Kaleidoscopic Changes in Immigration Rules Continue

Statement of Changes in Immigration Rules HC1025 brings further kaleidoscopic changes to the existing abyss of legal nonsense surrounding visas for the UK. Ahead of the impending general election, some unwitting politicians are demanding an “Australian style points-based system” of immigration in the UK. Oddly, claims that there is no points-based system (PBS) at the moment are being aired all the time. It is quite alarming that politicians can make such claims on television because points-based immigration applications, which in distinction to their aim have produced “whirlwind” litigation, were introduced way back in 2008. Indeed, some of the changes in HC1025 are directed at bringing changes to the PBS. As for limits, it is also the case that Tier 2 (General) has been subjected to an annual limit of 20,700 persons, i.e. a “cap”, for some years now. Yet, insofar as political promises are concerned, the attempt to bring net migration down to the tens of thousands has proved to be a fool’s errand.

HC1025 produces multifarious changes in relation to the rules. For example, it streamlines the fifteen existing visitor routes to just four – namely, standard visitors, visitors for marriage or civil partnership, visitors for permitted paid engagements and transit visitor. The changes in the 200 plus page document enter into force at more that half a dozen points in time over the next two months and 27 February, 6 April and 24 April appear to be key dates. Some of the developments create interchangeability of purpose for visitors and enable them to carry out different types of activities on the same visa.

Overview

The changes aim to introduce a single rulebook for visitors relating to entry and remaining, suitability grounds for refusal and cancellation of visas or leave, eligibility and curtailment. Moreover, HC1025 amends the circumstances under which a claim for asylum may be treated as implicitly withdrawn and it equally amends the requirement to grant a minimum of five years leave to any person granted asylum or humanitarian protection.

The list of Tier 5 Government Authorised Exchange schemes has been updated and the list of approved English language tests in Appendix O has also been updated. Changes relating to the validity of applications and clarifications of the rules relating to family and private life are also part of the package. The rules have also been modified to incorporate compulsory screening for active pulmonary tuberculosis for migrants coming to the UK for over six months to accurately reflect the details of screening providers overseas and clarifying requirements for certificates. Other changes empower caseworkers to invite persons with limited leave to interview or prove by way of evidence that they are complying with the conditions of their leave.

The Home Office has expressed regret about not giving twenty one days’ notice and has explained that the reduced notice period aims to preclude a spike in abusive applications by PBS applicants who, in order to preserve their right of appeal, would have made their applications early so as to delay leaving the UK. In comparison, the new administrative review process will be more advantageous in terms of cost-effectiveness and speed.

The changes extend the rules on when and how a person may apply to have a casework error in an eligible decision corrected by administrative review and the changes allow applications for entry to be refused if, when requested, a person fails to provide an overseas criminal record certificate. In order to compliment criminality checks and the general grounds for refusal, and ensure that entrants to the UK do not have serious or recent criminal convictions, the changes introduce a new requirement for those seeking entry to UK to provide a criminal record certificate from any country in which they have been resident for 12 months or more in the past decade. Exemptions assist persons aged 17 or under or where the concerned authorities are unable to provide certificates. (The checks will only apply in circumstances where the applicant is asked to supply certificates in support of their application.)

Rebranding of the student visitor rules to extend conceptual clarity for persons undertaking short courses and of the “parent of a child at school” route as “parent of a Tier 4 (child) student” are also a part of the package. The terminology in relation to “B-rated sponsors” ratings and interim limits in Tier 4 is being removed because it is obsolete.

Visitors

Appendix V: Immigration Rules for visitors, a thirty-page document, will apply from 24 April 2015 and it will replace part 2 (persons seeking to enter or remain in the UK for visits) of the rules. Under Appendix V, visitors are persons coming to the UK, usually for up to six months, for a temporary purpose, i.e. tourism, to visit friends or family or to carry out a business activity. They are unable to work or study in the UK unless the visitor rules permit it. Each visitor must satisfy the requirements of the rules, regardless of whether he or she is travelling as a family group, a tour group or a school party.

Definitions of terms and phrases used in Appendix V are located in one of its sub-appendices, namely Appendix 1 and defined words are expressed in italics. Appendix V consists of 9 parts; V1 (entry to the UK), V2 (making an application for a visit visa), V3 (suitability requirements for all visitors), V4 (eligibility requirements for visitors (standard)), V5 (eligibility requirements for a PPE visitor), V6 (eligibility requirements for a marriage or civil partnership visit visa), V7 (transit visitor), V8 (extension of stay as a visitor), V9 (grounds for cancellation of a visit visa or leave before or on arrival at the UK border and curtailment of leave). Further sub-appendices are labelled as Visitors Appendix 1 (definitions and interpretation), Visitors Appendix 2 (visa national list), Visitors Appendix 3 (permitted activities for all visitors (except transit visitors)), Visitors Appendix 4 (permitted paid engagements) and Visitors Appendix 5 (permitted free festivals).

The standard visitor route allows entrants to undertake a range of activities and it consolidates numerous existing routes such as: general, business, child, sport, entertainer, visitors for private medical treatment, visitors under the Approved Destination Status (ADS) Agreement with China, prospective entrepreneur, and visitors undertaking clinical attachments, the Professional and Linguistic Assessment Board (PLAB) test for doctors and the Objective Structured Clinical Examination (OSCE) for lawyers.

Visitors Appendix 3 – applicable to standard visitors, visitors for marriage or civil partnership and visitors for permitted paid engagements – explains that it will:

  • allow visitors to carry out incidental unpaid volunteering for up to 30 days at a UK registered charity;
  • allow overseas trainers to deliver training to UK based employees of a multinational company, where the training is part of a contract to deliver global training to the international corporate group;
  • allow UK based organisations, who are not corporate entities, to provide training to overseas visitors on work practices and techniques that are needed for their employment overseas, where this is not readily available in their home country; and
  • expand the existing provision to allow overseas lawyers to advise a UK client on international transactions and litigation, provided they remain paid and employed overseas.

According to the Home Office, the new visitor rules intend “to introduce a new structure and style” of rule-making which purports to shift from rules in disarray to rules (for visit, work, study) that are compendiously located in one place so that they are “clearer and more accessible for decision-makers and applicants, particularly non-experts”. The government is at pains to emphasise that the purpose of the new visitor rules is not to prejudice genuine visits to the UK. Rather, the intention is to increase efficiency by way of enhanced flexibility because the old regime produced a multiplicity of potential visas with the result that there was no interchangeability of purpose: a separate visa needed to be applied for to carry out different types of activities; business visitor, tourist and visitor for medical treatment etc.

The rules on suitability requirements and grounds for refusal and cancellation are contained in parts 3 and 9 of the visitor rules. These parts cover the suitability requirements for all visitors, the grounds for cancellation of a visa or leave, before or on arrival at the UK border, and curtailment by reproducing the part 9 provisions of the rules; paragraphs 320, 321, 321A and relevant provisions of paragraphs 322 and 323. Where biometrics, information or medical reports are required and if, in the absence of a reasonable excuse, an applicant does not supply them then such a failure is a mandatory ground of refusal. The measure increases traction with the mandatory requirement to refuse a failure to attend an interview and better aligns the visitor rules with Appendix FM.

The rules as regards third party support are being relaxed and, rather than just family and friends, any third party in the UK will be to provide financial support and accommodation to a visitor. (Provided that the third party is legally present in the UK, or will be at the time of the visitor’s entry to the UK and can and will provide support to the visitor for the intended duration of their stay.)

The “definitions and interpretations” are silent on the meaning of “genuine visitor”. However, according to the eligibility requirements, this is taken to mean a person who (i) will leave the UK upon conclusion of his visit; (ii) does not intend to make the UK their main home; (iii) is genuinely seeking entry as a visitor for a permitted purpose that; (iv) will not undertake any prohibited employment, educational, marriage and medical activities; and (v) has sufficient funds to cover all reasonable costs in relation to the visit without working or accessing public funds. Save (i) reasonable expenses to cover the cost of travel and subsistence; (ii) prize money; (iii) limited billing; (iv) permitted paid engagements (PPE); and (v) paid performances, holders of the new breed of visitor visas shall be precluded from receiving payment from a UK source for any activities undertaken in the UK.

As regards child visitors, adequate arrangements must have been made for their travel to, reception and care in the UK. Their parent or guardian must confirm that they consent to the arrangements for the child’s travel to, and reception and care in the UK and the visa itself must either state they are accompanied and will be travelling with an identified adult or hold a visa which states they are unaccompanied.

Tier 1

In relation to the PBS theme, on the investment side, the changes also provide that prospective Tier 1 (Investor) Migrants must open a UK-regulated investment account before making an initial application. Similarly, in order to boost the robustness of the system the changes apply a “genuine entrepreneur” test to Tier 1 (Entrepreneur) extension and indefinite leave to remain applications and they shut down the Tier 1 (General) category for extension applications, and limit the ability of Tier 1 (General) Migrants to switch into the Tier 1 (Entrepreneur) category.

Persons in the Tier 1 (Exceptional Talent) category will be able to elect the length of their stay so that applicants who only wish to come to the UK for a limited time in this category will not need to pay the maximum leave period surcharge payment in relation to the NHS.

The Home Office thinks, and there is some force in this view, that the Tier 1 (Entrepreneur) category is beneficial to the economy but has been “heavily abused” in recent years. Therefore, a number of changes are being made in order to:

  • provide for applicants with business funding from a UK or Devolved Government Department, to make it clear that government funding by way of an intermediary public body may be accepted, provided that body confirms that the funds were made available by a UK or Devolved Government Department for the specific purpose of establishing or expanding a UK business.
  • expand the use of “genuineness” tests to obtain indefinite leave to remain to protect the route against abusive applicants and to safeguard genuine applicants.
  • restrict the ability of Tier 1 (General) Migrants to switch into Tier 1 (Entrepreneur) – but until 2018 the former can still apply for indefinite leave to remain without changing category.
  • clarify the rules regarding how investment funds may be spent, and the restriction on engaging in businesses principally concerned with property development or property management.
  • help counter abuse relating to the source of funds by requiring applicants relying on funds they hold themselves to provide evidence of the third party source of those funds in the event have held the funds for less than 90 days before making an initial application.
  • require all initial applicants to submit a business plan (not mandatory in the past).

In relation to the Tier 1 (Graduate Entrepreneur) route (which caters for endorsed graduates to establish one or more businesses in the UK), for superior alignment with the Tier 1 (Entrepreneur) category a change has been made to restrict applicants from engaging in property development or property management businesses.

The Tier 1 (Investor) route, which famously facilitates the entry of high net worth individuals into the UK, will be amended with the result that:

  • prospective investors will be required to open a UK-regulated investment account before making an initial application; the approach will ensure that due diligence checks on investors will be conducted by UK banks beforehand.
  • the minimum age of applicants is being increased from 16 to 18.
  • applicants will no longer need to invest additional capital if they sell part of their investments at a loss, but they will be required to maintain all their capital within their investment portfolios; the change intends to remove an unintended incentive for investors to invest in UK government bonds rather than to invest in UK companies.
  • the restriction on investing in companies principally concerned with property investment, property development or property management is being amended slightly.

Tier 2

Because of a partial review by the Migration Advisory Committee, the Shortage Occupation List (SOL) in Tier 2 of the PBS has also been amended. Along with the scheduled annual updates to minimum salary thresholds and appropriate salary rates for occupations in Tier 2, the changes are reflected in the long table in page 82 et seq in HC1025 and include:

  • changes to graduate occupations in the health sector for both the UK list and the additional Scotland list, including the addition of paramedics to the UK list;
  • changes to the existing entry on the UK list for overhead linesworkers in the energy industry; and
  • reclassification of some existing entries.

Further changes to the SOL will occur in the future in relation to recommended graduate occupations in the digital technology sector, for recruits of scale-up companies. To enable employers to sponsor paramedics from overseas to fill vacancies for which no suitable resident workers are available, the occupation of paramedic is being revised to National Qualifications Framework (NQF) level 6 from NQF level 4. The annual minimum salary thresholds and appropriate salary rates for individual occupations (as set out in codes of practice) are also being revised to match the changes in average weekly earnings for resident workers (a 1.2% annual increase based on the 12 months ending November 2014) and appropriate salary rates will also be applied to settlement applications by work permit holders.

Adjustments to the operation of the Tier 2 (General) limit are being made, although the overall limit is being held constant, to rebalance the system by increasing the number of places available at the start of the limit year from 1,725 to 2,550. In order to improve flexibility for businesses that need to transfer key staff for very short periods, the cooling off period will not apply to previous grants of Tier 2 leave of three months or less.

Domestic Workers

A detailed overseas domestic worker’s contract is contained between pages 43–51 of HC1025. It contains lengthier express terms about the employer providing the employee with suitable furnished accommodation, meeting UK building requirements and health and safety standards, for their exclusive use. The contract ensures that UK employment laws are met and that overseas domestic workers are paid in accordance with the national minimum wage regulations. It applies to both Overseas Domestic Workers and Tier 5 International Agreement workers employed as Domestic Workers in a Diplomatic Household.

The rules have been changed to require that, in leave to enter and leave to remain applications, caseworkers are satisfied that domestic workers will be paid in accordance with the National Minimum Wage Regulations (NMWR). HC1025 prevents employers using an exemption, allowing employers to decline to pay the minimum wage to those living as part of the family, in the NMWR that was designed for au pairs.

Asylum: ‘Withdrawn’ Applications and Settlement

Again, the abuse of the asylum system is at the core of the official rationale and in instances where a claimant is requested to complete an asylum questionnaire or provide a witness statement setting out reasons for the claim, and there is a failure to comply or the claimant leaves the UK without informing the Home Office of her/his intentions, the claim will be treated as withdrawn. It is said that these changes are in conformity with Directive 2005/85/EC.

Rather than refusing such claims, it is felt that the concerned asylum-seekers never genuinely intended to make a legitimate claim for asylum. Apart from being less work, the approach is seen as a way to filter out genuine asylum claims and trash bogus ones with the consequence that caseworkers will be able to deal effectively with “those applicants whose behaviour demonstrates a serious commitment to making a claim for asylum.”

Changes to delay settlement to those who have admitted a minor offence came into effect on 27 February 2015 and it is said that they will ensure fuller alignment, and enhance efficiency, with the requirements with the general grounds for refusal. Time restrictions on offences indicative of persistent offending have been updated to refuse settlement to those who have caused serious harm or are persistent offenders. Further filters around character, conduct and associations have been created for persons “undeserving of settlement in the UK” including persons exhibiting enhanced criminality or extremism (whose cases will be kept under review). Consequently, the authorities will be able to delay settlement to persons whose behaviour falls short of the threshold necessary for exclusion from the Refugee Convention 1951.

Administrative Review

Such reviews have been available in overseas PBS applications since 2008 and in in-country Tier 4 matters since 20 October 2014. As of 2 March 2015, administrative review will apply to all PBS decisions where the application was made on or after that date. In line with the commencement of section 15 of the Immigration Act 2014, from 6 April 2015, all decisions on applications for leave to remain under the rules will have a right of administrative review and not a right of appeal.

Administrative review will not be available in respect of refusal of entry clearance or a decision on an application for leave to remain in relation to (a) human rights claims – where an appeal is the appropriate remedy; (b) visitors and short term students – who should submit a fresh application because this costs the same (£83) as an administrative review; and (c) those given notice of liability for removal – in order to preclude the creation of “barriers to removal”, any further applications made by them will not attract administrative review.

Comment

As mentioned above, numerous other changes are afoot in relation to validity of applications and the rules on private/family life and the armed forces. Ultimately, these are best read in HC1025 itself. Indeed, entire days can be devoted to its study.

The Supreme Court has repeatedly called (see here and here) for scrapping parts of the Immigration Act 1971 to make things better – but in waging her political campaign, Mrs Theresa May chose to respond with the Immigration Act 2014. Similarly, recent demands for greater coherence made by the Court of Appeal have also not been taken seriously by the Home Office. Underhill LJ’s annoyance with the “rebarbative drafting” of the rules and his calls in Singh [2015] EWCA Civ 74 to bring common sense into the system, by making the drafting and presentation of the rules more accessible, seem to have fallen on deaf ears. In vain, the court had emphasised that:

49. … it is no doubt unrealistic to hope that every provision will be understandable by lay-people, let alone would-be immigrants. But the aim should be that the rules should be readily understandable by ordinary lawyers and other advisers. That is not the case at present. I hope that the Secretary of State may give consideration as to how their drafting and presentation may be made more accessible.

Underhill LJ’s remonstrations about the opaqueness of the system to the uninitiated and his objections to the use of the initial “A” before some of the paragraph numbers, such as paragraphs A277-A280, have been answered by the letter “V”. For her part, the hard line Mrs Theresa May has done well to show two fingers to the judiciary yet again. Perhaps she feels as if she is the reincarnation of Winston Churchill? Maybe, she too, will emerge victorious and win the war. Only time will tell and we shall see …

About mkp

Advocate High Courts of Pakistan
This entry was posted in Appendix FM, Asylum, Children, ECHR, Entrepreneurs, Exceptional Talent, Immigration Rules, PBS, Tier 1, Tier 2, Tier 4, Visitors and tagged , , , . Bookmark the permalink.

2 Responses to Kaleidoscopic Changes in Immigration Rules Continue

  1. mkp says:

    358. In Appendix AR, delete paragraph AR3.2 and substitute:
    “AR3.2 Subject to paragraph AR3.4, an eligible decision is:
    (a) A decision on an application made on or after 20th October 2014 for leave to remain as:
    (i) a Tier 4 Migrant under the Points Based System; or
    (ii) the partner of a Tier 4 Migrant under paragraph 319C of the Immigration Rules; or
    (iii) the child of a Tier 4 Migrant under paragraph 319H of the Immigration Rules.
    (b) A decision on an application made on or after 2nd March 2015 for leave to remain, as:
    (i) a Tier 1, 2 or 5 Migrant under the Points Based System; or
    (ii) the partner of a Tier 1, 2 or 5 Migrant under paragraphs 319C or 319E of the Immigration Rules; or
    (iii) the child of a Tier 1, 2 or 5 Migrant under paragraphs 319H or 319J of the Immigration Rules.
    (c) A decision on an application for leave to remain made under these Rules on or after 6th April 2015 unless it is an application as a visitor, or where an application or human rights claim is made under:
    (i) Paragraph 276B (long residence);
    (ii) Paragraphs 276ADE(1) or 276DE (private life);
    (iii) Paragraphs 276U and 276AA (partner or child of a member of HM Forces);
    (iv) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
    (v) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK;
    (vi) Part 11 of these Rules (asylum);
    (vii) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
    (viii) Appendix FM (family members), but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence),
    in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.

    AR5.2 (a) An eligible decision is a refusal of an application for entry clearance made on or after 6th April 2015 under the Rules unless it is an application under Part 3 of these Rules (short-term students) or as a visitor, or where an application or human rights claim is made under:
    (i) Paragraphs 276R and 276X (partner or child of a member of HM Forces);
    (ii) Paragraphs 276AD and 276AG (partner or child of a member of HM Forces) where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years’ reckonable service in HM Forces at the date of application;
    (iii) Part 8 of these Rules (family members) where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules) or has refugee or humanitarian protection status in the UK;
    (iv) Part 11 of these Rules (asylum);
    (v) Part 4 or Part 7 of Appendix Armed Forces (partner or child of a member of HM Forces) where the sponsor is a British Citizen or has at least 4 years’ reckonable service in HM Forces at the date of application;
    (vi) Appendix FM (family members),
    in which case the appropriate remedy is an appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than an application for administrative review.

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