21 December 2017

The UK government made changes to the Immigration Rules on 7 December 2017 that may impact on the position of family members of points-based system migrants already in the UK.

If a person makes an application under the points-based system, for example under the Tier 1 (Investor) Visa, then they are able to also obtain visas for their partner and minor children. A family may eventually apply for indefinite leave to remain (settlement) if the main visa holder meets the specific requirements of his visa.

In broad terms, under the Tier 1 (Investor) Visa, if a person invests £2 million and wants to eventually settle in the UK then they will need to commit to spending significant time here. This is because they need to demonstrate to the Home Office that they were not absent for more than 180 days during each separate 12 month period over a five year period before making the application for settlement.

A change to the settlement requirements

Until now, this residence test applied only to the main visa holder. Any dependants were not required to meet this under their applications for settlement. It was therefore desirable for some couples to arrange their visas so that the partner most likely to need to maintain flexibility for international travel would hold a dependant visa. Often, the spouse is not resident in the UK for tax purposes due to the limited amount of time they will spend in the UK.

However, a change to the settlement requirements for partners will mean that they will now need to meet the same residence requirements as the main visa holder, unless the absence relates to assistance with a humanitarian or environmental crisis overseas.

Helpfully, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days. However, for those affected, both partners, as well as main visa holders, will need to keep a count of their days in the UK if they are both intending to settle under a future application.

What does this mean for dependant minors?

This may create difficulties in cases where there are dependant minors and only one parent meets the residence requirements to obtain settled status in the UK. Under normal circumstances, in order for an application by a dependant minor to succeed, both of the minor’s parents must either be lawfully settled in the UK or being granted settlement at the same time as the minor.

In some cases, important decisions as to residence plans will need to be made in the near future. If so, it is important that those affected consider how this additional time spent in the UK will impact their tax position, as well as their immigration position.

This article was written by Pedro Gemal.

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Suzanna Harvey Partner

  • Head of Private Wealth
  • Private Client Services
  • International Tax

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