Statement of changes announced on the 29th October 2015, has now been in force since 19th November 2015. These changes are on top of the full implementation of the Immigration Act 2014. As most people are aware now, one of the main changes was the removal of the right of appeal and appeal rights are limited. Applications that are refused by the Home Office can only be challenged through an administrative review.
In our experience, administrative review do not, in our view, a right way to challenge the decision, as sometimes the decision can be biased. It is not independent, so how can the system be fair? Therefore, there has been, unsurprisingly, an increase to decisions being challenged through the “judicial review” process. Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body. In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
Most of these changes will affect all applications submitted on or after 19 November 2015 unless otherwise stated. However, if an application has been made for entry clearance or leave to enter or remain before 19 November 2015, the application will be decided in accordance with the Rules in force on 18 November 2015. The main changes are:
- English language requirements and using the approved language providers.
- EU nationals will need to now hold permanent residency 12 months prior to the date of application.
- Making asylum claims from EU nationals invalid, unless exceptional circumstances apply. Protocol 24 of the Lisbon Treaty relates to asylum for nationals of EU Member States of the European Union. Protocol 24 states that asylum claims from EU nationals should be declared inadmissible unless they fall within one of the four criteria which mainly revolve around another EU country derogating from the European Convention on Human Rights (ECHR) or if it is decided unilaterally to consider the claim. Where the claim is considered, as per current policy, it must begin with a presumption that it is manifestly unfounded.
- Clarifying the circumstances in which refugee status will be withdrawn. At an EU level, the Qualification, Procedures and Reception Directives which form the common asylum system are restricted in their application to Third Country Nationals and therefore do not apply to EU nationals. This is because all of the Directives (Procedures at Article 2(c); Reception at Article 2(b); and Qualification at Article 2(c)) make it clear that they only apply to third country nationals. That leaves EU nationals to rely on the Refugee Convention itself. Humanitarian Protection is not in the Convention and is a concept created by the Qualification Directive. So there is no international obligation to consider Humanitarian Protection for EU nationals.
- Ensuring indefinite leave and naturalisation applicants, who normally rely on an English language qualification, take a secure English language test. The new approved list has now been published and can be found on the Home Office website.
- The introduction of the £35k minimum earnings threshold for Tier 2 settlement, which will come into force on 6 April 2016.
- Providing that a child’s application for entry clearance will be refused where the Secretary of State considers that the sponsor or the sponsor’s partner poses a risk to the child.
Tier 1 (Entrepreneur) of the points-based system
- There has been a number of changes to the Tier 1 visa and more details can be found on the following page: https://www.icslegal.com/tier1-entrepreneur.php.
- The genuine entrepreneur test has been part of the assessment of a Tier 1 visa application and the Home Office have now made minor and technical changes to the evidential requirements for entrepreneurs to respond to partner feedback and to prevent abuse. In particular, they are making an amendment to the genuine entrepreneur test for initial applications so that the Secretary of State can make an assessment of any previous investment made by an applicant into a UK business, in order to be satisfied that this investment was genuine.
- The type of specified evidences required for the Tier 1 visa is now being amended.
Tier 1 (Graduate Entrepreneur)
- The prescribed content of the endorsement letter required from the endorsing body is being expanded to request confirmation that the applicant has a genuine and credible business idea and that they will spend the majority of their time developing business ventures.
Tier 1 (Exceptional Talent) of the points-based system
- amending the endorsement criteria used by Tech City UK, to better reflect the skills and experience of target applicants who are most likely to add value to the UK digital technology sector.
Changes across Tier 1
- The Association of Accounting Technicians (AAT) is being added to the list of UK accounting bodies whose evidence is accepted in various Tier 1 categories.
Tiers 2 and 5 of the points-based system
- Adding nurses and four digital technology jobs to the Tier 2 shortage occupation list.
- Changes to clarify the charity worker rules for sponsors and applicants.
- Setting the annual allocation of places available under the youth mobility scheme for 2016.
- Minor amendments to the list of government authorised exchange schemes.