Statement of changes to the Immigration Rules: HC1154, 15 June 2018 - ICS Legal Blog

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Statement of changes to the Immigration Rules: HC1154, 15 June 2018

Statement of changes to the Immigration Rules: HC1154, 15 June 2018

The purposes of the main changes are to:

  1. Make provision for returning residents, including those affected by Windrush.
  2. Create a route for Afghan locally engaged staff to apply for settlement in the UK and to extend the ex-gratia redundancy scheme by six years, to include those made redundant on or after 1 May 2006.
  3. Create a new settlement route for Turkish ECAA business persons, workers and their family members.
  4. Create a new form of leave for people, transferred to the UK under the Dubs amendment, who do not qualify for international protection.
  5. Exempt all doctors and all nurses from the annual Tier 2 (General) limit.  Create new provisions in the Tier 1 (Exceptional Talent) category.

The changes to Part 7 set out in paragraph 7.2, to Part 8 set out in paragraphs 8.1 and 8.2, to Part 11 set out in paragraph 11.1, to Appendix A set out in paragraphs A14 to A17 and A21 to A25, to Appendix ECAA set out in paragraph ECAA1., to Appendix FM set out in paragraphs FM1. to FM4. and to Appendix FM-SE set out in paragraphs FM-SE1. and FM-SE2. of this statement shall take effect from 6 July 2018 and will apply to all decisions made on or after that date.

The other changes set out in this statement shall take effect on 6 July 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 6 July 2018, the application will be decided in accordance with the Immigration Rules in force on 5 July 2018.

Changes relating to returning residents

The returning residents rules set out the provisions relating to persons who have acquired indefinite leave to enter or remain in the UK and who are returning to the UK following an absence overseas. This could also include those returning to the UK, under these provisions, as part of the Windrush policy. Changes have been made to clarify the distinction between those who have been absent from the UK for less than 2 years and so retain their indefinite leave status, from those whose indefinite leave has lapsed due to an absence of more than 2 years. Those in the latter category must now apply for entry clearance and demonstrate they have strong ties to the UK in order to be issued indefinite leave to enter.

Changes relating to leave to enter or stay in the UK

A minor change is being made to the wording of paragraph 39E (exceptions for overstayers) because, as currently worded, the paragraph would permit some applicants to make one additional application, which is not the policy intention.

39E. This paragraph applies where:

  1. (1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
  2. (2) the application was made:
    1. (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
    2. (b) within 14 days of:
      1. (i) the refusal of the previous application for leave; or
      2. (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
      3. (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
      4. (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

Applicants should not be able to make any additional applications. The change will close this discrepancy.

Changes relating to refusal of entry clearance or leave to enter the United Kingdom

Paragraph 320(7BB) sets out the specific circumstances in which previous periods of overstaying should be disregarded. A minor change is being made to the wording of this rule to clarify that overstaying, pending the determination of any out of time application made on or after 24 November 2016 to which paragraph 39E applies, will also be disregarded for the purposes of calculating the period of overstaying in paragraph 320(7B)(i).

Changes relating to immigration bail

The Government commenced Schedule 10 to the Immigration Act 2016 on 15 January 2018. This introduced a new provision of “immigration bail” and repealed the existing powers of temporary admission and temporary release, as well as immigration bail under Schedule 2 of the Immigration Act 1971.

The change in this Statement of Changes relates to the rule concerning applications for leave to enter or remain, as the child of a person with limited leave to enter or remain in the United Kingdom. Other rules changes have already been made to those rules relating to 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.

Transitional provisions provide that those who were granted temporary admission or temporary release before 15 January 2018, and whose grant remained extant on that date, are automatically treated as if they had been granted immigration bail under Schedule 10 to the 2016 Act. After that date, temporary admission and temporary release can no longer be granted, and immigration bail is 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 Tier 1 of the Points-Based System

Tier 1 of the Points-Based System caters for high value migrants. The current rules contain four active categories: Tier 1 (Exceptional Talent), Tier 1 (Investor), Tier 1 (Entrepreneur) and Tier 1 (Graduate Entrepreneur). They also include the Tier 1 (General) category, which was closed to new applicants in April 2011 but remained open for settlement applications until 6 April 2018.

Tier 1 (Exceptional Talent)

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. Applicants must be endorsed by a Designated Competent Body. The following changes are being made to this category:

The endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses. These applicants will be assessed by the British Fashion Council operating within the endorsement remit of Arts Council England.

Other changes are being made to the criteria for endorsement by each Designated Competent Body, at those bodies’ requests. These include changes to the evidential requirements for applicants holding a peer-reviewed research fellowship; changes to the criteria and list of eligible awards for applicants in film and television; and changes for digital technology applicants to reflect the rebranding of “Tech City UK” as “Tech Nation”.

Amendments are being made so that endorsements for Croatian nationals no longer count against the number of allocated endorsements available to each Designated Competent Body. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion, this July, of the fifth anniversary of Croatia’s accession to the EU in July 2013.

Tier 1 (Investor)

The Tier 1 (Investor) category is for high net worth individuals making an investment of at least £2 million in the UK. The following changes are being made to this category:

  1. Applicants are required to maintain their investments. A change is being made to clarify that, while applicants may withdraw interest and dividend payments generated by their qualifying investments from their portfolios, they may not do so if these were generated before the applicant purchased the portfolio.
  2. As evidence of their investment, applicants must currently submit portfolio reports signed off by a financial institution regulated by the Financial Conduct Authority. A technical change is being made to require institutions to confirm that the funds have only been invested in qualifying investments, and that no loan has been secured against those funds. This change will put a further obligation on financial firms to scrutinise the suitability of applicants’ investments, in addition to their own due diligence.

Tier 1 (Entrepreneur)

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. Applicants must have either £200,000 or £50,000 funds (depending on the circumstances) to invest in their businesses.

Two amendments are being made to:

  • make clear where letters from legal representatives confirming signatures are required; and
  • restore a provision for accountants to confirm that investment has been made on an applicant’s behalf.

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.

  • The Tier 2 (General) category is the main immigration route for UK employers seeking to recruit non-EEA skilled workers. It is subject to an annual limit of 20,700 places, divided into monthly allocations.
  • Changes are being made to exempt doctors and nurses from the Tier 2 (General) limit. This is in response to the particular shortages and pressures facing the NHS at the current time, and the fact that the limit has been oversubscribed in each month since December 2017. The changes will mean that health sector employers will be able to sponsor doctors and nurses without requiring restricted Tier 2 certificates of sponsorship or putting pressure on the limit. This will free up places within the limit for other key roles which contribute to the UK economy and other public services. The changes will be kept under review.
  • In all other respects, the change preserves the existing arrangements. This means that all applications for nurses, and all applications for doctors not currently recognised on the Shortage Occupation List, will continue to be required to demonstrate that they have met the requirements of the Resident Labour Market Test. Doctors currently recognised on the Shortage Occupation List will continue to be exempt from the RLMT.

The following additional changes are being made to Tier 2:

  1. Amendments are being made so that applications for Restricted Certificate of Sponsorship for Croatian nationals no longer count towards the Tier 2 limit. This is because Croatian nationals will no longer need to apply for work authorisation in this category, owing to the lifting of transitional controls on the work rights of Croatian nationals on the occasion of the fifth anniversary of Croatia’s accession to the EU.
  2. From 14 June 2012, the skills threshold for jobs sponsored under Tier 2 (General) and Tier 2 (ICT) increased from Regulated Qualifications Framework (RQF) level 4 to RQF level 6. The transitional arrangements, for those previously in these routes to extend their stay, are no longer needed and are being closed. Provisions for these migrants to apply for indefinite leave to remain are being retained. The Government signalled in March 2016 that this closure would take place in July 2018, and set this out in the published guidance for Tier 2 sponsors.
  3. A change is being made to expand the restriction on Tier 2 migrants holding more than 10% of shares in their sponsor so as also to restrict such ownership being held indirectly, such as via another corporate entity.
  4. A change is being made to the evidential requirements for Tier 2 migrants applying for settlement, who have been absent from work on maternity, paternity, shared parental or adoption leave. These applicants are additionally required to provide evidence of the underlying adoption or birth that necessitated their leave. These changes bring the requirements in line with similar requirements elsewhere in the Immigration Rules.
  5. References to Find a Job, the service replacing Universal Jobmatch, have been included for the Resident Labour Market Test.
  6. Minor drafting corrections are being made to correct the Standard Occupational Classification (SOC) code used for midwives. These corrections have no impact on the way applications for midwives are considered.

Changes to indefinite leave to remain in work categories

Applicants for indefinite leave to remain must complete a continuous period (usually 5 years) with valid leave and absences from the UK of no more than 180 days in any 12-month period during that time. The following changes are being made to these provisions:

A transitional arrangement is being applied, to ensure that the new absences calculation rule, effective from 11 January 2018 (in HC 309), does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to that date.

Provisions setting out when an applicant’s continuity of leave is not broken are currently more generous for in-country applications than for entry clearance applications (where applicants have otherwise had continuous stay in the UK but happen to be overseas when their previous leave expires). Changes are being made to bring the entry clearance provisions into line with the (more generous) in-country provisions.

Changes relating to short-term students

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). A clarification has been added to A57E to confirm that short-term students who receive a visa for a course of study between 6 and 11 months, will not have ‘accompanied’ or ‘unaccompanied’ stated on their vignette.

Paragraph A57F has been amended to reflect that short-term students are subject to Part 15 of the Immigration Rules, which specifies that migrants studying certain subjects, such as aerospace engineering, must obtain an ATAS (Academic Technology Approval Scheme) certificate, prior to commencing their studies.

Changes relating to Tier 4 of the Points-Based System

Tier 4 of the Points-Based System is the route used by non-EEA nationals wishing to study in the UK. Tier 4 is comprised of two categories: Tier 4 (General) and Tier 4 (Child).

  1. All references to the Higher Education Funding Council for England (HEFCE) have been replaced by references to the Office for Students. This reflects the fact that, from 3 April 2018, the Office for Students replaced HEFCE as the body with responsibility for regulating higher education providers in England.
  2. Paragraph 6 of the Introduction to the Immigration Rules has been updated with a new definition for a state-funded schools, academies and independent schools, to ensure all types of schools across the UK are captured adequately.
  3. Consequential to the preceding change, references to “an Academy or a school maintained by a local authority” have been replaced with “a state funded school – except for voluntary grammar schools with boarding in Northern Ireland – and academies”.
  4. Amendments are being made to the Tier 4 conditions of leave to reflect the changes to Part 15 of the Immigration Rules, whereby students studying or undertaking research in certain risk subjects, such as aerospace engineering, will be required to obtain an ATAS certificate, irrespective of the length of the course or research period.
  5. An amendment is being made to the Tier 4 (General) conditions of leave to allow students to study on a study abroad programme, regardless of when the programme is added to their course.
  6. As independent schools are now only permitted to sponsor Tier 4 (Child) students, paragraphs 245ZZB(c)(iv)(4) and 245ZZD(c)(iv)(4) have become obsolete as they refer to working rights of Tier 4 (Child) students employed as student union sabbatical officers. These are therefore being deleted.
  7. The minimum length that a postgraduate course needs to be in order for a Tier 4 Migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 9 months.
  8. On 11 January 2018, the Tier 4 Guidance for Educators, published on the GOV.UK website, was updated to allow higher education institutes to enter partnerships with research institutes. The research institute in such a partnership must either be:
  • listed as in receipt of UK Research and Innovation and its Councils (formerly Research Councils UK) grant funding, or
  • listed as a research institute with which the Research Councils have established a long-term involvement as major funder, and eligible to receive research funding. 7.31. Courses offered under such a partnership must lead to the award of a master’s or PhD level degree.

An addition is being made, to paragraph 120(a) of Appendix A to the Immigration Rules, to specify that where a Certificate of Acceptance for Studies (CAS) is issued for study on such a course, the CAS will only be valid if the course is accredited as leading to an accredited qualification at the required level.

Paragraphs 120-SD and 125-SD of Appendix A set out the types of specified documents which are acceptable as evidence of a Tier 4 student’s previous qualifications. Currently these are limited to original certificates of qualification, transcripts of results, original references (or a copy, together with an original letter from the Tier 4 sponsor confirming it is a true copy of the reference they assessed).

Due to the increasing trend towards digital results, the Government is widening the scope of acceptable evidence of previous qualifications so as to include print outs from awarding bodies’ online checking services. However, the Government is reserving the power to see the original certificates of qualification or transcript of results.

Appendix H, which sets out Tier 4 documentary requirements, has been updated to include only countries whose Tier 4 students have met strict risk criteria, including visa nationals for the first time. Another amendment is being made to Appendix H to allow nationals of these countries to benefit from different documentary requirements even if they apply from their country of residence, and not only when they do so from their country of nationality.

Changes relating to Academic Technology Approval Scheme (ATAS) clearance certificates

The ATAS (Academic Technology Approval Scheme) was introduced to help restrict the spread of knowledge and skills that could be used in the proliferation of weapons of mass destruction (WMD).

Part 15 is being amended to delete the reference to “in excess of 6 months”. Students who undertake a period of study or research, of any length, in one of the subjects listed in paragraphs 1 or 2 of Appendix 6 of the Immigration Rules, at an institution of higher education where this forms part of an overseas postgraduate qualification, will be required to obtain an ATAS certificate.

Changes relating to Tier 5 of the Points-Based System

In Appendix N, the ‘Sponsored Scientific Researcher Initiative’ is being deleted. In Appendix N, the ‘UKRI – Science, Research and Academia’ scheme has been added to the list of approved Government Authorised exchange schemes. This scheme replaces the ‘Sponsored Scientific Researcher Initiative’ and provides expanded provisions for enabling overseas researchers to come to the UK, promoting international collaboration, knowledge exchange and skills transfer.

Changes relating to limited leave to enter for relevant Afghan citizens

There are two separate schemes to assist former Locally Engaged Staff in Afghanistan: the ex-gratia redundancy scheme and the Intimidation policy.

  1. The exgratia scheme currently caters for those who were made redundant as a direct consequence of the UK military drawdown, having served for at least a year on the front line. The intimidation policy supports all staff whose safety is threatened in Afghanistan due to their work with the UK, including those who do not qualify under the ex-gratia scheme. The requirements to be met for limited leave under the exgratia scheme are set out in Immigration Rules, but when the schemes were first introduced there was no specific provision covering limited leave for anyone who may be relocated to the UK under the Intimidation policy, or to allow individuals relocated under either scheme to apply for settlement.
  2. That is why new Immigration Rules are being introduced to cover anyone who may be granted limited leave to enter under the Intimidation policy, and to provide a specific route to settlement for relevant Afghan nationals and their immediate family granted leave to enter under Immigration Rules 276BA1 to 276BS1. The new provisions will introduce requirements that must be met for settlement to be granted, and make clear that those who wish to settle here, following a period of limited leave, will be able to do so providing they meet the relevant requirements in the Rules. Those who relocated to the UK will need to make an application for settlement, which will be free of charge, before their period of five years limited leave expires.
  3. The ex-gratia scheme offers relocation in recognition of the commitment, bravery and significant contribution that local staff made whilst working with UK Armed Forces in dangerous and challenging situations. Relocation to the UK is offered as an option to staff who faced particular danger in their role; other staff are offered financial or training packages.
  4. On 11 June, the Defence Secretary, Gavin Williamson, announced plans to expand the ex-gratia relocation scheme to recognise and honour the service of those made redundant before 19 December 2012. To implement this quickly the new Rules also extend the eligibility criteria by six years, which provides for all interpreters who were made redundant, having served for at least a year on the front line, from May 2006, to be eligible to come here along with their immediate family members. Under the Intimidation policy, the Ministry of Defence continues to provide support in Afghanistan, including security advice, financial assistance or relocation to a safer part of the country. In the most serious cases, the Home Office may determine that an Afghan locally engaged staff member is in need of relocation to the UK.
  5. The changes to the Afghan locally engaged staff rules are expected to have a positive effect on those eligible to apply, and to provide clarity on the route to settlement. The new Rules put beyond doubt that those granted limited leave for five years under Immigration Rules 276BA1 to 276BS1, will be able to apply for settlement should they wish to remain in the UK. The Government will also make changes to the Immigration and Nationality (Fees) Regulations at the appropriate time, to ensure that such applications are free of charge.

Changes relating to section 67 of the Immigration Act 2016 leave

Section 67 of the Immigration Act 2016 requires the Government to relocate to the UK and support a specified number of unaccompanied children from Europe. In line with this provision to the Immigration Act 2016, and following consultation with local authorities, the Government set the specified number at 480.

The spirit of the Parliamentary debates at the time of the Act’s passage, and the Secretary of State’s statutory obligation towards these children – ‘to relocate and support’ – is interpreted as rationale for granting a bespoke form of leave to this cohort over that which is granted to asylum seeking children who arrive in the UK via other routes (e.g. clandestinely) who, following an assessment of their asylum claim, do not qualify for international protection in line with the 1951 Refugee Convention or humanitarian protection leave.

The Government interprets the obligations under section 67 of the Immigration Act 2016, due to the requirement to ‘relocate and support’ as being more akin to the requirements on the state for providing protection and support to those who are granted refugee leave in the UK. We are therefore laying Immigration Rules to create a new form of leave – ‘section 67 of the Immigration Act 2016 leave’ – for those children transferred under section 67 of the Immigration Act 2016 who do not qualify for leave under the current Immigration Rules (either as refugees or other protection-based leave). Individuals who qualify for section 67 of the Immigration Act 2016 leave will have the right to study, work, access public funds (claim benefits and housing support) and healthcare, and apply for indefinite leave to remain without paying a fee after five years.

Changes relating to family life

The following changes and clarifications are being made to the Immigration Rules relating to family life:

  1. To confirm that an adopted child with limited leave under the family Immigration Rules and who is aged 18 years or above, must meet a Knowledge of Language and Life requirement before being eligible to apply for settlement.
  2. To remove reference to tax credits from the specified evidential requirement for dividend vouchers.
  3. To clarify that a person applying as a partner or parent under the 5-year route of Appendix FM, cannot rely on paragraph EX.1. exceptions to certain eligibility requirements, and must instead meet all eligibility requirements at every application stage to be granted on a 5-year route, and to settle after 5- years.

New indefinite leave to remain rules for ECCA workers and business persons and their dependants

  1. The European Communities Association Agreement (ECAA) was set up, under the Ankara Agreement on 12 September 1963, with the general aim of promoting economic relations between Turkey and the European Economic Community and supporting the eventual accession of Turkey to the European Economic Community. The UK became an automatic signatory to the ECAA when it joined the Community in 1973.
  2. Under the Agreement and its associated Protocols, there are specific provisions (commonly referred to as the “standstill clause”) made for rights of access to the labour market for Turkish workers, and rights to establish a business, with conditions which are more favourable than those afforded to other third country/non-EU nationals. This had the effect of preserving the relevant parts of the Immigration Rules as they stood in 1973 for relevant applicants.
  3. In March 2017, the Upper Tribunal confirmed that the “standstill clause” did not apply to indefinite leave to remain in the UK for ECAA business persons. The Court of Justice of the European Union (CJEU) had already determined as such for ECAA workers. As a result, the ILR route for business persons was closed on 16 March 2018.
  4. The Government is introducing a new category within the current Immigration Rules that will provide a route for Turkish ECAA business persons, workers and their family members who wish to obtain ILR in the UK. The new ILR provision will recognise time spent as either an ECAA business person or as a worker (or equivalent Points Based System routes), as long as the most recent period of leave was under the ECAA.
  5. For dependants, children will be granted ILR in line with the main applicant where the relevant criteria are met, whilst spouses, civil partners and unmarried partners will require five years residency, in line with other Points Based System routes, and to meet associated eligibility requirements.
  6. In line with the Points Based System routes, the Government is also introducing a new category, for family members of ECAA workers or business persons to apply for further leave to remain (three years) to enable them to reach the five year residency requirement. This will enable the main applicant to obtain ILR at the earliest opportunity (five years) and their spouse or partner to qualify subsequently.
  7. Limited leave will also be available to a specified cohort of dependants currently in the UK without leave. This will only apply to individuals who were unable to obtain indefinite leave to remain at the time their ECAA dependant leave expired, due to the two year requirement in the ECAA ILR policy in force before 16 March 2018, and who were unable to obtain further limited leave due to their sponsor acquiring ILR, thereby no longer benefiting from the ECAA provisions.

The review clauses at the beginning of this Statement of Changes require the Secretary of State to review the operation and effect of all of the relevant Immigration Rules, including any rules amended or added by the changes in this Statement, and lay a report before Parliament within five years of 6 April 2017 and within every five years after that. Following each review, the Secretary of State will decide whether the relevant Immigration Rules should remain as they are, be revoked or be amended. A further Statement of Changes would be needed to revoke or amend the relevant rules.

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