New Statement of Changes alert! With the end of EU free movement nearly here and the visitor route likely to see greater use in future, changes to the route have (in the nick of time) now been announced. A new Appendix V will replace the existing version, with a key focus on a consolidated and simplified set of visitor rules, in line with the Law Commission’s Simplification of the Immigration Rules project.
As with any type of change, trying to simplify the Rules can — inadvertently or not — have an impact on the substance of the rules as well. In this article we take a look at some of the substantive changes to the visitor route, which take effect from 9 am on 1 December 2020.
Goodbye to Appendix 1
The detailed rules for the visitor route are set out in Appendix V to the Immigration Rules. This currently contains a definitions section: Appendix 1 to Appendix V. Those visitor-specific definitions are being removed and the Interpretation section at Paragraph 6 of the Immigration Rules will now apply instead.
This will change how certain terms are defined as there is some inconsistency when comparing Appendix 1 to Paragraph 6. For example, currently there are two definitions of a “parent”, one in Paragraph 6 and one in Appendix 1 to Appendix V. Paragraph 6 includes “a genuine transfer of parental responsibility on the ground of the original parent(s)’ inability to care for the child” in cases where the child was born in the UK, whereas Appendix V does not.
Similarly, the definition of “deception” is currently inconsistent between Paragraph 6 and Appendix 1. Interestingly, though, the new-look Paragraph 6 appears to have removed the definition of “deception” completely. This leaves potentially concerning room for interpretation by caseworkers, who have a new power to refuse applications where they “can prove that it is more likely than not the applicant used deception in the application” (more on this below).
Travel documents vs ID documents
Currently, one of the validity requirements for a visitor application is for the applicant to provide a travel document. This means being in possession of a “valid passport or other document that allows the holder to travel internationally”. The requirement for a travel document is instead being replaced with a requirement for an applicant to provide a “passport or other document which satisfactorily establishes their identity and nationality”.
This may allow for more flexibility in terms of the documents needed to visit the UK. On the other hand, it may have the opposite effect of giving more discretion to decision-makers to refuse entry to those who may in fact hold a travel document which allows international travel, but for which the UK does not itself consider sufficient to establish identity and nationality. For example, certain national identity cards may be considered more secure than others.
Suitability requirements: cut down but toughened up
Part V3 of the existing visitor rules contains lengthy paragraphs of “suitability requirements”. These set out the reasons why visitor applications may be refused due to, for example, adverse immigration history or criminal convictions. All this is to be replaced with a one-line reference to suitability:
The applicant must not fall for refusal under Part 9: grounds for refusal.
At first glance, this appears to be a welcome step and includes some positive changes. For example, failing to provide required information, attend an interview, provide biometrics, undergo a medical examination or provide a medical report on request are now discretionary grounds for refusal rather than mandatory grounds.
There is also some added flexibility on overstaying. Currently, an overstay of more than 30 days will result in a re-entry ban of at least 12 months. Under the new Part 9, any period of overstaying between 24 January and 31 August 2020 will be disregarded for the purpose of the re-entry ban or reference to breaches of immigration laws. This is a coronavirus concession, recognising the impact of Covid-19 on those unable to leave the UK in time. However, the new provisions do not appear to take into account those provided with coronavirus-related “exceptional assurance” from 1 September to 31 October 2020.
Some suitability provisions have been made more stringent, though, particularly the criminality thresholds.
Significantly, visit visa applicants, or those seeking entry as a visitor on arrival, must now be refused if convicted of a criminal offence in any country within the last 12 months, even if they received a non-custodial sentence or out-of-court disposal. Seemingly minor offences recorded on a person’s criminal record can therefore now lead to a 12-month entry ban. This is an intentional move to make it difficult for those with a criminal record to visit the UK.
Applications must also be refused where the person has been convicted of a criminal offence for which they have received a custodial sentence of at least 12 months, irrespective of when this occurred, in which country or any compelling circumstances (such as age, the nature of the offence, or the exceptional nature of the visit; for example, to attend the funeral of a close family member). Currently the Rules provide a mandatory ground for refusal which takes into account both the length of sentence and the time which has passed since the end of the sentence. The amended Part 9 therefore signals a significant change in approach on criminality.
On top of that, applications must also now be refused where the person has committed a criminal offence and is either considered to be a persistent offender who shows a particular disregard for the law or has committed a criminal offence which caused serious harm. This is currently a discretionary ground for refusal — “may” rather than “must” be refused — allowing the person to explain the nature of the offences, which can be particularly important for politically motivated offences in certain countries which would not constitute crimes in the UK.
Some additional grounds for refusal have also been added to Part 9 which will impact those wishing to enter as visitors. Permission to enter as a visitor may be refused where the decision-maker considers a customs breach has been committed (for example, by carrying a prohibited item), whether or not a criminal prosecution is pursued. Applications may also be refused where the decision-maker considers the applicant has been involved in a sham marriage or civil partnership.
The provisions on deception are also changing. The current position is that permission as a visitor must be refused where:
(a) false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge); or
(b) material facts have not been disclosed, in relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application.
In the new Part 9, applications may now be refused for these reasons but must be refused where the decision-maker “can prove that it is more likely than not the applicant used deception in the application”. As deception would involve an intention to deceive, it will be important to review the approach taken on this point, and how deception will be clearly distinguished from a genuine oversight or inadvertent error in the application, or false information or documents being provided without the applicant’s knowledge.
Permitted versus prohibited activities
There is a list of activities that are permitted for people on a visit visa, currently in Appendix 3 to Appendix V. In the new rules, the list comes under the heading Appendix Visitor: Permitted Activities. Whilst there do not appear to be any major changes to the permitted activities as a visitor, a few points stand out.
There is to be more flexibility for people to visit the UK for study. It will now be permissible for study to be the main purpose of the visit. In addition, the provisions allowing people to visit for up to 30 days for a short course at an accredited institution are being extended, permitting study as a visitor for a longer period of up to six months.
People aged 16 or over who are enrolled on a course of study overseas may also now visit the UK to undertake research or have “research tuition” at a UK institution for up to six months. Their research or research tuition must be relevant to their course of study overseas.
Full guide to visit visa applications, appeals and judicial reviews for family and general visits to the UK, including how to prepare and what to expect on the day.View Now
Academics can currently apply to visit the UK for up to 12 months. However, only certain academics in the UK can extend their permission to a total of 12 months, namely those on sabbatical leave in the UK undertaking their own research. The scope for an extension will be widened to include academic visitors taking part in formal exchange arrangements or who are eminent senior doctors or dentists taking part in research, teaching or clinical practice.
Volunteering for up to 30 days can now be the main purpose of a visit and will no longer be required to be incidental to the visit. The reasoning provided for this is that “incidental” is ambiguous and can be interpreted in different ways, even though the Rules expressly state it is meant to mean that volunteering is not the main purpose of the visit. Could this justification perhaps be useful in efforts to remove other ambiguous provisions of the Immigration Rules?
The revised visit provisions also clarify that drivers on an international route collecting goods or passengers will fall within the visitor provisions. Currently this only applies to those delivering goods or passengers from abroad to the UK.
Finally, the “prospective entrepreneur” provision has been specifically removed. This allows visitors who can show support from an endorsing body under the Start-up or Innovator routes to enter the UK for “discussions to secure funding” to set up a business here. Arguably this was unnecessary duplication as such visitors can enter the UK anyway to attend meetings or to negotiate and sign deals and contracts.
New Appendix Finance
Visit visa applicants are required to show they have sufficient funds to cover all reasonable costs of the visit. From December 2020, any funds relied upon for the application must be held in permitted institutions under the new Appendix Finance. This Appendix excludes reliance on funds in financial institutions where satisfactory verification checks cannot be made, where the institution is not appropriately regulated or where the institution does not use electronic record keeping.
These amended Rules are an important signal of what is to come. Attempts to consolidate the Rules and allow for more consistency and unnecessary repetition are welcome, although simplification has clearly not been the only focus here.
Flexibility has been introduced in some areas, including for those wishing to study in the UK for up to six months, and we hope to see further measures introduced to reflect the flexible and non-traditional work arrangements under which individuals may now operate whilst in the UK as a visitor, particularly post-Covid-19. The unexpected changes to certain suitability provisions indicate that an adverse immigration or criminal history is to have increased weight in determining whether visitors should be denied permission to enter the UK in the future.