Updates, commentary, training and advice on immigration and asylum law
New statement of changes to the Immigration Rules: HC 1118
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The government has published 205 pages worth of changes to the Immigration Rules. The changes are being phased in over the next few months, starting on 6 April 2022. Highlights include:
- Children who live in the UK for seven years can get immigration permission with settlement either immediately or after five years, rather than ten
- The promised changes to temporary business visas, including a new “secondment worker” category
- Introduction of the promised High Potential and Scale-up routes
- Changes to the no recourse to public funds regime in response to a High Court ruling
- Concessions on EU Settlement Scheme family permits are being written into the Rules proper
This is one of three separate articles on this statement of changes. Alex has covered the Points Based Immigration System stuff and Deborah the family and private life stuff. Here we cover everything else.
No recourse to public funds
Last May, the High Court ruled that government policy on denying benefits to migrants was in breach of the statutory duty to promote the welfare of children. The Home Office is now graciously making changes to reflect that judgment.
This involves a new paragraph GEN.1.11A. This currently stipulates that immigration permission as a partner, child or parent “normally” comes with no recourse to public funds. The exceptions are if the applicant is “destitute” or there are “particularly compelling reasons” relating to child welfare. The language is being softened to remove the “normally”, add an exception for “imminent destitution”, and make it just “reasons” that don’t need to be particularly compelling.
This takes effect on 20 June 2022.
EU Settlement Scheme
As Chris outlined a few months ago, dependent relatives of EU citizens living in the UK under the post-Brexit Settlement Scheme have been having trouble getting visas to join their sponsor. The Home Office had imposed a cut-off point on processing applications for family permits (1 July 2021) but then conceded that this was probably illegal and brought in holding measures allowing permits to be issued.
This concession is now being written into the Immigration Rules proper, “consistent… with our obligation under Article 10(3) of the Withdrawal Agreement”. The relevant text appears to be new paragraph FP8A in Appendix Family Permit:
The applicant will be granted an entry clearance under this Appendix, in the form of an EU Settlement Scheme Family Permit, where:
(a) the entry clearance officer is satisfied that the applicant is a specified EEA family permit case; and
(b) had the applicant made a valid application under this Appendix, it would not have been refused on grounds of suitability under paragraph FP7.
There follows the usual essay in the Annex to define “specified EEA family permit case”.
We get another definitional change in Appendix EU itself. Paragraph (d) of the definition of a “relevant naturalised British citizen” will now read:
meets the criteria contained in regulation 9A(2) or (3) as the dual national (“DN”) to whom those provisions refer (save for the requirement in regulation 4(1)(c)(ii) and (d)(ii) of the EEA Regulations for comprehensive sickness insurance cover in the UK and regardless of whether, save in conditions 5 and 6 in the table in paragraph EU11 of this Appendix and in conditions 2 and 3 in the table in paragraph EU11A, they otherwise remained a qualified person under regulation 6 of the EEA Regulations after they acquired British citizenship).
The text in red is new. It is good news for Lounes dual nationals, as “relevant naturalised British citizens” are also referred to. These are EU citizens who moved to the UK to exercise their free movement rights, became British, and kept their original citizenship. The change to the Rules means that such people may be able to sponsor family members under the Settlement Scheme despite not having Comprehensive Sickness Insurance in the past.
This is another reminder of the malign legacy of the CSI rule, which has evidently prevented at least a few families being reunited in the UK where they would otherwise have been allowed. The Court of Justice of the European Union has just ruled that demanding CSI was nonsense all along.
These and various other changes to the Settlement Scheme take effect on 6 April 2022.
People who have applied to move from a Student to a Graduate visa will now be allowed to start working straight away, while they wait for the application to be approved. New paragraph ST 26.6 provides:
A Student who makes a valid application for permission to stay under the Skilled Worker, or Graduate route, may start employment in a full-time permanent vacancy either up to 3 months prior to the course completion date (for the Skilled Worker route) or once they have successfully completed their course of study (for the Graduate route), provided all of the following apply:
(a) the Student is studying a full-time course of study at degree level or above with a higher education provider with a track record of compliance; and
(b) the application as a Skilled Worker, or Graduate, was made when the applicant had permission as a Student; and
(c) a decision has not been made on the Skilled Worker, or Graduate, application, or where a decision has been made, any Administrative Review against a refusal of that application has not been finally determined.
This plus a few other tweaks to the Student and Graduate routes kick in from 6 April.
Following successful lobbying by Big Daffodil, the Seasonal Worker route is being expanded. It will now allow the recruitment of labourers in the following sectors:
(vii) Bulbs and cut flowers, such as daffodils, grown outdoors and indoors; or
(viii) Pot plants, such as seasonal bedding plants like pansies, violas, germaniums and poinsettias; or
(ix) Hardy ornamental nursery stock such as Christmas trees, shrubs, roses, ornamental trees and perennials; or
(x) Tree and forest nurseries.
Given my own tastes in “ornamental horticulture”, I am all for it.
This is in addition to the existing fruit pickers etc and takes effect from 6 April 2022. So too does the removal of all traces of the temporary Seasonal Worker eligibility of pork butchers, poultry workers and HGV drivers: “the deadlines for applications on this route to work in these roles have now expired”.
Settlement for BNOs
On what appears to be a further outbreak of generosity on the already pretty liberal visa route for Hongkongers, those who don’t qualify for settlement will be allowed to stay anyway:
HK 64.1A. If the requirements for settlement are not met, but the
decision maker believes the applicant is likely to meet all the
suitability and eligibility requirements for permission to stay under
Appendix Hong Kong BN(O) (based on the route under which they
have or last had permission), the application will be varied by the
Secretary of State to an application for permission to stay on that route.
Although the Rules themselves do not say that a settlement application converted in this way into an extension application will be accepted, the explanatory notes do: “as long as the applicant pays the requested Immigration Health Charge, they will be granted permission to stay”.
Those interested in the BNO route should also note that further changes are coming down the track, as announced by Kevin Foster last month. This one takes effect on 6 April.
Variations and validity
If you thought we were already in the weeds, you ain’t seen nothing yet. The statement of changes also makes technical changes to the mechanics of applications for immigration permission.
For starters, paragraph 33A is no more. In theory this allowed people to vary a pending application from outside the UK, although the Home Office didn’t have to accept the attempt to vary. Now even the possibility is being closed off.
The explanatory notes tell us that the rules are also being changed to “extend the circumstances in which an application can be rejected as invalid”, which is always worrying. Specifically, someone applying as the dependant of a main applicant will see their application rejected without consideration if they fall foul of new paragraph 34DA:
An applicant applying as a dependent partner or dependent child must be applying as the partner or child of a person (P) where:
(i) P has made a valid application for entry clearance, permission to enter, permission to stay or settlement on the same route as the applicant and that application has not been decided; or
(ii) P has entry clearance, permission to enter, or permission to stay, on the same route as the route on which the applicant is applying; or
(iii) P is settled or a British citizen, providing P had permission on the route on which the applicant is applying when they settled, and the applicant had permission as their partner or child at that time.
These changes apply from 6 April 2022.
Paragraph EL 7.1 of Appendix English Language allows migrants who have studied English at school in the UK an exemption from taking an English language test. But as Alex has previously complained, this exemption only applies to four routes. It is now being extended to cover the family and private life routes; this takes effect from 30 May 2022.
This article was updated on 17 March to add links to the separate analysis of work visa and family migration changes.