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New statement of changes to the Immigration Rules: HC 1779


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A statement of changes to the Immigration Rules was published today, 11 December 2018. The main changes are to introduce the pilot scheme for short-term agricultural workers that was announced earlier this year, and to expand the domestic violence settlement scheme to cover refugees. The more fundamental changes to Tier 1 announced last week — suspending and tightening up investor visas, replacing entrepreneur visas and introducing new start-up visas — are not taking place yet.

Mind you, the online file name of the statement of changes includes the term “Minus_T1_Suspension”, so clearly the Tier 1 changes were supposed to be in there originally. See Home Office confirms chaotic U-turn on suspension of Tier 1 (Investor) visas for an account of the farcical events of the past week.

Except where indicated otherwise, these changes come into force on 10 January 2019, and will apply to applications made on or after that date.

Expansion of domestic violence rules to spouses of refugees

Under existing rules, the Home Office will allow someone who has come to the UK under Appendix FM to stay in the country permanently if the relationship breaks down because of domestic abuse. But as Frank Jarvis noted on this blog only the other week, this route is not currently open to partners of refugees. This is despite a ruling of the Court of Session in May 2016 that this state of affairs constituted discrimination contrary to the European Convention on Human Rights. (Rather cheekily, the explanatory memorandum accompanying the statement of changes says that the case was decided in 2017, which understates the enormous delay in complying with the judgment.)

As a result of the statement of changes:

eligibility for indefinite leave to remain, as a victim of domestic abuse under paragraph E-DVILR.1.2 and 1.3, is being clarified to include partners of people with refugee status who have not yet been granted ILR.

A good day for victims of domestic abuse, and indeed for Lesley Irvine, who represented Mrs A in the Court of Session (instructed by Drummond Miller).

The terminology has also been updated. Appendix FM will now refer throughout to “domestic abuse” rather than “domestic violence”. We understand that this is to recognise that domestic abuse can exist without physical violence.

Seasonal worker pilot

The seasonal worker pilot will be run under the existing Tier 5 (Temporary Worker) category. It will be open to applicants over the age of 18. In addition to making some amendments to Part 8 relating to dependants, and Part 6A of the Immigration Rules (in particular the part under the sub-heading “Tier 5 (Temporary Worker) Migrants), the statement of changes introduces a new appendix into the Rules, Appendix U. This reads in its entirety:

Immigration Rules Appendix U: Seasonal Worker Scheme

Approved Tier 5 seasonal worker scheme:

Name of schemeScheme summaryName of overarching body (sponsor)Area of UK covered
Seasonal Workers PilotThis is a pilot scheme, enabling non-EEA migrant workers to come to the UK to undertake seasonal employment in the edible horticulture sector
  • Concordia (UK) Ltd
  • Pro-Force Limited
 All UK

“Edible horticulture sector” (namely vegetable, fruits, vines and mushrooms) and “seasonal work” are defined in the introduction to the Rules. Seasonal work is defined as “employment which fluctuates or is restricted according to the season or time of the year”.

The explanatory memo says that “the formal date of implementation for this pilot will be announced in due course”.

Successful applicants will be issued leave starting 14 days before the beginning of the period of engagement and ending 14 days after the end of that period of engagement, but never for longer than six months in any 12-month period. They will not be allowed to carry on any other work than the work they are being sponsored for. It also seems that they will not be allowed to be accompanied by their family members to the UK.

A number of changes are made to the routes relating to Tier 2 and Tier 5 sponsored workers. In particular:

  • Tier 5 (Religious Worker) and Tier 5 (Charity Worker) migrants will be subject to a 12-month cooling off period. This means that, after they have left the UK on the expiry of one of these visas, they will need to wait 12 months before re-entering the UK in the same category. According to the explanatory memo, this change will “prevent migrants from applying for consecutive visas, thereby using the routes to live in the UK for extended periods, so as to reflect the temporary purpose of the routes better”.
  • Tier 5 Religious Workers, who may come to the UK for up to 24 months to do religious work, such as preaching or working in a religious order, will no longer be able to come to the UK to do “preaching and pastoral work”, or take the role of “minister of religion”. Those who do wish to come to the UK as Ministers of Religion will, instead, need to be sponsored as Tier 2 (Ministers of Religion) migrants. According to the explanatory notes, “this will ensure that the needs of religious establishments are still catered for within Tier 2, whilst drawing a clear distinction between the two routes and ensuring that no loophole exists within Tier 5”.
  • Changes have been made to allow Tier 2 and Tier 5 migrant workers to engage in lawful strike action and take unpaid parental leave without their immigration status being affected. This was already reflected in the guidance, as highlighted by Nichola on this blog back in July.
  • The definition of “professional sportsperson” is more detailed, setting out more explicitly the indicators that will be considered when assessing whether a migrant is playing sport in any capacity, other than that of an “amateur”. Practitioners making applications for sportspersons should make sure they are familiar with the new definition.
  • Tier 2 (Intra-Company Transfer) migrants will be need to apply for an Academic Technology Approval Scheme (ATAS) certificate if they wished to study a postgraduate qualification in certain sensitive subjects.
  • The rules now include reference to the appropriate salary to be paid to nurses or midwives who are undertaking the Observed Structured Clinical Examination (OSCE) to obtain Nursing and Midwifery Council registration until registration with the Nursing and Midwifery Council Registration is either successfully completed, otherwise closed, or after 8 months of the stated employment date, whichever is earlier. The relevant salaries are between £16,597 and £17,760 (there are different rates in England, Scotland, Wales and Northern Ireland).
  • A code of practice has been inserted for organisations wishing to sponsor fashion models. According to the explanatory memorandum, this was the result of a “collaboration with Industry representatives and the British Fashion Council”. The code includes a set of criteria to which sponsors must adhere when recruiting top models, commercial models and “new faces”. A British Fashion Council approved panel will be put in place to endorse specific models with real potential that are unable to fulfil the required criteria. Bottom line: if you are representing models or those sponsoring models, make sure that you are familiar with this new code of practice.
  • In Appendix N, the list of organisations permitted to directly sponsor researchers under the ‘UKRI – Science, Research and Academia’ scheme has been expanded. In addition, the description of the ‘Sponsored Researchers’ scheme has been amended to “describe more accurately the activities permitted under this scheme”.

Tier 1 (Exceptional Talent)

The endorsement of arts applicants, which was widened in July to include those in the fashion industry, has been further widened to include those in the field of architecture. These applicants will be assessed by the Royal Institute for British Architects operating within the endorsement remit of Arts Council England.

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In addition, the grants of entry clearance will include an additional four months so that, for example, an applicant requesting 1 year entry clearance will be granted 1 year and 4 months entry clearance.

Finally, some changes are being made to the criteria for endorsement by each Designated Competent Body. Practitioners making these applications should read the new Rules in full, but the changes I have noted are that “awards” are further defined as “awards of merit, rather than monetary awards such as grants and bursaries” and that those applying to Tech Nation will need to submit their supporting documents online rather than by post.

Tier 4 – Students

The explanatory memo states that changes to the Tier 4 route are made to reflect changes “arising from the higher education reform in England, including the introduction of the Office for Students, and so that institutions in the Devolved Administration have the same ability to offer privileges to their students as institutions in England”. I am not familiar with that education reform, so that I am not sure I can understand all of the changes, but it seems that more students will be allowed to work and bring their dependants to the UK, provided they are sponsored by an institution with a “track record of compliance”, defined as “four-year track record of immigration compliance and Educational Oversight”

These changes will not come into force until 1 August 2019 so hopefully if there are major changes we immigration practitioners need to be aware of, they will become clearer closer to the time.

Coming into effect on 10 January are some minor changes to Appendix C, relating to evidence of funds for students. These are to make clear that Tier 4 applicants, who rely on student loans or funds from official financial sponsors, are not required to demonstrate that the funds have been held for a period of 28 consecutive days.

Other changes

The rules relating to ancestry visas have been amended. An applicant does not need to submit evidence relating to the reason for their absences from the UK during the five-year continuous period leading to indefinite leave to remain (this was an “erroneous reference” in the first place apparently).

The rules introduce a paragraph relating to the Tier 5 (Youth Mobility Scheme) ensuring that in the event of a future delay in setting the annual quotas, a portion will automatically become available to partner countries, ensuring that the route continues to function.

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Nath Gbikpi

Nath is an immigration lawyer at Leigh Day Solicitors and a Visiting Fellow in Practice at the London School of Economics.