economically active in their expert field as previously endorsed by a Designated Competent Body, in employment or self-employment or both. No points will be awarded if the Designated Competent Body has withdrawn its endorsement from the applicant. Documents we require 71. Paragraphs 245AA of the Immigration Rules states that only specified documents will be accepted as evidence of this requirement. An applicant making an extension application should provide the following supporting evidence to demonstrate that he/she is economically active in his/her expert field (as previously endorsed by a Designated Competent Body) when the application is made. This evidence should take the form of documents showing the applicant s personal earnings (if they are employed) or their earnings or other evidence of economic activity (if they are self-employed). Documents required are: For a salaried employee, payslips. These should be either formal payslips or on company headed paper. If the payslips are not provided on company headed paper or they receive their payslips on line, the payslips should be stamped and signed by the employer or alternatively a letter should be provided on the employer s company headed paper confirming the applicant s earnings. Or If an applicant has worked in a self-employed capacity a letter from their accountant may be provided or alternatively evidence to show they are economically active in the UK at the time the application is made, for example contracts for work. Please note that these requirements reflect policy at the time of publication and may be subject to change by the time an entry clearance applicant applies to extend their stay. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 14 of 23

15 English Language Requirement Extension applications only English language assessment 72. English is the most widely spoken language of the United Kingdom. The ability to speak English to a competent level improves an applicant s potential to succeed in the United Kingdom labour market and assists in integration into the United Kingdom. 73. Therefore, in order to qualify an applicant must provide the specified documents to show that they have a good knowledge of English. 74. There are three ways in which an applicant can show he/she meets the English language requirement. The applicant can: be a national of a majority English speaking country; or pass an English language test detailed in this guidance; or hold a degree that was taught in English and is equivalent to a United Kingdom bachelor s degree or above. Claiming points 75. Applications from people who are unable to score 10 points in the section for English language requirements will be refused. Under Appendix B of the Immigration Rules, we will refuse these applications even if the applicant has attained the pass mark of 75 for attributes and has met all the other requirements of the Immigration Rules for permission to stay as a Tier 1 migrant. National of a majority English speaking country 76. Nationals of the majority English-speaking countries listed below automatically meet the English language requirement: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Canada; Dominica; Grenada; Guyana; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 15 of 23

16 Trinidad and Tobago; and the United States of America. Documents we require 77. Appendix B of the Immigration Rules states that only specified documents will be accepted as evidence of this requirement. The specified documents are: i) Current valid original passport or travel document An applicant who is unable to submit his/her current original passport or travel document at the time of the application must give full reasons for this in the Passport Information section of the application form. The only valid exceptional circumstances in which alternative specified documents may be provided are where the applicant s current passport or travel document has: been lost; been stolen; expired and been returned to the relevant authorities; been sent to another part of the UK Border Agency. Appendix B of the Immigration Rules states that only specified documents will be accepted as evidence of this requirement. The applicant may exceptionally provide the following alternative specified documents: ii) Current national identity document iii) Original letter from the applicant s home government or embassy. This document must be original, on the letter-headed paper of the government or embassy and must bear the official stamp of that institution. It must have been issued by an authorised official of that institution and must confirm the applicant s: full name; date of birth; and nationality. English language test 78. We will only accept test certificates from providers that have been assessed as meeting our requirements. Applicants must do this by checking that they have passed an English language test that is still within its validity period, and has achieved at least CEFR level B1 in all four components (reading, writing, speaking and listening). 79. English language tests that have been assessed as meeting our requirements are available on our website at: eligibility/pointsassessment/englishlanguage/ Applicants with disabilities (for example, hearing difficulties) are not exempt from the English 80. language requirement. They should contact a test provider for details of support that can be provided while taking the test. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 16 of 23

17 Applicants waiting to sit an English language test or waiting for their test result (in country applications only) 81. Some people applying for leave to remain under Tier 1 may need to make their application before they have taken, or received the results of, an English language test. 82. For those applications only, the applicant must give us the date of his/her English language test within 10 working days of submitting the application. This information should be submitted in writing, sent to the following address, giving the applicant s payment reference number: UK Border Agency PO Box 3468 Sheffield S3 8WA 83. Once the applicant has sat the test and received the results he/she must provide the certificate within five working days. 84. When the applicant provides an English language test certificate, we will complete our assessment of the application. 85. If the applicant provides confirmation from the test provider that he/she has sat a test or has a confirmed date to take the test we will continue to hold the application open for the applicant to complete this process. 86. If the applicant does not pass the test on the first attempt, the application will not be held open to allow for more attempts to be made. We will consider the application on the basis of the evidence already provided. In these circumstances, we will refuse the application because the applicant will not have scored 10 points for English language. Documents we require 87. Only the following specified documents will be accepted as evidence of this requirement: i) Original test result certificate. The certificate must clearly show the: applicant s name; qualification obtained; and date of the award. Degree taught in English 88. An applicant may provide evidence that he/she holds a degree which is equivalent to United Kingdom Bachelors level or higher and which was taught or researched in English to a particular level as evidence of his/her English language ability. 89. The degree must: be recognised by National Academic Recognition Information Centre for the United Kingdom (UK NARIC) as equivalent to at least a United Kingdom Bachelor s degree; and have been taught in English to a standard comparable to that of level C1 on the Council of Europe s Common European Framework of Reference for Languages: Learning, Teaching, Assessment (CEFR). Details can be found on the Council of Europe website at Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 17 of 23

18 90. Where the degree was taken in a majority English speaking country, listed below, we will assume it to have been taught in English: Antigua and Barbuda; Australia; The Bahamas; Barbados; Belize; Dominica; Grenada; Guyana; Ireland; Jamaica; New Zealand; St Kitts and Nevis; St Lucia; St Vincent and the Grenadines; Trinidad and Tobago; the United Kingdom; the United States of America. Please note that Canada is not on this list. 91. Where the degree was taken in another country we will always assess it using the points based calculator on our website. The calculator contains information from UK NARIC on whether overseas qualifications are equivalent to United Kingdom Bachelors level or higher. 92. Applicants can claim points when the points based calculator confirms that the degree: meets or exceeds the equivalent level to United Kingdom Bachelors degree; and was taught to a competent standard of English equivalent to level C1 on the Council of Europe s Common European Framework of Reference for Languages: Learning, Teaching, Assessment (CEFR). Checking qualifications 93. An applicant should check his/her degree by referring to the points based calculator on our website at: Where the points based calculator is unable to confirm these details, points will not be awarded for the qualification in question. Where the applicant is unable to find details of their qualification on the points based 95. calculator, UK NARIC will not be able to verify whether a qualification satisfies the English Language requirement. In these circumstances, applicants should either present an alternative qualification from the points based calculator if they possess one, or select an alternative means of satisfying the English Language requirement. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 18 of 23

19 Documents we require 96. Only the following specified documents will be accepted as evidence of this requirement: i) Original certificate of award. This document must be original and must clearly show the: applicant s name; title of the award; date of the award; and, name of the awarding institution. Please note that original provisional certificates are not acceptable. This document must always be provided unless the applicant is awaiting graduation but has successfully completed his/her degree or no longer has the certificate and the awarding institution is unable to issue a replacement, in which case the following should be sent i) Original academic transcript. If the applicant is awaiting graduation but has successfully completed the degree, we can consider an original academic transcript. The academic transcript must be on the institution s official paper and must show: the name of the applicant; the name of the academic institution; the course title; and confirmation of the award. This evidence must be an official document, on the official stationery of the organisation and bear the official stamp of that organisation. It must have been issued by an authorised official of that organisation. The applicant should ensure that the contact details for the awarding body are up-to-date, because if we need to verify the details and are unable to contact the institution we will not accept this evidence and may therefore refuse the application. Curtailing leave The UK Border Agency may curtail a Tier 1 (Exceptional Talent) migrant s leave to enter or 97. remain if the Designated Competent Body that endorsed the application which led to the migrant s current grant of leave withdraws its endorsement of the migrant. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 19 of 23

20 Annex A - Administrative Review (Entry clearance applications only) 1. What is Administrative Review? Administrative Review is the mechanism for reviewing refusal decisions made under the Points Based System where an applicant believes an error has been made in the decision. The Administrative Review is free of charge. Administrative Review is an entitlement but the request must be made within 28 days from the date the refusal notice is received by the applicant. For time limits for making a request, see further paragraphs 6 and 7 below. Administrative Review is a non-statutory scheme; that is there is no legislation setting out what it covers or who is eligible to apply. The policy is contained in this guidance. 2. What if the Administrative Review request refers to matters outside the scope of the Administrative Review? Where this occurs the matters should be dealt with under the normal complaints procedure. In such cases the applicant will be advised in writing. 3. Who conducts the Administrative An Entry Clearance Manager will conduct the administrative review. This may mean that in some cases, an Entry Clearance Manager from another Post will conduct the Administrative Review. The applicant may receive the result of the Administrative Review from an entry clearance post that is different to the one that considered the original entry clearance application. 4. Who can apply for Administrative Review? Anyone refused entry clearance under Points Based System, where they believe the Entry Clearance Officer has made an incorrect decision. 5. How does the applicant apply? The applicant will receive the Administrative Review Request Notice with the entry clearance refusal notice. The applicant must complete the Request Notice in full and send it directly to the address stated on the Request Notice. Applicants must not send any additional documents such as passport or supporting documents with the Administrative Review request notice. If the refusal is subsequently overturned, the applicant will be asked to send in their passport. 6. What is the deadline for applying for Administrative Review? The applicant has 28 days from the date of receipt of the refusal notice, to submit a request for Administrative Review. 7. What if an application is submitted late? Where an Administrative Review request is received outside the 28-day period, the administrative reviewer will consider if there are exceptional circumstances to accept the application outside of the deadline. If the Administrative Review request is late and the administrative reviewer decides not to perform the Administrative Review, the request notice will be returned to the applicant with a letter explaining why it is not being accepted. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 20 of 23

21 8. How many times can an applicant request an Administrative Review? Applicants may request only one Administrative Review per refusal decision. Any further review requests received for the same refusal decision will not be accepted. They will be returned to the applicant. However, where the Administrative Review upholds a refusal but with different refusal grounds, the applicant may request an administrative review of these new refusal grounds. If the applicant has new or further information, documents or other paperwork that they failed to submit with their original application, they will need to make a new application and pay the appropriate fee. 9. How long will the Administrative Review take? The administrative reviewer will complete their review and notify the applicant in writing of their decision within 28 days from the date of receipt of the Administrative Review request notice. If, in exceptional circumstances, the administrative reviewer is unable to complete the Administrative Review within the 28 days, they will notify the applicant in writing as to when to expect a decision. 10. What will the administrative reviewer look at? The administrative reviewer will examine the evidence submitted with the original application, copies of which will be kept at the refusal post. The applicant is not allowed to provide new evidence. Any new evidence must be disregarded unless the applicant was refused under paragraph 320 (7A) or 320 (7B) of the Immigration Rules on General Grounds for Refusal (see paragraph 12). Any new evidence submitted by the applicant must be returned to them together with the outcome of the Administrative Review. 11. How are Administrative Review decisions made? The administrative reviewer should focus on the areas which the applicant has asked to be reviewed. They will check that: points have been correctly awarded; documents have been correctly assessed; and verification checks have been properly carried out. The administrative reviewer may recommend that the reason for refusal should be overturned, if they find that the Entry Clearance Officer: failed to properly consider evidence submitted with the original application; failed to apply the Immigration Rules correctly; made a mistake in processing the application; failed to give adequate reasons for refusing entry clearance. In this case, the administrative reviewer will recommend the Entry Clearance Officer revoke the original refusal and serve a new refusal notice giving a full explanation for the refusal. Where the administrative reviewer recommends in line with the above, that the reasons for refusal should be revoked, the applicant may still be refused but with new grounds for refusal. The administrative reviewer will not recommend that the original decision is overturned simply because the applicant claims there is a fault with United Kingdom Border Agency s underlying processes or policies. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 21 of 23

22 12. Does Administrative Review cover General Grounds for Refusal? Yes. Administrative Review will also look at refusals on the basis of paragraph 320 of the Immigration Rules on General Grounds for Refusal. Reviews of refusals made under paragraphs 320(7A) and 320(7B) of the Immigration Rules The applicant may submit further information with the Administrative Review request, if the refusal is based on paragraph 320 (7A) or 320 (7B) of the Immigration Rules on General Grounds for Refusal. If an application has been refused because a false document was used or a false representation was made, the applicant may claim that they were unaware of the false documents or false representations. The refusal will still stand but the applicant would have to prove that they did not know that false documents or false representations were used, if they are not to have any future applications automatically refused for 10 years. Where the documents related directly to the applicant (for example, employment references, qualifications or financial details), such a claim would be likely to fail unless the applicant has clear evidence that an error has been made (for example, written confirmation from an employer, financial institution or educational establishment that they had supplied us with incorrect information at the time we verified the original documentation). If the administrative reviewer does accept that the applicant did not knowingly use false documents or false representations, the refusal will still stand, but the applicant will not automatically have any future applications refused under the rules (paragraph 320 (7B) where false documents or false representations were used. 13. Does Administrative Review cover verification? Yes. As part of the administrative review process the administrative reviewer will ensure that the Entry Clearance Officer has followed the correct verification procedures. 14. What are the possible outcomes of Administrative Review? There are three possible outcomes of Administrative Review: Uphold decision, reasons for refusal remain the same; Uphold decision, with revised reasons for refusal; Overturn decision and issue entry clearance. 15. How is the applicant informed of the result of the Administrative Review? Decision upheld and the reasons for refusal remain the same: the administrative reviewer will notify the applicant by letter. The applicant will not be entitled to a further Administrative Review as the grounds for refusal has not changed. Decision upheld but with revised reasons for refusal: A new refusal notice (GV51) will be served along with the Administrative Review letter from the administrative reviewer stating why the refusal has still been upheld. If there are fresh reasons for refusal which were not notified originally, the applicant will be able to submit a further Administrative Review request limited to those fresh reasons. Decision overturned and entry clearance to issue: The administrative reviewer will notify the applicant by letter and request the applicant s passport. 16. Limited Right of Appeal The applicant can only appeal on any or all of the grounds referred to in section 84 (1)(b) and (c) of the Nationality, Immigration and Asylum Act These are that the decision is unlawful by Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 22 of 23

23 virtue of section 19B of the Race Relations Act 1976 (discrimination by public authorities), and/or that the decision is unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant s Convention rights. All entry clearance applicants under the Points Based System who are refused will be limited to residual grounds of appeal stated above. The process for dealing with limited rights of appeal remains unchanged. Tier 1 (Exceptional Talent) Policy Guidance version 8/2011 Page 23 of 23