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New Statement of Changes – sigh…

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Yes another Statement of Changes – HC 565 –  has been laid and (hold your breath), most of it comes into force… today!  I am grateful to Alison Harvey at ILPA, whose hard-work is truly immeasurable:  an e-mail was sent out at 11pm last night alerting members to this following another member (and not the UKBA) bringing it to her attention. We seem to have a repeat achievement from the 19th July Statement of Changes which came into force the day after:  I checked the UKBA website this morning and this current Statement was only laid yesterday… Sigh…  (again)

Needless to say that we haven’t managed to go through the whole statement yet but for the moment, it seems to be largely about “clarifying” previous errors/lacuna/bad drafting and incorporating more lists.

At a glimpse, the major features are as follows:

  • Family members:  In the words of the Explanatory Note, the Statement “clarifies the drafting of some aspects” of Appendix FM and FM-SE (the evidential requirements applicable to Appendix FM for the new family member rules) and more importantly incorporates provisions in Part 8 of the Rules (the old family member rules) to allow applications, where relevant, to be considered under Appendix FM.  For example, if the application for ILR under Part 8 was to fail.  The benefit of this (as far as I can see) is that the exception EX1 from Appendix FM can then be applied (see here for a bit more detail on EX1).

  • Long Residence and Private Life:  clarifies the drafting of 276A-276BE as they deal with applications for leave to remain on the basis of private life and makes additional transitional provisions in relation to Part 7 of the Rules.

  • Tier 4 (General) Students:  The mandatory information that Sponsors/colleges must provide on a CAS has been incorporated into the Rules.

  • Family members of PBS migrants:  Clarification that transitional arrangements apply so application made prior to 9th July are not subject to the new changes and incorporates changes relevant to partners of PBS migrants who have since qualified for settlement.

There are plenty more changes relevant to the visitor categories, where, for example, the list of approved accreditation and inspection bodies for institutions where child and student visitors can study has been incorporated and the lists of permissible activities that business, sports and entertainer visitors can under/partake in have also been amended.

As mentioned above, most of the changes are in force as of today.  The rest comes into force on 1st October but this only seemingly concerns the ‘Exceptional Talent’ category of PBS Tier 1 and an amendment to the list of ‘low-risk countries’ for Tier 4.

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Sarah Pinder

Sarah Pinder

Sarah is a specialist immigration barrister at Goldsmith 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.
View All Posts By Sarah Pinder

Comments

6 Responses

  1. The rules are now a utter mess (as if they weren’t before). Quite apart from preserving ‘the integrity of the Immigration Rules’ as was said in the explanatory memorandum to the post-Alvi changes, the changes, especially this year, have served to render them completely without integrity. Indeed the incorporation into the rules of the required details in the electronic CAS now leaves yet more appellants potentially unable to succeed under the rules due to a matter entirely outside their control.

    By seeking to rigidly perscribe every aspect of an application down to the most inconsequential details the government is basically forcing a reliance on an HR breach or fairness, since the statutory ground of not in accordance with the immigration rules is increasingly useless.

    Not to mention the difficulty of actually being able to clearly submit on the immigration rules and their provisions at the tribunal with the morass of drafting errors, transitional provisions and caveats.

    I think if the public actually understood the costs involved in this policy approach there would be a scandal. UKBA appear to be hell-bent on destroying any aspect of sensible discretion. Whilst this might enable them to cut staffing costs and not bother with appeals it simply transfers the bill of sorting this on to the ministry of justice and ultimately the tax payer. More complex rules do not equal a good use of tax payers money in any sense or any kind of solution to whatever they perceive the ‘problem’ to be.

    Indeed the recent judgement of the UT in Ferrier is pretty revealing about the utility of complex inconsistent rules:

    “Applying Philipson (ILR – not PBS: evidence) [2012] UKUT 00039 (IAC), where the provisions in question are ambiguous or obscure, then it is legitimate to interpret the provisions by assuming that Parliament is unlikely to have sanctioned rules which (a) treat a limited class of persons unfairly; and (b) disclose no policy reason for that unfairness.”

    This is actually a news story, but probably one the media won’t report.

  2. Couldn’t agree more. I also hear that the consolidated version of the Rules might not have been amended properly following Wednesday’s Statement of Changes leading to yet more mistakes… so a word of caution when accessing the Rules on the website.

  3. Good grief. It makes a nonsense of giving advice as well, when these changes come so regularly, and with so little notice.

    One particular change this time is that the transitional provisions for family migrants now only seem to apply to those whose leave under the old system is “extant” (see A280(c)(ii)). Previously a (for instance) spouse visa holder under the old rules who had overstayed would still have qualified for ILR. Now the same person has no grounds under the Rules (or, on the face of it, Art 8) for an in-country application.

  5. Why isn’t all this in the media? I know parliament has been in recess, but things can’t stay this way, surely? The new Rules remove all humanity in the consideration of cases and their state of apparent flux over details, yes, is uttely without integrity.

  6. The unpublished UKBA internal policy directive issued to the case workers instructs;- ‘believe nothing, refuse everything and give any reasons’. As many practitioners may have noticed that straight forward cases that would otherwise have been allowed are now being routinely refused by the dozen on account of the draconian Statement of Changes HC 565 thereby quadrupling the backlog and suffocating judicial time by inevitable appeals. Wonder if the IJs would be receptive to the rationality and the reasonableness of these new rules?