Statement of Changes in Immigration Rules HC 1154

Interestingly, by virtue of Statement of Changes in Immigration Rules HC 1154, the Home Office claims to extend its commitment to protect and support the most vulnerable people while simultaneously purporting to encourage highly talented students and workers to remain in the UK. The changes, some of which are outlined below, will enter into force on 6 July 2018. Of course, the key question is whether you would ever trust the Home Office with your future? For example, the fact that skilled migrants from Pakistan are still being singled out for removal because of tax discrepancies of as little as £1.2 – despite Sajid Javid’s pledge to end the heinous operation of paragraph 322(5) – can hardly inspire public confidence in the Home Office and it is even more shocking that the foreign secretary Boris Johnson is advocating a “f*** business” approach to Brexit. Such ugly events have not deterred the government from peddling its propaganda as it seeks to camouflage the outrage caused by recent scandals. The Immigration Rules will include a new form of leave for children under section 67 of the Immigration Act 2016 or the Dubs amendment. This change will ensure that 480 children who do not qualify for refugee or humanitarian protection leave will still be able to remain in the UK in the long-term and beneficiaries of the change will be permitted to study, work, access public funds and healthcare and apply for settlement after five years without a fee.

Of course, the irony is that Lord Dubs is still busy campaigning for the UK to take in greater numbers of children. The changes also implement the official pledge that Afghan interpreters and their family members who have relocated to the UK can apply for ILR after 5 years’ residence. It is said that 1,100 individuals will benefit from this exercise and that the additional implementation of these changes will widen the scope of the ex-gratia redundancy scheme to acknowledge and honour the service of those made redundant before 19 December 2012 with the result that up to 40 additional Afghan interpreters and their family members will be eligible to relocate to the UK. As everyone knows, the NHS is heavily dependant on foreign talent and most of the time the only indigenous white British people we see in hospitals in urban areas are the patients or the non-medical staff. The deficit of doctors is quite acute and embracing that reality, these changes remove doctors and nurses from the Tier 2 (General) visa restrictions. They also extend the Tier 1 (Exceptional Talent) visa to include leading fashion designers.

Moreover, exceptional persons will be able to have their application assessed by the British Fashion Council under the endorsement remit of Arts Council England (ACE), one of the existing five endorsing bodies for this particular category. Under ACE’s remit, the Tier 1 (Exceptional Talent) scheme has been expanded to include a pool of TV and film applicants. The scheme, which is open to 2,000 people annually, presently covers leading talent in the areas of science, humanities, engineering, medicine, digital technology or the arts. Since the UK has been struggling to attract students to its universities because of the hostile environment, the Home Office is expanding the number of countries from where students will be able to take advantage of a streamlined application process. There are many microscopic changes made by way of HC 1154 some of which are considered in this post.

Students

Moreover, students from a further 11 countries, including China, will be able to provide fewer documents when applying for Tier 4 (General) visas. However, students from the selected countries still need to meet all requirements under Tier 4 and UK authorities reserve the right to request this evidence in full and will conduct snap checks in a random sample of applications.

Turkey and ECAA

Further changes to the rules entail a new settlement category for business people from Turkey, workers and their families who are in the UK under the EU-Turkey European Communities Association Agreement (ECAA). Such persons will be in a position to settle in the UK after 5 years as either an ECAA business person or ECAA worker (or equivalent points based system routes), if their most recent period of leave was granted under the ECAA. The rules will also allow Electronic Visa Waiver (EVW) holders to present their EVW in a digital format for the first time. Arriving passengers will be permitted to present their EVW in an electronic or printed format to carriers upon departure and to the Border Force upon arrival.

Exceptions for Overstayers

Changes to the text of paragraph 39E (exceptions for overstayers) will mean that the rule will no longer allow applicants with a failed application to be able to make any additional applications. The change will close the loophole of making a further application which of course had benefitted a great many people who made a mistake in an application. Moreover, paragraph 320(7BB) sets out the specific circumstances in which previous periods of overstaying should be disregarded. The amendment to this rule to means 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).

Tier 1 Investors  

In the Tier 1 space, investors must invest at least £2 million in the UK and HC 1154 requires applicants 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. As evidence of their investment, applicants must currently submit portfolio reports signed off by a financial institution regulated by the Financial Conduct Authority (FCA). It is not possible for us to overlook the fact that the FCA is a weak and ineffective entity just like its predecessor Financial Services Authority which was a “sleeping policeman”. Among other things, these days the FCA is under fire for diluting its premium listing rules to accommodate the stock market floatation of Saudi Aramco. It is quite odd that despite the failings of these entities, people running the financial word still glorify and worship them.

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. As for entrepreneurs, who must have either £200,000 or £50,000 funds to invest in their businesses, amendments are being made to (i) clarify where letters from legal representatives confirming signatures are required, and (ii) restore a provision for accountants to confirm that investment has been made on an applicant’s behalf.

Tier 2 of the PBS

The Tier 2 (General) allows UK employers seeking to recruit skilled workers from outside of the EEA. Since the Conservatives came to power in May 2010, it has subject to an annual limit of 20,700 places, divided into monthly allocations. This was in fact part of Theresa May’s pet project of reducing migration to the tens of thousands. Victims of these complex rules include a great many people. For example, I know numerous financial firms that are suffering badly because they cannot sponsor migrants from Canada and the US because of restrictions on the annual number of certificates of sponsorship. Other sectors are suffering as well and the financial services sector will be dealt a huge blow if “passporting rights” are lost with Brexit.

The changes enacted by HC 1154 will not help everyone and will only exempt doctors and nurses from the Tier 2 (General) limit and the Home Office thinks that this will liberate spaces for in the limit for other important roles. However, given the prevailing situation for monthly allocations under Appendix A (Attributes) for monthly allocations whereby relying on paragraphs 83A and 83B, the Home Office can increase the minimum points (21) required for a restricted certificate of sponsorship to be issued depending on the total number of applications made. So the high degree of uncertainty prevailing in the existing circumstances is quite close to Lord Dyson’s distinction in Alvi [2012] UKSC 33 about a rule becoming a “chimaera”.

Indefinite Leave to Remain

ILR in work categories 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. HC 1154 makes the following changes in respect of ILR. 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.

Section 67 of the Immigration Act 2016

Under section 67 of the 2016 Act, the government must relocate to the UK and support a specified number of unaccompanied children from Europe. In line with this duty, and after consultation with local authorities, the number was set at 480 by the government. The government explains that it interprets the statutory obligation as rationale for granting a bespoke form of leave to this category in addition to 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 Refugee Convention 1951 or humanitarian protection leave. Persons who qualify for section 67 leave will have the right to study, work, access public funds (claim benefits and housing support) and healthcare, and apply for ILR without paying a fee after five years.

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

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Brexit, Children, Exceptional Talent, Financial Services, Immigration Act 2016, Immigration Rules, Investors, PBS, Settlement, Students, Tier 1, Tier 2, Tier 4 and tagged , , , . Bookmark the permalink.

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