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New statement of changes to the Immigration Rules: HC309

New statement of changes to the Immigration Rules: HC309

A Statement of Changes in Immigration Rules HC309 was laid yesterday, 7 December 2017. This note does not aim at detailing all the changes, instead just highlighting the most significant ones. Except where otherwise indicated, these changes will come into force on 11 January 2018, although applications made before 11 January 2018 will be decided in accordance with the Immigration Rules in force on 10 January 2018.

General grounds for refusal

The “exceptional circumstances” aspect of the general grounds for refusal in Part 9, Appendix Armed Forces, Appendix FM and Appendix V is removed. In particular, the following paragraph is deleted

Where this paragraph applies, unless refusal would be contrary to the Human Rights Convention or the Convention and Protocol Relating to the Status of Refugees, it will only be in exceptional circumstances that the public interest in maintaining refusal will be outweighed by compelling factors.

The explanatory memorandum explains this change as follows

it was not the intention to create a separate public interest test to the now well established public interest test that must be taken into account in the assessment of human rights claims.

I assume this “well established public interest test” refers to section 117 of the Immigration Act 2014.

In addition, a ten-year ban on re-entry is introduced for those who used deception in an application for “leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application”. It used to be that a ten-year ban was imposed on those who used deception in an application for entry clearance only. Family members applying under Appendix FM of the Immigration Rules are still not subject to this ban.

Absences for PBS dependants

This might be one of the changes with the most profound impact. It used to be the case that while PBS migrants had to have been out of the UK for fewer than 180 days in any given 12 months during the qualifying period for Indefinite Leave to Remain, dependants did not have to meet this requirement. As a result, PBS migrants, in particular Tier 1 (investors) and (entrepreneur), have historically ensured that the main applicant in the application was the one who didn’t need to travel that much, while the “real” businessperson was a dependant, allowing them to travel extensively, usually for business, and still be eligible for Indefinite Leave to Remain.

The 180-day absence criterion is now extended to partners of PBS migrants as well, so that the strategy above will no longer work. This will be apply to those granted leave following an application made after 11 January 2018.

Electronic entry clearance

Entry clearance may now be issued electronically. This scheme will be trialed with specific groups (not yet announced) to start with, with a view to general introduction later. Applicants who hold an entry clearance issued in electronic form will not need to present it to an Immigration Officer, who will instead be able to check it electronically. They will only need to present their passport or identity documents. These changes will take effect on 11 January 2018 but we do not yet know who will be the first groups to have entry clearance issued electronically.

Visitors

To date, those visitors who held a standard or marriage/civil partnership visit visa would have needed to obtain a separate transit visa if they want to transit the UK. From 11 January 2018, they will be allowed to transit the UK without the need to obtain a separate transit visa.

Appendix 3 is also being changed to clarify that visitors are not permitted to study at an academy or a school maintained by a Local Authority.

Immigration bail

This is the one change which does not have a commencement date. The government simply proposes to commence Schedule 10 to the Immigration Act 2016 “as soon as possible”.

Schedule 10 introduces a new concept of immigration bail and transfers those on temporary admission or release onto that new status. Members are referred to the relevant portion of our training course for more details but, in summary, temporary admission and temporary release will no longer exist, and will be replaced by “bail” instead. Once the changes come into force, those who have no prospects of being removed and therefore cannot be detained may still be put on bail.

Tier 1 (Exceptional Talent)

The changes fulfil the commitments made in the recent Budget to:

  • double the number of Tier 1 (Exceptional Talent) visas from 1,000 to 2,000. Applicants must be endorsed by a Designated Competent Body (DCB), but the additional 1,000 places will not be allocated between the DCBs. They will instead form a pool of unallocated places which will be drawn on according to need on a first-come first-served basis.
  • allow exceptional talent visa holders (but not exceptional promise visa holders) to qualify for ILR after three years,
  • simplify the application for holders of certain peer-reviewed fellowships or senior academic positions.

Is the last a response to those accusing the Home Office of putting the UK’s global reputation for higher education and research at risk?

Tier 1 (Entrepreneur)

The requirements for Tier 1 (Entrepreneur) have been re-written “to make them clearer and easier to follow”. The requirements themselves are “unchanged”, but for 14 separately listed changes (!). These changes include:

  • clarification on the job creation rules,
  • clarification on certain documentary evidence to be provided
  • investments from venture capital firms (which will now need to provide a letter);
  • applicants will no longer be able to rely on investments and funds already relied on by another Tier 1 (Entrepreneur) or that migrant’s business or close family member. These investments and funds can no longer be relied on to “prevent recycling of funds between applicants”.
  • clarifications to the evidential requirements for those switching from Tier 1 (General) to Tier 1 (Entrepreneur) category

Those advising on Tier 1 (Entrepreneur) applications would be well advised to review the changes in detail.

Tier 2

This category is also seeing a number of changes, but the most significant ones are:

  • applicants switching from Tier 4 to Tier 2 (General) will be able to apply as soon as they have completed their courses, rather than only after having received their final results
  • The introducing of further exemptions to the Resident Labour Market Test for posts held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and established research team members sponsored by a Higher Education Institution or a Research Council – is this again a response to the critics about the Home Office harming academic research?
  • perhaps more significantly, paragraph 245AAA(b) is deleted. This paragraph read:

the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor.

It meant that those who had a break of more than 60 days between one employment and the other could not apply for Indefinite Leave to Remain after five years. One could instead apply to renew their leave, but the maximum period of leave under Tier 2 (General) is capped at a maximum of six years. In other words, applicants who had a break of more than 60 days between one employment and the other had to leave the UK after six years, and were never given a chance to apply for Indefinite Leave to Remain. This change is great news for these applicants.

Students

The changes will allow some part-time students to secure Tier 4 visas. Tier 4 part-time students will not have work rights, will not be able to bring dependants and will not be able to extend in-country.

Part 3 of the Rules is amended so that the minimum age for those coming for short term study is 16 instead of 18.

Other changes

  • The wording on relationships for family members of PBS migrants and migrants in other work categories set out in Part 5 of the Rules is changed from being in a “subsisting relationship” to being in a “genuine and subsisting relationship”, bringing the wording in line with those applying under Appendix FM.
  • The minimum age for overseas domestic workers is raised from 18 to 19. Measures are also introduced to prevent overseas diplomats bringing extended family members to the UK in the guise of domestic workers.
  • The annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.

More details about the changes can be found in the accompanying explanatory note.

This post may be updated as and when we discover new changes, and readers should feel free to comment below if we have missed anything important.

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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