New statement of changes to the Immigration Rules: HC 1534

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Table of Contents

A new statement of changes to the Immigration Rules was laid on 10 October 2018. There is some very welcome news, including more flexibility given to caseworkers on whether and when they can write to applicants to ask for missing documents. (Whether they will in practice or still refuse for minor mistakes is another matter.) In addition, the Home Office will no longer insist on seeing original documents: copies may be provided. So far, all in line with the Secretary of State’s plan to “introduce an immigration system that allows staff greater freedom to use their common sense”.

That said, it is difficult to savour the moment when, on the same day, the Home Office confirms that the Immigration Health Surcharge will double in December, making the fees to remain lawfully in the UK less and less affordable. The Secretary of State gives with one hand and takes away with another…

With the usual proviso that practitioners should read the new rules in full, below are the main changes to be aware of. Except where otherwise indicated, these changes will come into force on 5 November, although the statement of changes does not specify whether it is for applications submitted after 5 November, or decided after 5 November. For the avoidance of doubt, practitioners may want to assume it is for applications submitted after 5 November. As the changes are generally in favour of the applicant, there is no incentive to submit an application before then, deadline permitting.

Making a valid application, fee waivers and passports

Paragraph 34 of the Rules, which deals with valid and invalid immigration applications in the UK, is amended to reflect the introduction of a new in-country application process from next month. The bottom line is they are trying to go digital — the explanatory memorandum says “the ambition is that most applicants will apply online” — and most people will be able to keep their original documents. Accordingly:

Book your place now

applicants will no longer need to submit passport-size photographs. This has probably been a redundant requirement for some time, given that applicants are already required to enrol their biometric information, which includes a photograph, as part of their application.
paper forms can only be used if submitting the application by post. Those who will want to use the Premium Service Centre, or its future equivalent, will need to apply online.
the rules now state that, to make a valid application:

an applicant must comply with the application process set out on the visa and immigration pages on GOV.UK and in the invitation to enrol biometrics which is provided as part of the application process in relation to –
(a) making an appointment to provide biometrics, and
(b) providing any evidence requested by the Secretary of State in support of their application

We will need to wait for the relevant updated gov.uk pages to shed more light on what this means…

where an applicant has not submitted a “valid” application, the Secretary of State may give them an opportunity to rectify the mistake within a specified timescale. It used to be that they could only give 10 working days, but they now have discretion to give more time — or less I suppose!
the Secretary of State now has discretion to consider an invalid application as valid, provided the specified fee was paid and proof of identity submitted (or, if not submitted, one of the exceptions to submit proof of identity applies – see paragraph 34(5)). For example, if an applicant were to submit the wrong form, or submit an incomplete form, the Secretary of State can still consider the application as if it had been submitted on the right form.
the Secretary of State will return an applicant’s ID while the application is outstanding, unless he “considers it necessary to retain it”. This is welcome news. Not having a passport can be problematic: it is needed to give notice of an intention to marry or sit the English language / Life in the UK tests. However, leaving the UK while an application is pending will still result in the application being treated as withdrawn.
those who want to apply for a fee waiver can apply online. They will need to make the fee waiver application first. Once that has been considered and they have received a decision by the Home Office, they will then need to make the application for leave to remain within 10 days. As long as the application for leave to remain is made within those 10 days, the date of the application will be the date of the fee waiver, therefore protecting those who make fee waiver applications on time from becoming overstayers.

Example

David is a South African national. He is in the UK with leave to remain on the basis that he is the parent with sole responsibility of a British child. His leave is due to expire on 8 November.

David is destitute and cannot afford to pay the Home Office fees. On 6 November, two days before the expiry of his leave, he applies for a fee waiver. On 26 November, he receives a letter from the Home Office confirming that his application for a fee waiver has been successful and he has 10 days to submit his application for leave as a parent. As long as David submits his application within those 10 days, the date of application will be considered to be 6 November. This means he has made an application in time and continues to be lawfully present in the UK until a decision is made on the application for leave.

If the application for a fee waiver is refused, David can still avoid becoming an overstayer if he applies within 10 days assuming he can find the money to pay the fee. Again, the date of application will be considered to be 6 November.

These changes will take effect on 1 November, and will apply to applications made on or after that date.

Calais leave

The explanatory note provides useful background to this change:

As part of the clearance of the Calais camp in October 2016, the Government transferred 769 unaccompanied children to the UK, 549 of whom were transferred to reunite with family here. All of those children claimed asylum on arrival in the UK. Now, after careful consideration, a number of these cases would fall to be refused under existing asylum and immigration rules.

This cohort of asylum seekers, who have been refused asylum, will now be able to apply for leave to remain in the UK relying on new paragraphs 325I to 325X. These rules only apply to those who were transferred to the UK, following a decision of the Secretary of State, the tribunal, or under the Dublin III Regulations, between 17 October 2016 and 13 July 2017 in connection with the clearing of the Calais migrant camp and for the purpose of being reunited with family in the UK.

In addition, applicants should not fall foul of suitability requirements, which include, among others, exclusion under the Refugee Convention and serious crimes.

Those successful will be granted five years’ leave, renewable for a further five years. They will be eligible to apply for indefinite leave to remain after ten years.

They will also be entitled to apply for a travel document, unless compelling reasons of national security or public order otherwise require, if they are unable to obtain a national passport.

Dependent children (that is children for whom the main applicant has parental responsibility) will also be granted leave in line with the main applicant.

EU Settlement Scheme

Changes to the EU Settlement Scheme include:

changes to reflect the second trial phase of the scheme, which will run from 1 November to 21 December 2018. Details of who will be eligible to apply during this second phase are at pages three to six of the statement of changes and summarised in this Home Office blog post. They include staff in the higher education, health and social sectors across the UK, and “vulnerable individuals” supported by specific local authorities and community groups.
the introduction of a right to administrative review. This will be available to those whose settled status application is refused on the basis that they do not meet the eligibility requirement and those who are granted limited (pre-settled) rather than indefinite (settled) leave to remain. Those refused on the basis of suitability or those whose application is rejected as invalid will not have a right to administrative review. They are better than typical administrative reviews:
- the application can be made from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending
- the deadline to apply is 28 days after receipt of the refusal (normally the deadline is 14 days for people applying from inside the UK, and 28 if they are applying from abroad)
- the reviewer can take into consideration documents submitted in support of the administrative review which were not available to the decision-maker at the time of the decision (this can only be done in rare circumstances for other administrative reviews) and can even take themselves the initiative to request further documents to an applicant
amendments are made to align the rights of “Surinder Singh” family members to the family members of EU citizens.

These changes come into place on 1 November.

Other changes

The list of subjects which require an Academic Technology Approval Scheme certificate is updated. The majority of the changes seem to reflect a technical change of name by the Higher Education Statistics Authority rather than a change in the subjects. These changes will take effect on 1 January 2019 for decisions made on or after that date.

Appendix KOLL now specifies the evidence that applicants must provide if they want a medical exemption from the requirement to pass the English language or the Life in the UK tests. People must provide a copy of the form published on gov.uk for this purpose (it is currently here, but might change), completed by a doctor who is either:

the applicant’s GP or a GP based in the practice with which the applicant is normally registered; or
a General Medical Council (GMC) registered consultant

This doctor must have “met with the applicant in person, assessed their ability to fulfil the requirements set out in this appendix, and supports their request for an exception from either or both elements of KOLL on the basis that they have a condition which would prevent them from satisfying the requirements for the foreseeable future”.