Statement of Changes coming into force 28th Dec 2017 - ICS Legal Blog

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Statement of Changes coming into force 28th Dec 2017

Statement of Changes coming into force 28th Dec 2017.

Changes relating to immigration bail

The Government proposes to commence Schedule 10 to the Immigration Act 2016 as soon as practicable. Schedule 10 introduces a new provision of immigration bail and repeals the existing powers of temporary admission and temporary release. The changes in this Statement of Changes relate to the rules concerning applications for entry clearance, leave to enter or remain, further leave or indefinite leave in various scenarios. The common factor in each case is the relevance of the applicant having last been granted, or being currently on, temporary admission or temporary release.

Those who were granted and remain on temporary admission or temporary release on the date on which the provisions of Schedule 10 are commenced will automatically be treated as if they had been granted immigration bail. After that date, temporary admission and temporary release will no longer be granted, and immigration bail will be granted instead. However, for some time after the commencement of the provisions in Schedule 10 there may be individuals whose earlier grant of temporary admission or temporary release is relevant to their application. Accordingly these references in the rules are preserved to ensure there is no prejudice caused by the changes.

Changes relating to general grounds for refusal

The last part of paragraph 320(2) in Part 9 was introduced on 22 November 2012 (HC 760). The policy intention was to emphasise the public interest in refusing to permit a person convicted of a criminal offence to enter the UK. That remains an important policy aim, but 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.

This section of paragraph 320(2) is therefore being deleted, together with the other instances of this paragraph in Appendix Armed Forces (paragraph 8(d)), Appendix FM (in paragraph S-EC.1.4) and Appendix V (in paragraph V3.4). The amendment to paragraph 320(7B) brings the treatment of applicants for leave to enter or remain into line with the treatment of entry clearance applicants.

Changes relating to electronic entry clearance

The Government proposes to commence issuing entry clearance in electronic form. This will initially be trialled with specified groups with a view to general introduction of entry clearance in electronic form at a subsequent date. These changes relate to the rules concerning the format in which an entry clearance is to be issued; and also the documents that need to be presented to an immigration officer.

Currently the Immigration Rules require an entry clearance to be endorsed in a valid passport or other identity document. The amendment to the rules will allow entry clearance to be issued both in an electronic form and by endorsement in a valid passport or identity document. Applicants who hold an entry clearance issued in electronic form will not be required to present such an entry clearance to an Immigration Officer on arrival in the UK. The issue of such an entry clearance will be checked electronically.

Changes relating to visitors

Appendix 3 to Appendix V sets out the permitted activities for all visitors except transit visitors. The permitted activities do not allow visitors other than transit visitors to transit the UK, which means that, for example a person who requires a visa to visit the UK for business, tourism, to get married or for other visit purposes, must obtain a separate visa in order to transit the UK. The change introduced by these rules will enable visitors who hold a standard or marriage/civil partnership visit visa to transit the UK without the need to obtain a separate visa. Transit visas will still be available for transit only visits.

Appendix 3 to Appendix V also sets out the study that visitors are permitted to undertake in the UK. Appendix 3 is being changed to clarify that visitors are not permitted to study at an academy or a school maintained by a local authority.  Appendix 5 to Appendix V comprises a list of events that are Permit Free Festivals. Permit Free Festivals are events that are assessed as contributing to the cultural heritage of the UK and at which performers can, exceptionally, be paid for their participation as visitors. Visitors cannot normally receive payment from a UK source for any permitted activities they undertake here. The list for 2017/18 has been updated to include the Africa Utopia festival.

Changes relating to Tier 1 of the Points-Based System

Tier 1 of the Points-Based System caters for high value migrants, and currently consists of four active categories: Tier 1 (Exceptional Talent), Tier 1 (Entrepreneur), Tier 1 (Investor) and Tier 1 (Graduate Entrepreneur). It also includes the Tier 1 (General) category, which was closed to new applicants in April 2011 but remains open for settlement applications until April 2018. The Tier 1 (Post-Study Work) category was closed in April 2012. Provisions relevant to switching from this category to Tier 1 (Entrepreneur) or Tier 1 (Investor) categories are being removed as they are no longer required.

The Tier 1 (Entrepreneur) category caters for applicants coming to the UK to set up, take over, or be involved in the running of a UK business. In response to feedback, the “Attributes” requirements for this category in Appendix A are being rewritten to make them clearer and easier to follow. There are also consequential minor changes to Part 6A. The requirements themselves are unchanged, other than the following:

  • The job creation rules currently require jobs to have existed for at least 12 months during the applicant’s most recent period of leave. A change is being made to enable applicants to apply even if their current leave was granted less than 12 months ago; in such cases the jobs must have existed for at least 12 months before the date of the current application.
  • A transitional arrangement relating to the job creation requirement for applicants who entered the category before 6 April 2014, currently set out in published guidance, is being incorporated into the Immigration Rules. This transitional arrangement will only apply to extension and settlement applications made before 6 April 2019.
  • Applicants will be asked to confirm the paid hours of the employees in jobs they created as well as the hourly rate, to reduce the possibility of calculation errors.
  • An amendment is being made to the requirement relating to Real Time Full Payment Submissions, to reflect the fact that these documents do not state the employment start date.
  • An amendment is being made to the requirements relating to job creation, so that the required evidence relates to the period before the applicant joined the Page 6 of 12 business, rather than the period before jobs were created. This provides a clearer demonstration of the applicant’s impact on the business.
  • Clarifications are being made to make clear that, where funds are currently held by another business, which is not the business the applicant is using to score points, that business is considered to be a third party providing funding.
  • Applicants relying on investment from a venture capital firm will now be required to also provide a letter from the firm confirming the date(s) the funds were transferred to the applicant or invested in their business and that the firm was registered with the Financial Conduct Authority at the time. This requirement is added to counter ongoing abuse relating to venture capital funding.
  • To prevent recycling of funds between applicants, a change is being made so that applicants cannot rely on funds or investment that have been provided by another Tier 1 (Entrepreneur) Migrant, or that migrant’s business or close family member. Who is considered to be a close family member will depend on the facts in an individual application.
  • On 19 November 2015, Statement of Changes HC 535 introduced a requirement that investments made in the form of directors’ loans must be evidenced through readily identifiable transactions in applicants’ business bank statements. A change is being made so that this requirement only applies to investments made after 19 November 2015.
  • A provision is being removed because it contradicts the rule requiring applicants to be registered with Companies House within 6 months of the date the applicant entered the category. The removed provision requires that such registration has to be effected within 8 months of the same date.
  • Redundant transitional arrangements relating to applicants switching from Tier 1 (Post-Study Work) are being removed. This is because leave as a Tier 1 (Post-Study Work) Migrant was granted for two years and the category was closed on 6 April 2012.
  • A clarification is being made to the rule which excludes buying the business from its previous owner from being considered as a qualifying investment, to clarify that this means buying any business from its previous owner.
  • Minor amendments are being made to the requirements concerning format and contents of letters (used as evidence) for consistency.
  • Clarifications are being made to the evidential requirements for Tier 1 (General) migrants switching into the Tier 1 (Entrepreneur) category to make clear the relevant dates for evidence.

Changes relating to Tier 2 of the Points-Based System

Tier 2 of the Points-Based System caters for migrant workers with an offer of a skilled job from a licensed employer. There are four categories: General, IntraCompany Transfer (ICT), Minister of Religion and Sportsperson. Tier 2 (General) 7.19. The Tier 2 (General) category is for migrant workers with an offer of a skilled job from a licensed employer which cannot be filled by a resident worker.

The following changes are being made to this category:

  1. Flexibility is being introduced to enable students to apply to switch to Tier 2 after their studies as soon as they have completed their courses. Currently nonPhD students cannot apply to switch within the UK until they have received their final results.
  2. Exemptions from the Resident Labour Market Test are being added for posts to be held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and for established research team members sponsored by either a Higher Education Institution or a Research Council.
  3. Pay rates for health sector workers are being brought into line with pay scales in England and each of the devolved administrations, and consolidated in a new table.
  4. Provision is being made to allow nurses to be sponsored under Tier 2 if they are undertaking an approved programme with a view to returning to practice.
  5. A provision that is currently set out in the Sponsor Guidance is being incorporated, which restricts how far a migrant’s start date may be put back before it becomes a prohibited change. The restriction now applies only to Tier 2 (General) Migrants, and only to any changes to start date which occur after leave has been granted.
  6. A minor correction is being made to the Shortage Occupation List. Tier 2 (Intra-Company Transfer (ICT).

The Tier 2 (ICT) category supports inward investment and trade by allowing multinational employers to transfer key company personnel from overseas to their UK branch. The following changes are being made to this category:

  • A transitional arrangement which is no longer required is being removed. The arrangement ensured that migrants granted leave for 12 months or less under the rules in place before the Short Term Staff sub-category was introduced on 6 April 2011, were treated no less favourably than those granted in that subcategory in the context of the 12 month cooling-off period requirement.
  • The definition of the Long Term Staff sub-category is being amended, to reflect the closure of the Short Term Staff sub-category on 6 April 2017.

Changes to indefinite leave to remain in work categories

The requirement to have had absences from the UK of no more than 180 days per year in order to qualify for settlement, which currently applies to main applicants, is being extended to partners of Points-Based System Migrants. To ensure that this requirement does not have retrospective effect, only absences from the UK during periods of leave granted under the rules in place from 11 January 2018 will count towards the 180 days.

The maximum 180 days absences requirement is waived for absences when applicants have assisted with the Ebola crisis in West Africa. This provision is being widened to include assisting with any national or international humanitarian or environmental crisis. An amendment is being made so that Tier 2 Migrants are no longer required to have been continuously employed throughout the qualifying period to be eligible for settlement. The provision is unnecessary as a Tier 2 migrant who is no longer working for their Sponsor is subject to curtailment.

Minor changes are being made to provide clarification, to remove duplication and inconsistencies relating to:

  1. How the end date of the qualifying period for settlement is ascertained.
  2. How the maximum 180 days of absence from the UK per year are counted for the purpose of a settlement application.
  3. How time lawfully spent in the Isle of Man or Channel Islands in equivalent immigration routes can be counted towards time spent in the UK for the purpose of a settlement application.

Changes relating to Short-Term Study

Short term study (STS) is the route used to study in the UK for up to 6 months (or up to 11 months when studying an English language course). The following changes are being made:

  1. The definition of a “state-maintained school” is being removed to avoid duplication, as this is already defined in paragraph 6 of the Immigration Rules.
  2. A definition of “a course” within STS is being provided to give clarity that more than one programme of study can be undertaken on the STS route as long as they are completed within the validity of the visa period.
  3. To allow students studying under the STS route to remain in the UK for up to 30 days at the end of their study to provide greater clarity and bring the route in line with other short-term visas.
  4. The minimum age requirement within STS is being reduced from 18 to 16, to allow those aged 16 and over to apply for the longer English courses and to ensure the genuine student rule is applied consistently across the student visa categories.
  5. The Higher Education Funding Council for England (HEFCE) is being added to the list of bodies that can provide institutional inspections.
  6. STS students are not entitled to take part in any type of work, whether paid or unpaid. An amendment is being made to allow students to complete electives when they are studying towards a medical, dentistry or veterinary degree at an overseas HEI through the STS route. Those studying electives will continue to be unable to undertake any other type of work.
  7. Amendments are being made to make the STS Rules gender neutral.
  8. Sections relating to dependants within the STS rules are being deleted as they are now obsolete.

Changes relating to family members of Tier 4 migrants

Work rights for dependants of Tier 4 students are being updated to ensure these remain if the relevant main Tier 4 applicant is applying, or been granted leave, to study the same course for which they have previously been granted leave of 12 months or more, as a Tier 4 (General) Student. Amendments are being made so that Tier 4 students studying part-time courses will not be able to bring dependants to the UK.

If you have any questions related to the changes, feel free to email us on info@icslegal.com or you can call us on 0207 237 3388.