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New statement of changes to the Immigration Rules: HC 1919

New statement of changes to the Immigration Rules: HC 1919

A new statement of changes to the Immigration Rules was published today, 7 March 2019. It is 294 pages long and covers a lot of ground. The main changes are to Tier 1 entrepreneur and investment visas, and to the EU Settlement Scheme.

This requires, inevitably, a new appendix to the Rules. Appendix W (for “workers”) now contains the stipulations for two new visa types — start-up and innovator — but will eventually swallow up all work-related visas. This seems to spell the end of the terminology of the “Points Based System”, with the introduction to Appendix W stating:

It is anticipated that other categories for workers will be added to this Appendix as the immigration system is reformed over time.

What follows is a brief(ish) look at what the statement of changes contains. We will provide separate commentary next week on particular aspects of the changes.

Most of the changes take effect on or around the default date of Brexit, 29 March 2019, or a week later on 6 April. A few kick in during the summer.

Appendix W and Tier 1 of the Points Based System

Both the Tier 1 (Graduate Entrepreneur) and the Tier 1 (Entrepreneur) route will be scrapped, and replaced by “start-up” and “innovator” routes.

For both routes, applicants will need to:

  • be endorsed by trusted organisations in the UK, “such as business accelerators, seed competitions and government agencies, as well as higher education providers”
  • stay in contact with those endorsing bodies regularly
  • show that they speak English at level B2 (higher than the current required level B1)
  • that their business plans are “credible” (they may be called for interviews to test this)
  • and that they have held £945 in their account for 90 days prior to the application (although these funds can now also be provided by the endorsing bodies).

They will be allowed to come with, or by joined by, their dependants, with rules similar to those currently applicable to Point Based System migrants. 

Start-up visa

The Graduate Entrepreneur route will be closed to new applicants as of 6 July 2019.

Tier 1 (Graduate Entrepreneur) applications can therefore continue to be made until 5 July 2019.

The explanatory notes say that the main features of its replacement are as follows:

The Start-up category is an expanded version of the Tier 1 (Graduate Entrepreneur) category. It is for those starting a new business for the first time in the UK. Applicants will not need to be graduates and will not need to have secured any initial funding. Successful applicants will be granted 2 years’ leave (doubled from 1 year) and will be able to progress into the Innovator category to continue developing their businesses in the UK after that time.

Part W5 of the new Appendix W contains the specific requirements for a start-up visa, including who can endorse applicants for one, their monitoring responsibilities and the form of an endorsement letter. The letter must contain specified information and speak to the business’s “innovation, viability and scalability”. In addition, although someone on a start-up visa is not limited to work for their business only, the endorsement body letter must confirm that the endorsing body is “reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures”. 

A start-up visa “does not lead directly to settlement in the UK”, although the person can switch onto an innovator visa. There are transitional arrangements for those already here on Tier 1 (Graduate Entrepreneur) visas to switch onto the new system.

Innovator visa

Tier 1 (Entrepreneur) is also dead — this time from 29 March 2019. The immigration minister says that the route “has a long tail of low quality projects which contribute little or nothing to the wider UK economy”.

In place of the entrepreneur comes the innovator:

The Innovator category is intended for more experienced businesspeople. As well as an endorsement, applicants will need £50,000 to invest in their business from any legitimate source (reduced from £200,000 for most applicants in the current Tier 1 (Entrepreneur) category). The funding requirement will be waived for those switching from the Start-up category who have made significant achievements against their business plans. The category may lead to settlement in the UK.

Again, the new Appendix W gives the details, this time in Part 6. The three main endorsement criteria are, like for start-up visas, innovation, viability and scalability, although an applicant is expected to show that they already have the necessary skills (start-ups can show that they are “developing” them; and that there is potential for growth into national and international markets (rather than national only for start-ups). The endorser must also be “reasonably satisfied that the applicant will spend their entire working time in the UK on developing business ventures”; i.e. innovators cannot work other than for their business.

There is not yet a set list of organisations that can endorse someone for an innovator visa, although endorsing bodies must be able to satisfy the criteria in Part W6.8.

Innovators will be eligible to apply for indefinite leave to remain after 3 years continuous residence in the UK as innovators, provided they satisfy at least two of a list of criteria relating to how much money they invested, how much the business grew and/or how many jobs they created.

Extension applications for Tier 1 (Entrepreneur) migrants will remain open until 5 April 2023, and settlement applications until 5 April 2025. Successful Tier 1 (Entrepreneur) migrants applying for an extension from abroad will be granted 2 years and 4 months leave (as opposed to the current 2 years).

Investor visa

There are significant changes to the Tier 1 (Investor) route from 29 March 2019.

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These include lengthening the period for which funds must be held prior to applying from 90 days to two years. The requirement to open a UK bank account before applying for an investor visa “is being tightened to make explicit that the bank must carry out all required due diligence checks and Know Your Customer enquiries, and confirm that these have been done”.

Applicants will no longer be able to simply buy up UK national debt to qualify as an investor. Purchase of UK government bonds is being excluded as a qualifying investment.

There will be tighter rules on routing investment funds via “intermediary vehicles”, including a requirement that such vehicles be regulated by the Driver and Vehicle Licensing Agency Financial Conduct Authority. The definition of “active and trading” companies is also being tightened so that they:

(i) are registered with Companies House in the UK;
(ii) are registered with HM Revenue and Customs for corporation tax and PAYE;
(iii) have accounts and a UK business bank account, both showing regular trading of its own goods or services;
(iv) have at least two UK-based employees who are not its directors.

Transitional arrangements for current investor visa holders will be in place until 5 April 2023 for extension applications and 5 April 2025 for settlement applications. Successful Tier 1 (Investor) migrants applying for an extension from abroad will be granted 2 years and 4 months leave.

EU Settlement Scheme

There are also a raft of changes to Appendix EU (most of which take effect at 7am on 30 March 2019!), which contains the detailed rules on settled status for EU citizens.

Much of this is putting in the plumbing: the architectural drawings have been out for some time, notably in the shape of a June 2018 statement of intent. With the scheme due to move beyond the “pilot” phase from 30 March, these provisions make sure that the rules allow for various political promises to be kept.

Significant points to highlight are:

  • It will be possible to apply under the scheme from outside the UK.
  • Non-EEA citizens will be able to apply for an “EU Settlement Scheme Family Permit” to join or accompany an EEA citizen who was been granted leave under the settlement scheme. Those Family Permits will be valid for six months. 
  • Applications made under Appendix EU will be free of charge. (This will be implemented by secondary legislation.)
  • Citizens of Norway, Iceland, Liechtenstein and Switzerland, and their family members, will be able to apply under the Settlement Scheme 
  • Zambrano carers and other non-EU citizens with “derivative” rights of residence in the UK will be able to apply for settled status. As well as Zambrano cases, “Chen carers”(the primary carer of a self-sufficient EEA citizen child) and “Ibrahim and Teixeira” cases (a child of a former EEA citizen worker who is in education in the UK and their primary carer) are covered. Their applications will have to be made on a paper application form, however.
  • Everyone else must go digital, unless a paper application is “approved on an individual basis in light of the exceptional circumstances of the case”. These exceptional circumstances are still undefined for now, it appears, but will appear on gov.uk at some stage.
  • The date by which EEA nationals must have been continuously resident in the UK, and certain family relationships will need to have been formed, will be 31 December 2020 if the UK leaves with a deal, or 29 March 2019 if the UK leaves without a deal
  • Those living on the Isle of Man or Channel Islands can get settled status too.
  • EU citizens who have been working for the UK government or armed forces abroad (“Crown service”) can count this towards their residency for settled status.
  • It will be possible to submit national ID cards as identity documents for EEA nationals, and biometric residence cards for non-EEA family members
  • “There will also be scope for the Secretary of State to accept alternative evidence of identity and nationality where the applicant is unable to provide the required document due to circumstances beyond their control, or due to compelling practical or compassionate reasons.”
  • Administrative reviews can now be made from outside the UK.
  • Some of the general grounds for refusal found at part 9 of the Immigration Rules will apply to applications under the EU Settlement Scheme if the UK leaves without a deal

Tier 2 salary levels

When the Home Office last increased the minimum salary necessary to get a Tier 2 work visa, it exempted certain professions: “nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin”. This exemption was due to expire in July 2019 but has now been extended. It’s not immediately obvious from the notes or full text when the extension is until — possibly indefinitely.

The Codes of Practice at Appendix J of the Rules have been amended, resulting in an increase in the minimum salary sponsors will need to pay applicants for many SOC codes.

There is also a technical change to the salary bands that inform the monthly quota of Tier 2 (General) visas. Nichola has written a good explanation of this rather dense subject before: essentially, visa applications get a higher priority in the quota allocation the higher the salary, but the points only increase every £5,000. This means that when the quota is oversubscribed, a whole batch of applications that are on all the same points are rejected en masse, as there is no fair way of being able to decide which to approve and which not to. So:

To address this issue, the Government has removed the bands and instead awarded one point for each £1,000 of gross annual salary. The effect of this change will mean more applications could be awarded within a monthly allocation, reducing potential refusals.

Students on Tier 4 leave who are eligible to switch to Tier 2 can apply up to three months before the expected completion date of their course (rather than only after they completed the course).

Tier 2 migrants applying for indefinite leave to remain will need to earn a minimum salary of £38,800 if the date of application is on or after 6 April 2023, and £40,100 if the date of application is on or after 6 April 2024.

Statelessness

There is some good news, but also some very bad news, for the stateless.

In future there will be an initial grant of five years leave if they succeed in applying to stay in the UK for lack of any other nationality (up from 30 months today). But applicants now have to show that they cannot acquire another nationality in order to succeed. Paragraph 403 of the Rules now includes a requirement that an applicant for leave to remain as a stateless person:

(c) has taken reasonable steps to facilitate admission to their country of former habitual residence or any other country but has been unable to secure the right of admission.

and

(e) has sought and failed to obtain or re-establish their nationality with the
appropriate authorities of the relevant country; and

(f) if, in the case of a child born in the UK, has provided evidence that they have attempted to register their birth with the relevant authorities but have been refused.”

This mangles the meaning of “stateless” — and it is very hard to prove a negative.

The immigration minister describes these as “minor changes” designed to “protect the integrity of this route and deter abusive applications”.

Afghan family members

There is a scheme for Afghan citizens who worked with UK forces in the Afghanistan war to relocate to Britain. Their family members, however, had to relocate at the same time or stay behind. The Rules are now being changed to allow “pre-existing dependents, who would otherwise qualify for relocation, to travel to the UK after the LES [locally engaged staff] has already relocated”.

These changes are commendable in themselves, as well as in the attention to detail in correcting past spelling mistakes:

In paragraph 276BP1, for “dependant” substitute “dependent”.

Other changes

Other changes brought about by the Statement of Changes include

  • The time limits for study at degree level or above does not include time spent studying below the age of 18. 
  • Some changes to the evidential requirements for Tier 1 (Exceptional Talent) applications
  • The Jamaican Nursing Exchange scheme is added to the list of approved Government Authorised Exchange schemes
  • Tier 5 (Youth Mobility Scheme) applicants from Hong Kong will no longer need to obtain a certificate of sponsorship before they apply
  • The list of countries in Appendix H, for which there are lower documentary requirements for Tier 4 student visas, is updated to add Brazil, Kazakhstan, Mauritius, Oman, Peru and Tunisia; and to remove Argentina, the Maldives and Trinidad and Tobago. The minister says that “this will result in approximately 4,500 additional students being able to benefit from Appendix H”.

This article was originally published on 7 March and has been updated. Some of the original material, written by CJ McKinney and Colin Yeo, remains.

Nath Gbikpi

Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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