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More new rules…

More new rules…

On 22 November 2012 a new Statement of Changes was laid which brings in quite a few amendments to the Immigration Rules. A large proportion of those changes are yet again to clarify, correct and/or put into place what was apparently always intended with the July 2012 changes. Other changes also include new provisions.

Due to the significant number of these changes, I have sought to summarise the more substantial ones below and then I have organised the more technical and perhaps less wide-ranging changes in a table format, which largely relate to the points-based categories and which will be posted shortly. Most of the changes come into force on 13 December 2012, a mere 21 days after the statement was initially laid. Yes, certainly an improvement on the two July and the September statements but far from the 40 days that should be followed for the statement to be considered under the negative resolution procedure.

Applying for ILR in work categories

In the work-related categories that lead to settlement, so including the PBS categories but also work permit holders, UK ancestry, business person, domestic worker/private servant etc…, the Rules now specifically set out the number of days under which an applicant can be abroad without their application being refused. The total number of days is 180 days in any of the 12 calendar month periods preceding the date of the application for ILR. So for every period of 12 months in a person’s lawful stay in the UK, up to 180 days is allowed. However there is a proviso: that the absences from the UK must have been for a purpose that is consistent with the continuous permitted employment, including paid annual leave or for serious or compelling reasons.

Changes to the “Family Life” categories

Numerous changes are being made in order to correct omissions following the introduction of Appendix FM and these are in my view the most salient ones:

  • Bereaved partners and victims of domestic violence can also benefit from the transitional arrangements under Part 8.
  • Those who continue to benefit from the transitional arrangements under Part 8 but who do not qualify for ILR because of criminality, e.g. an unspent criminal conviction, can continue to be granted leave to remain under Part 8.
  • The other children of a parent who is applying for leave on the basis of their relationship with a particular child (whether under the access/sole responsibility category or under the British citizen/7 year route), will now be granted leave in line with the parent.
  • A surprising but welcome change is the creation of a category in Appendix FM for children of a ‘migrant parent’ for whom the parental responsibility may be shared and not necessarily undertaken on a sole basis. The words “the applicant’s parent has had and continues to have sole responsibility for the child’s upbringing or the applicant normally lives with this parent and not their other parent will be inserted, reflecting perhaps the more common scenario of separated families.
  • Those granted limited leave for 6 months or less pending the outcome of family court or divorce proceedings to make an application under Appendix FM.

Evidential flexibility in Appendix FM-SE ?!

In line with the evidential flexibility policy under the Points-Based System, there will be clear déjà-vu feelings with the up-coming changes in Appendix FM-SE. I can’t help but comment that the UKBA took deliberate steps to move away from the previous regime of a caseworker exercising their discretion in order to reach an über-regimented and mandatory framework when it came to evidencing an applicant’s circumstances. And of course, UKBA is now realising that this is just not feasible. The only consolation here is that at least UKBA is being honest about it and incorporating the ‘evidential flexibility’ into the Rules rather than maintaining a secret policy as was the case for years in the Points-Based System.

So the Explanatory Statement sets out that:

7.43 Minor amendments will be made to the requirements under Appendix FM-SE for specified financial evidence in support of family migration applications under Appendix FM, in line with the Rules for the Points-Based System. This will provide more flexibility than previously allowed.

7.44 Amendments will also be made to the evidential flexibility policy under Appendix FM-SE:

• To allow applications to be deferred pending submission of missing evidence or the correct version of it within a reasonable deadline.

• To enable applications to be granted despite minor evidential problems where the caseworker is otherwise satisfied that the applicant meets the requirement to which the document relates.

It seems that this is sensible and as long as caseworkers actually follow this procedure and contact applicants in order to rectify errors and/or submit further documents, this should avoid many cases being refused.

Change in the “Private Life” category

The seven year children policy together with the Zambrano principle were said to have been incorporated into the July changes to the Rules. What was put into place was a category in Paragraph 276ADE whereby a child could apply for rILR on the basis that they had lived in the UK for a continuous period of 7 years (full stop). However, in the ‘family life as a parent’ category of Appendix FM, a parent could only apply for LTR on the basis of their relationship to a child who had lived in the UK for a continuous period of 7 years and it would not be reasonable to expect the child to leave the UK.

This has now been rectified and the second limb of the reasonable test will now be added to the relevant part of Paragraph 276ADE with both categories mirroring each other now. This will be in force from 13 December 2012 and there are transitional arrangements in place so any application made before 13 December will be considered under the previous rules – so get those children applications in ASAP!

Criminality

Continuing with the Governments’ recent drive to reiterate the public interest in criminal deportations or in excluding those with criminal convictions from the UK, the changes incorporate several quite far-reaching amendments:

  • In the general grounds for refusal in Paragraph 320 (for entry clearance/leave to enter), the same levels of prison sentences that are set out in the “suitability” criteria in Appendix FM (over 4 years, between 12 months and 4 years and less than 12 months) have been introduced. In particular, a new category for persons convicted of a prison sentence of less than 12 months unless a period of 5 years has since passed. Provision is made for exceptions under the ECHR or the Refugee Convention. Otherwise it will only be in exceptional circumstances that the public interest in maintaining a refusal will be outweighed by compelling factors.
  • For some reason the periods set out immediately above are increased when it comes to leave to remain (variation or ILR). In Paragraph 322, a period of 7 years will have to lapse if a person has a sentence of less than 12 months.
  • Controversially, a new category is inserted in Paragraph 320(7B) for those who left or were removed from the UK as a condition of a caution issued in accordance with s.134 Legal aid, Sentencing and Punishment of Offenders Act 2012 more than 5 years ago.
  • Escalating in controversy, under the discretionary general grounds for refusal, 320(18A) will be inserted to allow for persons to be refused, who have within the 12 months preceding the date of their application been convicted of or admitted an offence for which they have received a non-custodial sentence or other out of court disposal which is recorded on their criminal record.
  • Then 320(18B) is to be inserted for a person to be excluded if their offending has caused serious harm or if they are a persistent offender who shows a particular disregard for the law.
  • Similarly in Paragraph 322, the relevant period for a person’s non-custodial sentence to count against them is 24 months preceding the date of their application when applying for leave to remain as opposed to 12 months as set out above.
  • A new power will be inserted whereby leave can be curtailed when a person has, within the first 6 months of being granted leave to enter committed an offence for which they are subsequently sentenced to a period of imprisonment.
  • The periods whereby a person subject to a deportation order will continue to be excluded from the UK have been set out in Paragraph 391 and these will be 10 years for sentences of less than 4 years and when the sentence is of at least 4 years ? Well the period is forever… unless the ECHR, Refugee convention or other exceptional circumstances can be applied.
  • Lastly in terms of the notable changes, ex-armed forces and Ghurkhas will be able to qualify for further leave to remain if they cannot qualify for ILR because of an unspent criminal conviction.

Preparing this post has given me quite the headache so do check the rules yourself when you come to prepare an application where any of the above might apply (a gentle disclaimer here perhaps!?). As mentioned above, I will also be posting a further table with the more technical changes which are being brought about in relation to the Points-Based categories.

Sarah Pinder

Sarah is a specialist immigration barrister at Mansfield Chambers in London. She also practices in family law and has a particular interest in cross-over issues within the two areas of law. Prior to joining the Bar, Sarah worked for 6 years in the not-for-profit sector as a specialist immigration caseworker.

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