New statement of changes to the Immigration Rules: HC 813

The long-awaited statement of changes giving us more details on the famous “new Points-Based Immigration System” has now been published. It is over 500 pages long and even the explanatory memorandum, which is usually just a few pages long, weighs in at 50 pages. This article is a summary of the most important changes and we’ll be bringing you more detailed posts covering specific parts of the new rules in the coming days.

This set of changes really is a major overhaul of the Immigration Rules to which we are accustomed, so all lawyers and advisers have some serious reading to do.

The basics

Timing

First of all, what happens when?

• Most changes take effect on 1 December 2020.
• Most changes relating to provisions for Irish citizens, Appendix EU, Appendix ECAA and Appendix FM take effect on 31 December 2020. However, changes relating to cancellation, curtailment and revocation of leave to enter or remain for Appendix EU take effect on 1 December 2020.
• Changes relating to Hong Kong British Nationals (Overseas) take effect on 31 January 2021.

In addition, EU nationals cannot apply for leave to remain under routes other than Appendix EU, Appendix S2 Healthcare Visitor or Appendix Service Providers from Switzerland, before 11pm on 31 December. They can apply for any entry clearance before then, but any leave will be granted to start on 1 January 2021.

Appendices and simplification

Those words don’t go very well together. Yet I am afraid more Appendices are introduced by this statement of changes. That said, the explanatory memorandum does confirm that:

Where a route is being simplified, it is added to the rules as an Appendix. This avoids the need for complex cross-references where possible. This is a transitional measure and when the Immigration Rules are fully consolidated and simplified, the routes will be in the body of the rules as separate Parts.

In addition, we are losing some Appendices as we go. Wave goodbye to Appendix W, replaced by Appendix Global Talent; Appendix Innovator and Appendix Start-Up. And — fun fact! — Appendix ATAS, Appendix English Language and Appendix Finance are replaced by… Appendix ATAS, Appendix English Language and Appendix Finance.

Lastly, the length of the statement of changes is not as bad as it first looks. Some routes — including Tier 2 Minister of Religion, Tier 2 Sportsperson, UK Ancestry, Tier 5 (Temporary Worker), Start-up and Innovator — do not experience major changes, but they have been re-written (in Appendices, naturally) to, allegedly, make them easier to read. 

Overarching changes

Changes to “validity”

One big change to be aware of is the introduction of more “validity requirements” across the board. Some will be familiar, like the need to apply on a specified form and to pay the relevant fee. Others, though, are new, such as the need to provide written consent to the application from a government or scholarship agency which sponsored an applicant in the 12 months before the date of application. Other validity requirements are introduced depending on each route, such as the need to have a certificate of sponsorship for Skilled Workers; and the need to already be on an appropriate route. 

This is important to note because an application which is rejected as invalid rather than refused may interrupt the applicant’s section 3C leave, and therefore make them an overstayer.

Hopefully the Home Office will continue its current practice to allow applicants to “validate” their applications after the facts, by asking for the relevant additional information or documentation. However, some will presumably be fatal, such as the need to already be on an appropriate route

Refusal grounds

Major and restrictive changes are made to the refusal grounds. Most changes, but not all, do not apply to applications under Appendix FM (Family Route), Appendix AF (Armed Forces), Appendix EU (EU Settlement Scheme), Appendix EU (Family Permit), Part 11 (Asylum) (except paragraph 352ZH, 352ZP, 352J and 352U), Appendix S2 Healthcare Visitor and Appendix Service Providers from Switzerland.

• There are new discretionary grounds for refusal or cancellation for customs breaches, rough sleeping or being involved in a sham marriage. Rough sleeping is particularly nasty, considering that some end up rough sleeping as a direct result of Home Office hostile environment policies.
• There is a mandatory ground of refusal for those who have been convicted and sentenced to 12 months or more imprisonment; those who are persistent offenders; and those who have caused serious harm, seemingly without time-limit. In the past, persistent offending and causing serious harm was a discretionary ground. In addition, those sentenced to 12 months or more imprisonment would have their applications refused for ten years “only”.
• Sentences of less than 12 months imprisonment, and non-custodial sentences and out-of-court disposals recorded on an applicant’s criminal records, will be fatal for a period of 12 months for visitors and others applying for entry for less than six months. For other applicants, those lesser sentences will be discretionary grounds for refusal.
• On a more positive note, false representations are now discretionary, rather than mandatory, grounds for refusal, unless “the decision-maker can prove that it is more likely than not that the applicant used deception”.

English language

For the majority of routes, the English language requirement is amended to:

• allow applicants to only prove the required level of English once
• introduce Malta as a “majority speaking English language country”
• allow people with a degree from Ireland to rely on that as proof of English language
• allow applicants to rely on GCSE/A Level or Scottish Highers in English while at school in the UK to prove English language. This last change will, initially, only apply to applications for students, Skilled Workers, Start-up and Innovator migrants.

There is more on the English language requirement changes in this blog post.

Finances

Quite a few of the financial requirements of the immigration rules have been updated, although sadly not the minimum income rule for spouses. Bizarrely, some figures differ between the statement of changes and the explanatory memorandum – make sure you are reading the statement of changes. Was this sheer carelessness at the Home Office, last-minute decisions, or both?

Some positive changes to financial requirements include:

• Students, Skilled Workers, Intra-Company Workers, Tier 2 Ministers of Religion, Tier 2 Sportpersons, Tier 5 (Temporary Workers), Start-up and Innovator applicants will not need to meet the maintenance requirement if they have been in the UK for more than 12 months.
• Applicants can rely on electronic bank statements without needing to have the bank stamp every page (note that this does not apply to Appendix FM-SE applications).
• Applicants will be able to rely on a wider range of accounts (not just cash or cash savings), so long as the funds can be accessed immediately.
• Most applicants will need to submit evidence ending within 31 days of the date of application.

In terms of figures:

• The maintenance requirement for Parents of a Child Student will be set at £1,560/month up to a maximum of 9 months; and an additional £625/month for any child other than the Child Student who will be under their care in the UK.
• The maintenance requirement for Skilled Workers, Intra-Company Workers, Tier 2 Minister of Religion and Sportpersons, Innovators and Start-Ups, Tier 5 (Temporary Workers), including Seasonal Workers, Religious Workers,  Charity Workers, Creative and Sporting workers, International Agreement Workers and Government Authorised Exchange Workers will be increased from £945 to £1,270 and applicants are now required to show they have held the funds for 28 days.
• For most dependants, the maintenance requirement is reduced from £630 to £285 for a dependant partner, £315 for the first child applying and £200 for each subsequent child.
• The maintenance requirement for Youth Mobility applicants will be increased from £1,890 to £2,530 and applicants are now required to show they have held the funds for 28 days.

Continuous residence

A new Appendix Continuous Residence is introduced, to apply to most routes (but not Appendix FM and Appendix EUSS, for example). Many requirements will be familiar, including that continuity of residence is broken by absences of more than 180 days in any one year. Interestingly, it specifically refers to absences due to a “pandemic” as an exception to the rule.

Covid-19 concessions

In recent months, the Home Office has often repeated that those who did not have leave in the UK due to the pandemic would not be treated as overstayers. This has now made it into the Immigration Rules, by amending paragraph 39E to allow caseworkers to disregard overstaying between 24 January 2020 and 31 August 2020.

Visitors 

Visitors, who so far could only study for up to 30 days, will be allowed to study for up to six months. This also means that applicants who previously had to apply for a short-term student visa to study for a period of between 30 days and six months can now apply for a visit visa. There is still a short-term study route for those who want to study for a period of between six and 11 months. In addition, visitors who want to study recreational courses are still limited to 30 days.

Volunteering no longer needs to be “incidental to the main reason for the visit”, although it should be limited to 30 days.

Academic visitors will have more liberty to apply to extend their permission to stay in the UK for up to 12 months.

Students

Students already had their big moment in the last statement of changes, which we discussed in this post and this podcast. However, one additional change brought by these rules is the maintenance level, which will now be £1,334/month for students in London and £1,023 for students outside London.

In addition, students and their dependants who are allowed to work will now be able to work as postgraduate doctors or dentists in training.

Lastly, parents of Child Students will be granted leave to expire at the same time as the Child Student, or on the Child Student’s 12th birthday, whichever is sooner. This is a positive change as, with the current rules, a parent had to re-apply every twelve months instead.

Skilled workers

Reconfirming a lot of what had been announced already, and which Nichola helpfully summarised in this post, the Tier 2 route is replaced by an Appendix Skilled Workers. The main changes include:

• The minimum skill threshold is lowered from RQF level 6 to RQF level 3.
• The general salary threshold is lowered from £30,000 to £25,600; with this salary being “exchangeable” when other requirements are met, including having a PhD qualification relevant to the job; a PhD qualification in a STEM subject relevant to the job; a job in a shortage occupation; being a new entrant (with this definition being amended to allow those sponsored in postdoctoral research position; those working towards professional qualifications; and those who were on the Student route up to 2 years before the application); or being in a job in a listed health or education occupation.
• The current Tier 2 cap is suspended.
• Sponsors will no longer need to undertake a Resident Labour Market Test.
• The 12-month “cooling off period” and six-year maximum length of stay in the route are being removed.
• The £35,800 salary threshold for indefinite leave to remain applications is being removed, and replaced with £25,600 or the going rate for the occupation.

Interestingly, the Home Office has decided not to make the Migration Advisory Committee’s recommended changes to the Shortage Occupation List yet. The justification is that

The Government does not consider changes should be made at this time, before assessing how the UK labour market develops post-Covid 19 and in response to the introduction of the new Points-Based Immigration System.

More on this in a letter to the MAC.

Intra-company transfers

For this route too, the cooling-off period is removed. There will still be a time limit on how long an applicant can be under this route, but it will be up to five years in any six-year rolling period or, for high earners, up to nine years in any ten-year rolling period.

High earners will be those earning an annual salary above £73,900 (instead of £120,000). Those workers can have leave as Intra-Company workers for up to nine years and do not need to have been working for the business overseas for 12 months.

There are more flexible “switching” provisions, although applicants still need have been working for the sponsor for 12 months at the date of application (except for high earners).

EU, Swiss and Turkish nationals

Aside from the fact that EEA and Turkish nationals arriving after 31 December 2020 will need to meet the “normal” Immigration Rules, the following changes are made:

• Appendix ECAA Extension of Stay is introduced to replicate the existing ECAA arrangements so that Turkish workers, business persons and family members currently covered by those arrangements can continue to apply. However, suitability requirements are amended so that conduct committed before the end of the transition period is considered under the previous arrangements for restricting rights, whereas conduct committed after that date will be considered under the UK criminality thresholds.
• Appendix Service Provides from Switzerland is introduced, creating a brand new immigration route for individuals employed by Swiss companies and Swiss self-employed individuals to come to the UK for up to 90 days/year to fulfil contracts in the UK. To be eligible, the contracts must have been signed and commenced before the end of the transition period. The route is expected to run for
  five years, until 31 December 2025.
• Appendix S2 Healthcare Visitor is introduced to allow eligible patients, and those accompanying them to provide them with care or support, to come to the UK free of charge to receive a course of planned healthcare treatment provided by the NHS under the “S2 route”.  
• Appendix FM is amended to allow “new” family members of EU nationals with limited leave under Appendix EU, and of Turkish workers or business persons with limited leave, to apply under those Rules. In other words, family relationships which started before 31 December 2020 fall under Appendix EUSS and Appendix ECAA, while relationships starting after that will fall under Appendix FM.
• The rules will provide for those who have not applied under the EU Settlement Scheme before 30 June 2021 to apply after that date if there are “reasonable grounds why they missed the deadline”. This is the change that made headlines last week. There is no definition of “reasonable grounds” so presumably the Home Office will issue guidance about it in due course.
• The generous “assumed dependency” of a parent or grandparent of an EU national will be discontinued from 1 July 2021, at which point it will still be possible to apply, but dependency will no longer be assumed and will instead need to be evidenced.

Afghan interpreters

Amendments are made to the Afghan Interpreters ex-gratia relocation scheme, to allow Afghan interpreters who served for a minimum of 12 months to apply, whether they were made redundant or resigned. This is a time-limited amendment, and applications will need to be submitted between 1 December 2020 and 30 November 2022.

Youth Mobility Scheme

San Marino is being added to the Youth Mobility scheme country list as a country without Deemed Sponsorship Status with an allocation of 1,000 places. The Republic of Korea is being added to the list of countries where invitation to apply arrangements apply.

Global Talent

Changes are made to

• the criteria for consideration of senior appointments 
• the definition of the types of academic and research roles that qualify, which is being expanded.

Hong Kong British Nationals (Overseas)

The visa scheme for Hong Kong British National (Overseas) citizens, details of which had been published in a policy statement, and which were covered by John in this post, are now in the Rules.

There are two routes:

1. The BN(O) Status Holder route, for BN(O) citizens ordinarily resident in Hong Kong or the UK and their dependent family members
2. The BN(O) Household Member route, for adult children, born on or after 1 July 1997, of BN(O) citizens; and their dependent family members, provided they form part of the same household as the BN(O) citizen.

John will write a post with more details on this route, which will be the last one to come into force on 31 January 2021.

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Overall, a lot of changes; some to look forward to, and others less. What is certain is that all practitioners will need to get used to a significantly re-arranged set of Immigration Rules, with new Appendix names, new paragraphs numberings, new maintenance figures, new definitions, and, of course, some “points”. Make sure you amend your precedent letters before submitting new applications…