If you can say one thing about the Home Office, it’s that they have questionable priorities! In the middle of a pandemic, with thousands of migrants not knowing whether or not they will have to leave the UK in just over two weeks, the department has decided to publish a statement of changes to the Immigration Rules on a host of unrelated issues.
Thankfully, there is at least some good news, in particular for victims of domestic abuse and family members of Northern Irish people. There are less good news for representatives of overseas businesses.
Most of the changes summarised below come into force on 4 June 2020. The more significant of the changes to the EU Settlement Scheme, including the Northern Ireland concession, take effect on 24 August 2020.
As always, practitioners are advised to read the new Rules in full before making a new application, but we hope this post will highlight the main changes to be aware of.
EU Settlement Scheme
The wording of Appendix EU gets more and more convoluted with each new statement of changes — ironic given that the Home Office is promising to simplify the Rules by January 2021. That said, the changes this time around are mostly positive.
The biggest piece of good news is undoubtedly the expansion of the scope of the EU Settlement Scheme to include the family members of certain British citizens. Family members of the people of Northern Ireland can now apply to be sponsored under the Settlement Scheme rather than through the regular UK family immigration system. This follows through on a promise made in January 2020. We’ll cover the specifics in a separate post by a Northern Ireland-based practitioner, hopefully early next week.
Another group positively affected by the statement of changes are victims of domestic abuse. The current Rules only allow ex-spouses of EEA nationals who were victim of domestic abuse to retain their rights of residence. From August, any family member who falls within the scope of the Scheme (including durable partners, children, dependent parents and dependent relatives), and whose family relationship with a relevant EEA citizen broke down as a result of domestic abuse against them or another family member, will be able to retain rights of residence. This change takes effect from 4 June 2020.
There are also minor technical and practical changes including:
- The Home Office may ask an applicant to provide a certified English translation (or a Multilingual Standard Form) of a document which is not in English.
- Some paper forms may be sent by email, provided an email address is specified on the form. If an application is sent by email, the date of application will be the date “on which it is recorded by the Home Office e-mail software as received”.
Representatives of overseas businesses
The rules for representatives of overseas businesses, or “sole reps”, are tightened up. This is probably because this route has become increasingly popular following the closure of the Tier 1 (Entrepreneur) route, which was replaced by the much less generous Innovator route. Instead of improving Innovator, the Home Office has decided to clamp down on perceived abuse in the sole rep category.
Some changes seem to be more clarifications than actual substantive amendments. For example, the Rules now specify that the overseas sponsor should continue to have its headquarters and principle place of business outside the United Kingdom. The guidance already made it clear that the company needed to intend to keep its main centre of business abroad.
Similarly, the fact that an applicant must be a senior employee and cannot engage in their own business or represent any other business in the UK is added to some paragraphs, when it was already included in other paragraphs of the same Rules.
The more worrying news is the creeping of a bunch of more subjective than objective requirements. The Rules now include a “genuineness assessment”, specifying that a sole rep needs to “genuinely” meet the Rules. Of course, you always had to genuinely (as opposed to fraudulently??) meet the Rules. But adding this wording to the Rules allows decision-makers to refuse an application on the basis of their own, subjective assessment that you may meet the Rules but you don’t actually meet the Rules because we don’t believe you are using them genuinely.
Also telling is the new wording that the business’s branch or subsidiary shouldn’t be “established solely for the purpose of facilitating the entry and stay of the applicant”.
The Rules now also state that the applicant must have “relevant skills, experience and knowledge of the business”, which again is open to interpretation and not necessarily an objective assessment.
Finally, the Rules now limit the ability of those with a majority stake in the overseas business to use this route. In particular:
- Where the Rules used to say that a sole representative should not be “a majority shareholder in the overseas business”, they now say the sole representative should not “have a majority stake in, or otherwise own or control, that overseas business, whether that ownership control is by means of shareholding, partnership agreement, sole proprietorship or any other arrangement”.
- It is no longer possible for the partner of someone with a majority stake in the overseas business to rely on the Rules, and have the owner of the business come in as their dependent.
Note that these changes come into effect on 4 June, but any sole rep application submitted before then will be decided in accordance with the current Rules. Those who may have issues with the changes should submit an application as soon as possible (despite, of course, potentially not being able to actually have their application processed due to the closure of visa application centres).
Like with the sole rep changes, changes to Appendix W will come into effect on 4 June but applications submitted prior to that will be decided in accordance with the current Rules.
For all applicants under Appendix W (that is, Start-up, Innovator and Global Talent applicants), the Rules now confirm that those who had a student visa and were sponsored for their studies in the UK by a government or international scholarship agency in the 12 months before the date of application must have the unconditional written consent of that sponsoring government or international scholarship agency to make the application. This is whether they submit their application from within or outside of the UK.
Start-up and Innovator
A provision is being added for decision-makers to request further information or evidence from applicants or their endorsing bodies, if they have concerns that an endorsement has been issued inappropriately, and to refuse applications if they are not satisfied the endorsement criteria have been met.
It is interesting that this provision has only been added for Start-up and Innovator applicants, and not for Global Talent applicants, who are also endorsed by a third party. This presumably follows a worry that endorsing bodies for Start-up and Innovators are acting more “dodgily” than endorsing bodies for Global Talent applicants. It does somewhat defeat the purpose of having endorsing bodies in the first place. They have been given responsibility to review applications on the basis of their particular expertise in the area, which the Home Office does not have. It may have made more sense for the Home Office to instead conduct ad hoc reviews of endorsing bodies, similarly to what they do with Tier 2 sponsors, and take action against them if they are found to have acted inappropriately.
On a positive note, higher education providers can now be endorsing bodies for Innovator visas (they used to only be able to endorse Start-up applicants).
The “viability” criteria for a business idea to be endorsed is being amended to add that “the applicant’s business plan is realistic and achievable based on the applicant’s available resources”.
Lastly, a couple of clarifications are made including that
- Applicants may change business venture, providing their endorsing body is satisfied the new venture meets all of the criteria for endorsement, without having to obtain a new endorsement or make a new application (this was already in the guidance but is now also in the rules).
- Applicants must be founders of their businesses and be relying on their own business plans. They must have “generated the ideas in the plan (or made a significant contribution to those ideas) and must be responsible for executing the plan”. Presumably this is to avoid applicants relying on a third party providing the business plan and them implementing it, although I am not sure in what ways it serves the purpose of the Rules, which presumably is just to attract profitable businesses to contribute to the British economy (although not really succeeding).
- An Innovator applicant’s business may be already trading, providing they were one of its founders.
The changes in this route are quite small and mostly come from requests by endorsing bodies. For example:
- The British Fashion Council wanted to clarify that it will consider applications specifically for those involved in fashion design rather than the wider industry.
- Letters of recommendations should be no longer than three sides of A4 sides (I have done a number of these applications and have never used a letter of more than two pages — I can see how letters longer than three pages could be very annoying for endorsing bodies!).
- Documentation from third parties should show the organisation’s logo and registered address.
Another welcome amendment is the clarification that exceptional promise applicants in the field of Arts and Culture can submit evidence of appearances in which they were not named. They can provide evidence from a senior individual linked to the work in question, outlining the significant and direct contribution the applicant made.
Two final welcome amendments to the rules on family migration.
The first is on criminal convictions. Where an applicant was sentenced to a period of imprisonment of between 12 months and four years, their application for limited leave to remain should only be refused for ten years after the end of the sentence. It was always bizarre, and probably an oversight, that Appendix FM allowed decision-makers to refuse an application forever in those circumstances. By contrast, the general grounds for refusal, which are traditionally stricter than the suitability requirements of Appendix FM, limited the refusal to a period of ten years.
When relying on self-employment to meet the financial requirements, applicants must submit accounts signed by accountants from specified accounting organisations. The rules relating to which organisations were acceptable were stricter under Appendix FM-SE compared to the rules for economic migrants. They have now been expanded to be consistent. I emailed the Family Policy department on at least three occasions about this, and I like to think they made the change because they were tired of me!
Finally, the rules relating to fiancé(e) visas confirm that the purpose of the route is to allow couples to get married in the UK. I’m not sure who needed this to be clarified.