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New statement of changes to the Immigration Rules: HC 17 (Borders Act)

New statement of changes to the Immigration Rules: HC 17 (Borders Act)

The Home Office has published a new statement of changes to the Immigration Rules (HC 17). It is largely focused on changes to the asylum system following the passage of the Nationality and Borders Act 2022 and the agreement with Rwanda to export refugees to that country. The changes come into force on 28 June 2022 unless otherwise indicated. That is the date on which key asylum provisions of the 2022 Act come into force (two months from when the Act became law, which was 28 April).

Asylum and humanitarian protection

Rwanda

The rules are being changed in several places to say that a claim for humanitarian protection can only be lodged in relation to the person’s “country of origin” rather than “country of return”. The explanatory notes say:

If individuals can make a humanitarian protection claim against country of return (which under the definition would include Rwanda) that would require an assessment of whether an individual is a refugee. That runs counter to the object and purpose of the Partnership, where responsibility for consideration of whether someone is a refugee is to be transferred to Rwanda.

For example, in paragraph 339C:

339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United  Kingdom;

(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return origin, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country…

These changes took effect at 4pm yesterday, 11 May 2022.

Inadmissibility

The sections of the Immigration Rules that deal with inadmissible asylum claims are largely being deleted altogether. These previously provided the legal basis for shipping people off to Rwanda but that is now dealt with in primary legislation via the 2022 Act. So, for example, paragraph 345C has been deleted:

345C. When an application is treated as inadmissible, the Secretary of State will attempt to remove the applicant to the safe third country in which they were previously present or to which they have a connection, or to any other safe third country which may agree to their entry.

The same legal effect being produced by, presumably, section 16 of the 2022 Act:

The fact that an asylum claim has been declared inadmissible under subsection (1) by virtue of the claimant’s connection to a particular safe third State does not prevent the Secretary of State from removing the claimant to any other safe third State.

Similarly, the Act provides for asylum claims from EU citizens to be rejected out of hand, so the relevant Rules are being deleted.

Differential treatment

There are also changes to implement the whole “two-tier refugee status” thing brought in by section 12 of the 2022 Act. Changes to Part 11 of the Rules include the following new paragraph:

339QA. Where the Secretary of State has granted an asylum applicant refugee status under paragraph 334, the asylum applicant may be granted permission to stay on a protection route at the same time as or as soon as possible after the grant of refugee status. Group 1 refugees and Group 2 refugees, as defined in section 12 of the Nationality and Borders Act 2022, may be granted different periods of permission to stay and subject to different conditions:

(i) where the asylum applicant is a Group 1 refugee, they will be granted refugee permission to stay for a minimum period of 5 years; and

(ii) where the asylum applicant is a Group 2 refugee, they will be granted temporary refugee permission to stay for a minimum period of 30 months, unless exceptional circumstances apply [emphasis added].

Permission to stay will be renewable upon application where the person still has and remains eligible for refugee status. Applications for further permission to stay under this Part should be made within the last 28 days of the applicant’s permission to stay.

Everyone granted humanitarian protection is getting this temporary 30 months’ of permission, rather than a five-year grant as today:

339QB. Where the Secretary of State has granted an asylum applicant humanitarian protection under paragraph 339C, the asylum applicant will be granted temporary humanitarian permission to stay at the same time as or as soon as possible after the grant of humanitarian protection. Permission to stay will be valid for a minimum period of 30 months. Permission to stay will be renewable upon application where the person still has and remains eligible for humanitarian protection. Applications for further permission to stay under this Part should be made within the last 28 days of the applicant’s permission to stay.

I must say that the plan to downgrade humanitarian protection in this way completely passed me by (naturally it did not escape Sonia’s notice) but it is really quite bad.

Those granted “temporary refugee permission” or “temporary humanitarian protection” will not be able to apply for settlement after five years under Appendix Settlement Protection. The introduction to that appendix is being changed to read:

Only those granted refugee status or humanitarian protection as a result of asylum applications made before 28 June 2022 or granted refugee status and refugee permission to stay on asylum applications [i.e. “Group 1” refugees] made on or after 28 June 2022, are eligible to apply on the settlement protection route.

Individuals who were granted refugee status and temporary refugee permission to stay or humanitarian protection and temporary humanitarian permission to stay following asylum applications made on or after 28 June 2022 are ineligible to apply on the settlement protection route.

This means, we think, that people in this position would not qualify for settlement for ten years, under the long residence backstop.

Family reunion

As we already knew, the second-class “Group 2” refugees will not normally be able to bring their families to join them under the refugee family reunion rules. The exception will be where “there are insurmountable obstacles” to living together outside the UK and “a refusal of their application would breach the UK’s obligations under Article 8 of the ECHR”.

It will also be possible for adult children to apply to come to the UK to be with a refugee parent where there are “exceptional circumstances”. This applies whether the sponsoring parent has proper refugee status, temporary refugee permission or humanitarian protection — so seems to be a liberalising of the rules, which currently don’t cater for adult children at all.

The core example of exceptional circumstances is:

(i) they are dependent on the financial and emotional support of one or both or their parents in the country of origin or in the UK; and

(ii) the parent or parents they depend on is either in the UK, or qualifies for family reunion or resettlement and intends to travel to the UK, or has already travelled to the UK; and

(iii)

(a) the applicant is not leading an independent life; and
(b) they have no other relatives to provide means of support; and
(c) they could not access support or employment in the country in which they are living and would therefore likely become destitute if left on their own.

See new paragraphs 352DB and 352FGA.

There is also an exceptional circumstances provision being added to Part 8 of the Rules, dealing with children under 18 hoping to join relatives (rather than parents) in the UK. It applies where the sponsor couldn’t maintain them without access to public funds. New paragraph 319XAA says:

… relevant factors when considering whether there are exceptional circumstances include:

(a) they have no parent with them; and

(b) they have no family other than in the UK that could reasonably be expected to support them; and

(c) there is an existing, genuine family relationship between them and the UK based relative; and

(d) they are dependent on the UK based relative.

In all these exceptional circumstances cases, the decision-maker should go on to consider whether refusing the family reunion application would be a breach of Article 8 of the European Convention on Human Rights. So basically this is bringing within the Rules applications that would previously have been outside the Rules.

Revocation

Refugee status “must” now be revoked if the person is convicted of a “particularly serious crime”, rather than “may be revoked” (paragraph 338A). A “particularly serious crime” means being sentenced to 12 months or more (section 38 of the new Act), down from two years.

Ukraine schemes

The explanatory memo highlights the immediate introduction of a consent rule for children being sponsored to join a parent or guardian in the UK under the Homes for Ukraine scheme. There is already such a requirement for the other two Ukraine schemes, but not Homes for Ukraine, presumably because it was not envisaged that parents would be using it to sponsor their own children. But there is nothing in the rules to stop parents invoking Homes for Ukraine to sponsor their kids if they don’t qualify as a Family Scheme sponsor (e.g. if not a settled migrant) so applying a parental consent rule consistently makes sense.

There is also a new rule for people who have arrived under Homes for Ukraine without attending a visa application centre abroad and need to complete the formal application process in-country:

UKR 11.3A Where an application under the Homes for Ukraine Sponsorship Scheme is varied to permission to stay under paragraph UKR 14.1, they must meet all the following requirements:

(a) the applicant must have provided any required biometrics; and

(b) the applicant must have provided a passport or other document which satisfactorily established their identity and nationality; and

(c) the applicant must be in the UK.

Finally there is a rewording of the notorious (in Ukraine visa advisor circles, at any rate) paragraph UKR 21.3, relating to the Ukraine Extension Scheme:

UKR 21.3. The applicant must have had permission to enter or stay in the UK on 18 March 2022, unless:

(a) they were had permission to enter or stay in the UK immediately before 1 January, but that permission has since expired; or

(b) they are a child born in the UK after 18 March 2022 to a parent who qualifies under this paragraph.

All these changes came into force at 4pm on 11 May.

Visa waivers

Citizens of El Salvador now need visas to come to the UK. The explanatory notes say that this is because asylum claims from Salvadorian nationals have risen 1750% since 2017, from 38 to 703. This has been done by adding El Salvador to the visa nationals list with effect from 4pm on 11 May 2022. There are transitional arrangements for people who had booked their flight to the UK before then and will be arriving no later than 8 June 2022.

Citizens of Bahrain and Saudi Arabia join other Gulf states in the electronic visa waiver scheme. There is a press release about this change, which kicks in from 1 June 2022.

CJ McKinney is Free Movement's editor. He's here to make sure that the website is on top of everything that happens in the world of immigration law, whether by writing articles, commissioning them out or considering pitches. CJ is an adviser on legal and policy matters to the Migration Observatory at Oxford University, and keeps up with the wider legal world as a contributor to Legal Cheek. Twitter: @mckinneytweets.