Alvi: The Aftermath …

In the wake of the Alvi [2012] UKSC 33 judgment, a new Statement of Changes in Immigration Rules CM8423  (“the statement”) came into force on 20 July 2012. Weirdly, the statement  spanning an overwhelming 288 pages  also corrects cross-referencing errors in Appendix FM (which was introduced into the rules earlier this month). However, in the present environment, typographical errors from a fortnight ago are the least of the Home Office’s latest woes. The statement’s confessed purpose is to “further” amend the rules in order to reflect the decision in Alvi – namely that any requirements which, if not satisfied by the migrant, would lead to an application for leave to enter or remain (“visa”) being refused must be included in the Immigration Rules and laid before Parliament in accordance with the procedure set out in section 3(2) of the Immigration Act 1971.

In bringing these changes so speedily, the government is regretful in breaking with Parliamentary convention to allow a minimum of 21 days before the changes enter into force “with immediate effect”. But from the government’s perspective, acting quickly is the only way to preserve the “integrity” of the Immigration Rules and protect them from further legal challenge.

Apart from the foolish, who believe that the points-based system (PBS) is a “box ticking exercise”, anyone who has ever applied for a PBS visa will be able to confirm that these applications were, and indeed still are, based on a wide range of specified documents and unwieldy bureaucratic jargon such as the resident labour market test (RLMT), occupational codes of practice and the shortage occupation list etc. In the past, the constant fluctuation of the terms within the various tiers of the PBS made it “flexible” for the UK Border Agency to impose nagging requirements on applicants which were devilishly tucked away in policy guidance. But all such things have finally been included in the Immigration Rules. The changes in the statement are highlighted below.

The Designated Competent Body criteria for Tier 1 (Exceptional Talent) – catering for “world leaders” in the arts and sciences – depends on endorsement from the Royal Society, the Royal Academy of Engineering, the British Academy or the Arts Council. The criteria are “agreed” between the bodies and the Home Office and, in contrast to an unpredictable list published on the UKBA website, these will be included in the Immigration Rules. This information is now in the new Appendix L.

Moreover, the RLMT and the occupational codes of practice (setting out appropriate skills threshold, salary and advertising media for each occupation) for the purpose of satisfying the RLMT have also been absorbed by the Immigration Rules.

Equally, the Shortage Occupation List for Tier 2 (General), which (like the occupational codes of practice) is recommended by the Migration Advisory Committee, has been set out in Appendix K of the Immigration Rules.

Applications for Tier 2 (Sportsperson) and Tier 5 (Temporary Worker – Creative and Sporting) by sports players and coaches require endorsement by the relevant UK Governing Body for their sport to confirm that they will be making a contribution to their sport at the highest level in the UK. Following Alvi, the list of recognised governing bodies has been included in the Immigration Rules; see Appendix M.

Tier 5 Government Authorised Exchange Schemes – a sub-category within Tier 5 (Temporary Worker) – are for applicants coming to the UK for particular research, training or work experience purposes. Various schemes (each requiring endorsement by the relevant Government Department as helping to meet its objectives and operating a sponsor licensed by the UKBA) exist in this sub-category. Previously, the Immigration Rules only set out the principles of this scheme and the requirements that needed to be satisfied and the list and details of the schemes connected with this route have now been incorporated into the Immigration Rules.

The list of English language tests operated by the UKBA in relation to applicants who must prove their English language proficiency to get a visa has also been included in the rules: see Appendix O.

Lists of financial institutions which are considered inadequate in verifying financial statements serving as evidence of funds for obtaining visas have also been set out in the Immigration Rules.

Amendments have also been made for general visitors coming to the UK to participate in archaeological excavations. The requirements for child visitors to be placed in private foster care have also been amended. Moreover, the rules for business visitors have been changed to include a comprehensive list of the reasons for entry under which individuals may enter as academic visitors. Likewise, the rules now contain an enhanced definition of the roles that qualify for entry as “film crew” under the business visitor route.

The requirements for visitors for private medical treatment and prospective entrepreneurs have also been amended. In the case of the latter, the required format for the supporting letter has been included in the rules.

Moving on to the rather interesting subject of family life, Appendix FM – not yet two weeks old itself – will now be kept company by an even younger relative called Appendix FM-SE (Family Members Specified Evidence) which incorporates into the rules the detailed requirements of the evidence demonstrating that financial requirements are satisfied. The details of how gross income is calculated are now found in the rules. Moreover, the amendments contain detailed information regarding the general provisions applying to financial requirements and exact evidential requirements to be met in respect of salaried employment and self-employment, evidence of contractual or statutory sick pay, maternity, paternity and adoption pay, non-employment related income, pensions and benefits received.

Insofar as marriage and civil partnerships are concerned, the requirements in relation to a particular marital status and the evidential requirements as to that status have been incorporated into the rules.

Finally, in connection to adult dependant relatives, the requirements to be satisfied to demonstrate a family relationship between the applicant and sponsor – such as details of the evidence required to demonstrate that the applicant requires long-term personal care as a result of age, illness or disability and is unable, even with the practical and financial help of the sponsor, to obtain the required level of care in their home country – are now contained in the rules.

In para 127 of Alvi, Lord Wilson (who was otherwise unenthusiastic) made his own unique observation that the drafting of section 3(2) of the Immigration Act 1971 contained an unintended error in punctuation. This meant that the provision made “no sense.” Although its correction did not solve the problem before the Supreme Court, Lord Wilson nonetheless proposed that the second comma in the crucial subsection “shall from time to time… lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to…” should be moved four words down the sentence after the word “him”. Then, the SSHD is required to “lay before Parliament statements of the rules, or of any changes in the rules laid down by him, as to…” and the provision makes “perfect sense”.

It is, indeed, difficult to disagree with his Lordship. The post Alvi Immigration Rules are available here.

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Alvi, Article 8, Dependants, Exceptional Talent, Immigration Rules, Tier 1, Tier 2 and tagged , , , . Bookmark the permalink.

2 Responses to Alvi: The Aftermath …

  1. riz says:

    such a nice informative post.. thanks dude

  2. atit says:

    Good post. so helpful

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.