It's a rule

More changes to the Immigration Rules

Iain Palmer — 
It's a rule

It’s a rule

Two Statements of Changes to bring to your attention, HC1038 and HC1039.

On Monday 1 April 2013, HC1038 came into effect and can be viewed here.

Far weightier are the changes contained in HC1039 which will be brought into force on Saturday 6 April 2013 HC1039.   These can be viewed here.

HC1038

This adds to the definition of ‘Public Funds’ in paragraph 6 (Definitions) of the Immigration Rules  to include

..(d) Universal Credit under Part 1 of the Welfare Reform Act 2012 or Personal Independence Payment under Part 4 of that Act;

(e) Universal Credit, Personal Independence Payment or any domestic rate relief under the Northern Ireland Welfare Reform Act 2013;

(f) a council tax reduction under a council tax reduction scheme made under section 13A of the Local Government Finance Act 1992 in relation to England or Wales or a council tax reduction pursuant to the Council Tax Reduction (Scotland) Regulations 2012 or the Council Tax Reduction (State Pension Credit) (Scotland) Regulations 2012.

‘Universal Credits’ and ‘Personal Independence Payments’ are all part of the government’s Welfare Reform Act 2012 which introduces a new benefit called Personal Independence Payment (a PIP) to replace Disability Living Allowance for eligible working age people aged 16 to 64.  Universal Credits will be launched later this year and will replace income-based Jobseeker’s Allowance; income-related Employment and Support Allowance, Income Support, Child Tax Credits, Working Tax Credits and Housing Benefit.  The ‘council tax reduction’ (sub-paragraph (f)) is the new name for ‘council tax benefit’.

At the time of writing, ILPA is seeking clarification on this issue as, on one hand, the UKBA have told ILPA that ‘The amendment does not relate to council tax discounts’ (eg, 25% discount if you live alone) whereas paragraph 7.3 of HC1038 states that ‘the new council tax reduction system in England will replace Council Tax Benefit from 1 April’.  The concern expressed is that a person subject to immigration control currently able to enjoy 25% off their council tax bill may fall foul of the public funds prohibition if the 25% discount is included in the new definition of council tax reduction.    This then is something to watch out for.

HC 1039

These new rules will:

  • make changes to the Tier 1 (Exceptional Talent) and (Graduate Entrepreneur) categories, including allowing any Tier 2 migrant to switch into the Tier 1(Exceptional Talent) category.
  • permit Tier 4 students who successfully completed a PhD at a UK Higher Education Institution to stay in the UK for one year if they remain sponsored by the Higher Education Institution.   The purpose behind this change is to allow those who hold PhD time to gain work experience in their field, to find work in a Tier 2 category or to set up as an entrepreneur.
  • update the Codes of Practice for skilled workers and associated requirements for carrying out the Resident Labour Market Test as well as updating the Shortage Occupation List.
  • make other changes to the Tier 2 category including updating salary thresholds.
  • provide for limits for grants of leave under Tier 1 (Tier 1 (Exceptional Talent currently set at 1,000 places per year)) and Tier 2 (currently 20,700 places per year) of the PBS to continue indefinitely, unless amended by future changes to rules.    The annual limit for Tier 1 (Graduate Entrepreneur) will increase from 1,000 to 2,000 places per year.
  • make provision under Tier 5 for independent professionals seeking admission in relation to international trade agreement and increases the period of leave from 1 year to 2 years for migrants applying to extend their leave under the Tier 5 International Agreement route (overseas government employees, employees of international organisations and private servants of diplomatic households).
  • make other minor (but numerous) changes, updates and corrections to the Points-Based System.
  • delete the temporary immigration rules which facilitated the entry and stay of certain Olympic and Paralympic participants and personnel during the 2012 Olympics and Paralympic Games.   (This particular announcement brought on a short bout of post-Olympic blues.  I’d thought I was over it).
  • clarify that time spent in the ‘Crown Dependencies’ of Jersey, Guernsey and the Isle of Man with valid leave in specified categories counts towards the continuous residence period for work-related settlement.
  • clarify the requirements relating to absences during the qualifying period for settlement on the Tier 1 (General) route.
  • make other changes and clarifications on work-related settlement and long residence.
  • change the current General Visitor rules in order to ‘guard against abuse’.
  • make many changes to the Immigration Rules relating to family and private life.
  • delete paragraphs 257C-E which had been brought into the rules in light of the judgement in Chen and instead make provision for persons falling within this judgement within the Immigration (European Economic Area) Regulations 2006 themselves.
  • introduce a change to safeguard against an offender returning to the UK lawfully but in breach of a conditional caution.
  • introduce specific rules setting out the requirements necessary for granting discretionary leave to unaccompanied asylum seeking children.
  • make provision for a person to apply to be recognised as stateless and to be granted leave to remain in the UK in that capacity.

Forgive me but I’m only going to say more about the last 6 of these.

Visitors (paras. 7-9 of HC 1039)

In order for the Secretary of State to ‘…guard against abuse by those whose repeat visits amount to de facto residence’ (as it says in paragraph 2 of the Explanatory Memorandum) the current paragraph 41(ii) of the current rules stipulating that the particular visitor must intend to ‘…leave the United Kingdom at the end of the period of the visit as stated by him’ will be added to so that it will say ‘…and does not intend to live for extended periods in the United Kingdom through frequent or successive visits’.  Also, to the current paragraph 41(vi) which reads ‘(and)  will maintain and accommodate himself and any dependants adequately out of resources available to him without recourse to public funds or taking employment; or will, with any dependants, be maintained and accommodated adequately by relatives or friends will be inserted ‘…who can demonstrate they are able and intend to do so and are legally present in the United Kingdom, or will be at the time of their visit.’

Private Life (paras. 89-92 of HC 1039)

The Secretary of State refuses to admit defeat on these damn Article 8 rules.  The underlined sections represent the changes:

Requirements to be met by an applicant for leave to remain on the grounds of private life

276ADE. The requirements to be met by an applicant for leave to remain on the grounds of private life in the UK are that at the date of application, the applicant:

(i) does not fall for refusal under any of the grounds in Section S-LTR 1.2 to S-LTR 2.3. and S-LTR.3.1. in Appendix FM; and

(ii) has made a valid application for leave to remain on the grounds of private life in the UK.

(iii) has lived continuously in the UK for at least 20 years (discounting any period of imprisonment); or

(iv) is under the age of 18 years and has lived continuously in the UK for at least 7 years (discounting any period of imprisonment) and it would not be reasonable to expect the applicant to leave the UK; or

(v) is aged 18 years or above and under 25 years and has spent at least half of his life living continuously in the UK (discounting any period of imprisonment); or

(vi) is aged 18 years or above, has lived continuously in the UK for less than 20 years (discounting any period of imprisonment) but has no ties (including social, cultural or family) with the country to which he would have to go if required to leave the UK.

A new paragraph 276A0 will provide that:

For the purposes of paragraph 276ADE the requirement to make a valid application will not apply when the Article 8 claim is raised:

(i) as part of an asylum claim, or as part of a further submission in person after an asylum claim has been refused;

(ii) where a migrant is in immigration detention;

(iii) where removal directions have been set pending an imminent removal;

(iv) in an appeal; or

(v) in response to a (one stop) notice issued under section 120 of the Nationality, Immigration and Asylum Act 2002.

Nothing too controversial there but one wonders why 276ADE(ii) had not been expressly included in the private life rules earlier as it reflects rule GEN.1.9 which had been there from the start.

Appendix FM (paras. 210-279 of HC1039)

There are scores of minor changes to Appendix FM and FM-SE (including many in respect of how applicants can prove their income to meet the financial requirements) but two which stood out for me were a new ground of refusal and the incorporation into the rules of something approaching the PBS evidential flexibility policy.

The new ground for refusal in S-EC 1.8 (Suitability for Entry Clearance) will be that:  ‘The applicant left or was removed from the UK as a condition of a caution issued in accordance with section 134 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 less than 5 years prior to the date on which the application is decided.’    That’s ‘LASPO’ to you and me.

Section 134 (‘Conditional cautions: removal etc of certain foreign offenders’) will as of 8 April 2013 amend section 22 of the Criminal Justice Act 2003 (‘conditional cautions’) to give powers to the police to give conditional cautions to foreign offenders.   The new section 3D of the CJA 2003 will state that ‘A conditional caution given to a relevant foreign offender may have conditions attached to it that have one or more of the objects mentioned in subsection (3E) (whether or not in addition to conditions with one or more of the objects mentioned in subsection (3))’.   The so-called ‘objects’ (in section 3(E)) are ‘(a) bringing about the departure of the relevant foreign offender from the United Kingdom; and (b) ensuring that the relevant foreign offender does not return to the United Kingdom for a period of time’.  Section 3(F) states: ‘If a relevant foreign offender is given a conditional caution with a condition attached to it with the object of ensuring that the offender does not return to the United Kingdom for a period of time, the expiry of that period does not of itself give rise to any right on the part of the offender to return to the United Kingdom.’    A ‘relevant foreign officer’ in section 3G means an offender for whom removal directions have been or may be given under Schedule 2 to the Immigration Act 1971,  section 10 of the Immigration and Asylum Act 1999 or an offender against whom a deportation order under section 5 of the Immigration Act 1971 is in force.

The legislation is clear that the ‘objects’ of the caution are to bring about the departure of foreign offender and to ensure that the offender does not return to the United Kingdom for a ‘period of time’.   I am bound to agree with BID’s concern expressed in its note of 2 April 2013 (well worth a read) written in response to government’s response to the consultation on the draft CPS code of practice on adult conditional cautions (the government documents being found here) that ‘..the use of foreigner offender conditions with adult conditional cautions would be to shift responsibility for foreign nationals facing removal to the Home Office at the point they are transferred to immigration removal centres, but without in any way addressing or resolving the underlying immigration issues in individual cases.’   There is certainly more to be said about this particular topic in a future blog.

Under the Appendix FM-SE (Family Members – Specified Evidence) (see HC1039 para.228) we see something similar to the ‘PBS evidential flexibility’ principle being introduced at paragraph D(f): ‘Before making a decision under Appendix FM or this Appendix, the decision-maker may contact the applicant or their representative in writing or otherwise to request further information or documents. The material requested must be received by the UK Border Agency or Border Force at the address specified in the request within a reasonable timescale specified in the request’.  This is a very welcome introduction.  One hopes that it is applied consistently but if it is not then there arises a strong ground of appeal.

EEA (paras. 86-88 of HC1039)

Paragraphs 257C-parargaphs 257E:  ‘Requirements for leave to enter or remain as the primary carer or relative of an EEA national self-sufficient child’ are to be deleted.  The government had in fact incorporated its own interpretation of Chen into the EEA Regulations back in July 2012, for which see an earlier post.’

Unaccompanied Asylum Seeking Minors (paras. 122-123 of HC1039)

Here the unaccompanied asylum seeking minors’ policy will now be is now reflected within in paragraphs 352ZC to 352ZF.  You will note though that the length of leave under the policy of 36 months has been reduced to 30 months or until the minor has reached 17½ and there is also provision for the cessation of leave in the case of misrepresentation or omission of facts which led to the initial grant.

Statelessness (see paras. 124 – 139 of HC1039)

The new paragraphs 401-416 will provide a route by which those who fulfil the criteria for recognition as a stateless person as defined by Article1(1) of the 1954 United Nations Convention relating to the Status of Stateless Persons and their family members can apply for leave to remain and indefinite leave to remain.

This short post doesn’t pretend to be comprehensive review of the new rule changes, many of which will have at least some impact on the majority applicants. Best then to study them and then to sit tight ready for the next ones.  They’ll be along  soon enough.

Iain Palmer

Iain Palmer

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Iain Palmer is a barrister at Renaissance Chambers specialising in immigration and refugee law.