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Statement of Changes in Immigration Rules HC 297

Statement of Changes in Immigration Rules HC 297 was published today, 13 July 2015, having been trailed in The Daily Mail over the weekend. It includes some significant changes, particularly for international students. I’m technically on holiday, so I’ve elected to do some heavy cutting and pasting from the ministerial announcement by James Broken-shire and the Explanatory Notes to the Statement of Changes itself (found at the end of the document).

I’ve started with Tier 4 first as these are the most significant changes, and I’ve then followed the scheme of the Explanatory Notes.

Tier 4 international students

Firstly, the ministerial announcement is quite explicit that the changes to Tier 4 are intended to reduce the numbers of foreign students in order to reduce net migration before going on to summarise the changes:

These new rules make a number of changes to the Tier 4 route of the Points-Based System to reduce net migration and to tackle immigration abuse, whilst ensuring we maintain an excellent offer for students who wish to study at our world-class universities.

New students at publicly funded colleges will be prevented from being able to work in the UK, in order to bring their working rights in line with those of international students at private colleges. In the autumn, college students will be unable to switch to a work visa or extend their study visa whilst they are in the UK, whilst protecting students at embedded colleges who will progress onto study at a higher education institution.

The rules around academic progression are being tightened so that university students are only permitted to extend their studies at the same academic level if the course they wish to study is linked to their previous course, or the university confirms the course supports the student’s career aspirations. To help ensure international students are progressing academically the time limit on further education study will be reduced from three years to two years in the autumn.

The maintenance requirement for Tier 4 students is increasing, along with the maximum amount paid for accommodation which can be offset against the maintenance requirement, to bring them in line with 2015 rates. A rule around established presence which allowed students applying to extend their leave within the UK to show only two months’ maintenance is being removed.

The application of the rules on time limits is being clarified so that the time a student has already spent studying in the UK is calculated using the full length of the leave they have previously been granted.

Changes are being made to allow a Tier 4 visa to be issued in line with a student’s intended date of travel. This change to the date from which entry clearance can commence will help ensure a smooth roll-out of Biometric Residence Permits for overseas Tier 4 applicants.

Tier 4 migrants’ conditions of study are being changed, to prevent them from studying at academies or schools maintained by a local authority. Those who wish to study a foundation course to prepare for entry to higher education are also being prevented from doing so under the Tier 4 (Child) route.

Where responsibilities of sponsor organisations and terminology have recently changed, the rules are being updated.

The Explanatory Notes go into a bit more detail:

Entry clearance start dates

7.13. When they are granted entry clearance, migrants are issued with a temporary vignette lasting 30 days. During this period, they must enter the UK and collect their Biometric Residence Permit. A change is being made to the Immigration Rules for Tier 4 Migrants to allow entry clearance to be granted from either one month before the course starts, or seven days before the intended date of travel, whichever is later. This is to ensure that students wishing to travel to the UK close to or after their course start date can do so.

7.14. This change will take effect on 14 July, and will apply to all applications for entry clearance or leave to enter as a Tier 4 Migrant already made but not yet decided before that date. The 21-day rule is not being followed in this case to avoid a large number of migrants being disadvantaged by the current rule.

 

Maintenance Requirements

7.15. All Tier 4 students are required to show they hold adequate funds to pay their course fees and support themselves while they are in the UK. The following changes are being made to update these requirements, and ensure they accord with the Government’s approach to English students:

  • The maintenance requirement for Tier 4 (General) students to cover living costs is set at the same level as the combined maximum maintenance loan and grant available to English students living away from home. The Immigration Rules are being amended to reflect the new rates for students starting courses from September 2015.
  • The Tier 4 (Child) rates for 16 and 17 year olds living independently are also being raised to the same level.
  • The ‘established presence’ provision is being removed, so that all students must show they have sufficient funds to support themselves throughout the duration of their remaining study, or for up to nine months. This is to ensure that all migrants can demonstrate they can maintain and accommodate themselves for the full duration of their course, or up to nine months, whichever is shorter.
  • The area in which Tier 4 students have to demonstrate a higher level of funds is being expanded to include the University of London or institutions wholly or partly within the area comprising the City of London and the Former Metropolitan Police District. This is to bring the definition into line with that used in the Education (Student Support) Regulation 2011 to determine the rates of support for English students.
  • The maximum amount already paid for accommodation which can be offset against the maintenance requirements is also being increased in line with these changes.
  • The requirements for Tier 4 dependants are being increased in line with the increases for main applicants.
  • The maintenance requirements for Tier 4 (Child) students have been increased in line with inflation.

Time Limits

7.16. A change is being made to reduce the length of time a Tier 4 (General) Student may spend studying further education courses (courses at National Qualifications Framework levels 3-5 and equivalents) from three years to two. This brings the maximum length of time a Tier 4 (General) Student may spend on such courses into line with the length of time spent by most British students on such courses.

7.17. The rule which specifies that the periods of leave granted before and after a course are disregarded for the purposes of calculating whether a migrant has exceeded the limits on Tier 4 study is being amended to enable this additional time to be taken into account.

 

Removing work rights of students at publicly-funded further education colleges

7.18. This change will remove work rights from new students applying to study at publicly-funded further education colleges. Changes to work entitlements in 2011 recognised that non-compliance was lower among public further education college students than those at private colleges. Students at public further education colleges kept limited work rights (10 hours a week, and full-time outside term-time), while those at private colleges were prevented from working at all. Patterns of non- compliance in the student migration system have now changed, and there is an emerging trend of immigration abuse amongst publicly funded college students. This change will reduce the attractiveness of these provisions to those intending to abuse the immigration system by working rather than studying.

 

Preventing college students from extending their Tier 4 (General) visa or switching to other points-based routes

7.19. Tier 4 (General) Students at colleges are being prevented from extending their stay in Tier 4 or switching into any other points-based route, unless they are studying at a college recognised by the Home Office as an embedded college offering pathway programmes designed to prepare students for entry to a higher education course. This change is designed to encourage college students to leave the UK at the end of their course, in order to reduce net migration. Students at other colleges, who wish to go on to study in a UK university, may do so by applying for leave to enter from outside the UK.

 

Academic progression

7.20. The rules relating to academic progression are being clarified to make clear that students who wish to extend their Tier 4 (General) leave must be moving up a level on the National Qualifications Framework, unless their new course is related to their previous Tier 4 study, or the previous course and new course in combination support the applicant’s genuine career aspirations. This is to ensure that Tier 4 sponsors are applying the exception to the academic progression requirement consistently, and that students cannot repeatedly extend their leave to study unrelated courses solely into prolong their stay in the UK. Applicants applying to complete a PhD or other doctoral qualification may continue to study at the same level.

 

Changes affecting Tier 4 (Child) students

7.21. Tier 4 is not intended to be used by Academies or schools maintained by a local authority. The existing Tier 4 Guidance for Sponsors, which sets out the framework for sponsoring students under Tier 4, makes this clear by preventing such schools from applying for a Tier 4 licence. The Immigration Rules are being amended to reflect this position, by allowing Tier 4 (Child) Students to be sponsored by Independent Schools only (which does not include Academies), and to prevent Tier 4 Migrants from studying at Academies or schools maintained by a local authority.

7.22. In addition, the rules are being changed to make it clear that the Tier 4 (Child) route is intended for use by children attending Independent Schools, and not by those aged 16 or 17 coming to the UK for further education courses designed to prepare them for entry to higher education, such as degree pathway programmes. Applicants for such courses should use Tier 4 (General).

7.23. In addition, the rules are being changed to prevent new Tier 4 (Child) Students switching into Tier 2 (General), Tier 2 (MoR), Tier 2 (Sportsperson) and Tier 1 (Graduate Entrepreneur).

Returning residents

From the Explanatory Notes:

7.3. We are amending paragraph 19A, to include the spouse, civil partner, unmarried partner or same-sex partner of a Home Office employee. This will ensure that when a Home Office employee is serving overseas, their spouse, civil partner, unmarried partner or same-sex partner will be able to accompany them and not lose their settled status after a 2 year absence. An equivalent provision already applies to partners of British diplomats or of employees of the Department for International Development or the British Council.

Administrative Review

From the Explanatory Notes:

7.5. Some people in relation to whom an eligible in-country decision has been made prefer to make a fresh application for leave to remain rather than proceed with an application for administrative review where they recognise that their original application was correctly decided. At present they are unable to make a fresh application for 14 days if their original application was made in time and their leave expired while the application was under consideration, because section 3C(1) of the 1971 Immigration Act extends their leave and section 3C(4) prevents an application for variation of leave being made during this period. Accordingly, if they wish to make a fresh application during the 14 day period that their leave is extended under section 3C, they must complete an administrative review waiver form in accordance with paragraph AR2.10. This is confusing for applicants and creates an administrative burden on the Home Office. To rectify this, paragraph AR2.10 has been amended to provide that administrative review is no longer pending if a person makes a fresh leave to remain application. This means that 3C leave ends and the person is able to make a fresh application without the need to submit the waiver form.

7.6. Persons who require but do not have leave to enter or remain are liable for removal under section 10 of the Immigration and Asylum Act 1999 (as amended by the Immigration Act 2014). In February 2015 (HC1025), paragraph AR3.4 was added to Appendix AR, as an exception to the definition of an eligible decision, to prevent spurious applications being used to create barriers to removal. It was not intended to deprive persons of the right of administrative review following an unsuccessful application if they are not currently subject to removal proceedings. It has also been found that administrative reviews can be processed quickly and do not present a significant barrier to removal in cases where spurious applications are made. Therefore the rule has been deleted.

7.7. Other minor amendments have been made to Appendix AR to:

  • Make a minor change to paragraphs AR2.4 and AR2.5 to clarify that new evidence may be considered if it is submitted to demonstrate that either of the case working errors defined in AR2.11 (a) or (b) have been made. There was no intention to require that both errors must have been made before new evidence may be considered.
  • Correct a cross-reference in paragraph AR2.9 to paragraph 34R(3). The current paragraph 34R(3) was re-numbered from 34R(2) in a previous immigration rules change (HC1025).
  • Update the list of caseworking errors in paragraph AR2.11 to include cancellation of leave to enter or remain which is in force under paragraph V9.2 or V9.4 of Appendix V. This is to take account of the introduction of Appendix V into the Immigration Rules on 24 April 2015.
  • Make minor clarifications to paragraph AR3.2(a) – (d) to make it clear whether the relevant date referred to in these rules is the date of application or date of decision.
  • Delete sub-paragraph AR5.2(a)(iv) since it is not possible to apply for asylum from overseas.

7.8. Paragraphs 34L to 34Y of the Immigration Rules set out the requirements to make a valid application for administrative review. An addition has been made to paragraph 34N to provide that if a person has previously signed an administrative review waiver form (as defined in AR2.10 of Appendix AR of the Immigration Rules) in respect of an eligible decision, no subsequent application for administrative review of that decision may be made and any such application will be treated as invalid. This provides clarity on how such applications will be treated.

7.9. Paragraph 34R now specifies the deemed date of receipt of a notice of eligible decision where the notice is sent by courier or email. Where the eligible decision is a decision to grant leave, the biometric immigration document (BID) which states the length and conditions of leave granted is sent by courier and must be signed for by the applicant upon delivery. The date on which the decision notice or BID is deemed to be received determines the deadline date to apply in time for administrative review of the decision. Therefore it is important to provide clarity on the Immigration Rules on this date.

7.10. Section 3C of the 1971 Immigration Act does not act to extend leave and prevent any fresh applications from being made while an administrative review is pending where a person has received an eligible decision:

  • on an application which was made in the UK after the person’s leave had expired,
  • on an application which was made in the UK where the person still has extant leave at the time that the eligible decision was served,
  • on an application which was made outside the UK, or
  • made at the border.Such a person could lodge both an application for administrative review and a fresh application. If a fresh application and an administrative review were to be submitted simultaneously this would create administrative complexity: it would be unclear which application should be decided first and what should happen in the event that both applications succeeded. Therefore an amendment has been made to paragraph 34X, inserting a sub-paragraph (4) to provide that while an administrative review application is awaiting determination, making a fresh application for entry clearance, leave to enter or leave to remain has the effect of withdrawing the administrative review. This change addresses the above issues because a person cannot now simultaneously make an administrative review application and at the same time, an application for entry clearance, leave to enter or leave to remain.

7.11. A corresponding amendment is made to paragraph 34N, inserting a sub- paragraph (4) to provide that if such a fresh application is made (during the period when application for administrative review may be brought), an application for administrative review may not be made. This prevents a person from circumventing the new paragraph 34X and having a simultaneous fresh application and administrative review by making the fresh application first.

Family and private life

From the Explanatory Notes:

7.12. The following minor changes and clarifications are being made to the Immigration Rules on family and private life in Parts 7 and 8 and Appendix FM and Appendix FM-SE:

  • Providing that applicants under Part 8 who fail to meet the requirements for leave to remain or indefinite leave to remain as a victim of domestic violence or as a bereaved partner may request administrative review of the decision.
  • Ensuring that the transitional arrangements between Part 8 and Appendix Armed Forces cater for the partner of a British or settled member of HM Forces whose sponsor is discharged before they have applied for indefinite leave to remain.
  • Preventing those granted Temporary Admission or Temporary Release for a continuous period of six months or less from being able to make an application under Appendix FM, consistent with the approach taken to visitors and others granted leave of up to six months.
  • Clarifying that direct access (in person) to a child is required for entry clearance or leave to remain as a parent under Appendix FM.
  • Clarifying the basis on which an applicant can be required to pay the Immigration Health Charge before being granted limited leave to remain where an application for indefinite leave to remain fails to meet the requirements for that leave but falls to be granted limited leave instead.
  • Changes to the permitted sources of income and the specified evidence required under Appendix FM-SE in respect of the minimum income threshold for sponsoring a partner and any dependent children:

o Allowing the income of an equity partner, e.g. in a law firm, to include a share in the profits of the partnership and for this to be treated as employment income.

o Clarifying the requirement, in respect of non-employment income, for personal bank statements to be provided for or from the 12-month period prior to the application depending on the extent of that period for which the income is relied upon.

o Treating a fee paid to a person appointed as a non-executive director as though it were income from employment in that capacity.

o Allowing reliance on cash savings withdrawn from a pension pot owned by the person for at least the period of six months prior to the date of application, and requiring the specified evidence from the pension provider of any ongoing pension income also relied upon to reflect the cash withdrawn.

o Clarifying the evidence required to demonstrate ongoing employment as a director of, or ongoing dividend income from, a specified limited company.

  • Referring in the specified evidence required under Appendix FM-SE in respect of the English language requirement for partners and parents to test results which may not be in documentary form, and to transitional arrangements for an approved test centre as well as for an approved test provider or test.

I don’t think the Home Office liked the outcome of JA (meaning of “access rights”) India [2015] UKUT 225 (IAC) (Meaning of “access rights” to children in immigration law). I would respectfully suggest that finding a rules draughtsman with some familiarity of family law in the years after 1989 would have avoided this issue arising.

Other changes

Returning to the ministerial announcement, it also covers some further ground:

I am also taking this opportunity to make a number of smaller changes to the Immigration Rules:

– enabling South African diplomatic passport holders to travel visa free to the UK for the purpose of ‘visit in transit’

– amend the eligibility requirements for transit passengers, aligning the period within which non- visa nationals must intend and are able to leave the UK with that of visa nationals (other than those using the Transit Without Visa Scheme)

– changes to administrative review, which have been identified as necessary during the early stages of implementation

– minor changes and clarifications relating to family and private life, mainly reflecting feedback from caseworkers and legal practitioners on the operation of the rules

Some of this has already been covered above. The explanatory notes go into some detail on some tweaks to Tier 5 (including renaming the International Student Internship Scheme, for some reason…) and adding to the ministerial announcement only “some minor changes to the visit rules to clarify the requirements and permitted activities for visitors and to include the Llangollen International Musical Eisteddfod in the list of Permit Free Festivals.”

If you spot anything additional or surprising in the actual rules themselves, please do leave a comment for the benefit of others!

Colin Yeo
Colin Yeo A barrister specialising in UK immigration law at Garden Court Chambers in London, I have been practising in immigration law for 15 years. I am passionate about immigration law and founded and edit the Free Movement immigration law blog.

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