[James]

The UK's immmigration rules explained

MAKOSI Musambasi, the Big Brother lass, is all the rave this summer.

Her 15 minutes of fame have, if anything, brought to the fore some critical issues that Zimbabweans in the diaspora are all too familiar with: nursing as a platform to bigger things, AIDS and the rumours of AIDS, media xenophobia, and perhaps by far the most topical, a perilous immigration status accompanied by the constant fear of forced removal to Mugabeland by the real Big Brother, the Home Office. These are some of the issues that have been discussed in relation with Makosi and which most Zimbabweans in the diaspora will relate with.

I cannot, and do not wish to comment on a lot of these, save for the immigration issue. Makosi will hopefully be awash with funds and will enjoy the best that money can buy in terms of legal expertise. Her handlers will have discussed with her some of the various options open to her in order to remain in the UK. I will go through some of these for the benefit of those without the largesse that comes with a third place on Big Brother.

The bible on UK immigration is a document known as the Immigration Rules HC 395 (see here ): It is a document that every Zimbabwean in the UK needs to be familiar with. It lays down in some detail the rules which regulate entry into and stay of non-British and non-EEA persons in the UK. Of particular interest are the provisions for when, and how to switch immigration categories. ‘Switching’ is the term used in legal circles to describe the process of changing from one immigration category into another while in the UK. There are some strict rules that govern switching. Perhaps the one most Zimbabweans will be familiar with is the general bar on visa nationals switching into other immigration categories from the visitor’s category.

Assuming that someone came to the UK from Zimbabwe as a student nurse, they will have been able to switch to the work permit category upon completion of their nursing course. A work permit however, is employer specific. It is applied for by the employer, not the individual. One cannot move with it to a different employer. One cannot use an NHS work permit to get employment as an artist, for instance.

A more flexible category is the Highly Skilled Migrant Programme (HSMP). This is a personal work permit which one can move with to different employers. The HSMP is different from the work permit scheme because it does not require an employer to obtain a work permit for the individual. The UK government’s position is that it set up the scheme in January 2002 as a route for ‘particularly talented people’ to apply to work in the UK. The HSMP has the flexibility of having no employment restrictions and even allows a successful applicant to be self employed if they so desire. It is a points based immigration scheme and you would need to score a total of 65 points across 5 main areas to successfully apply. Success would therefore depend on the applicant’s earning ability assessed by looking at what they earned in the previous 12 months, what their qualifications are, what work experience they have, what achievements they have in their area of expertise, and their spouse’s or unmarried partner's achievements are. An HSMP holder can apply for ILR after 4 continuous years of residence in the UK.

Another option is to become a student. If someone has been legally working in the UK, it is possible to switch into the student category. They should originally have come into the UK with entry clearance as a student, however, and not as visitors. Visa nationals cannot switch to student status from a visitor’s category within the UK. Zimbabwe became a visa country in 2002. Since the 1st of January 2005, it has also become mandatory to enrol with a bona fide education institution in order to get leave to remain in the UK as a student. Bona-fide institutions are those that appear on the Department of Education and Skills (DfES) register of Education and Training Providers (link provided). The programme enrolled for should be a degree programme.

Yet another option is the Science and Engineering Graduate Scheme (SEGS) introduced on 25 October 2004. It allows non-EEA nationals who have graduated from UK higher or further education establishments in certain subjects to remain in the UK for 12 months after their studies in order to pursue a career. An applicant must have successfully completed a recognised science or engineering degree course, Masters course or PhD at a UK institution of Higher or Further Education. DfES has created a list of eligible Science and Engineering courses. There are no restrictions on the type of work a SEGS participant can do.

Finally in this series, one can apply for Indefinite Leave to Remain (ILR) if they have been lawfully resident in the UK for 10 years or more in whatever capacity on the basis of long residence. Alternatively, if they are somehow able to evade the authorities for 14 continuous years, they would be allowed to reside in the UK indefinitely, again on the basis of long residence. Having said this however, it should be noted that the grant of ILR on the basis of long residence is an exercise of discretion by the Secretary of State for the Home Office and each case is dealt with on its own facts. Where the conditions are met, the Secretary of State will usually grant such applications, unless there are ‘strong countervailing factors’.

The above is by no means an exhaustive list of the options available to Zimbabweans wishing to lawfully remain in the UK. Next week, I will continue the discussion of the other options as well as other topical immigration issues.

Taffy Nyawanza writes from Cambridge. He can be contacted on profettaffy@yahoo.co.uk

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