On Friday 15 June, a new statement of changes was laid. Rather atypically, many of the changes are welcome news!

All changes will come into force on 6 July 2018, although some only apply to applications made after that date.

As always, practitioners are encouraged to read the new rules in full, but hopefully this post will highlight the main bits to be aware of.

Returning residents

As previously explained by Colin in this post, indefinite leave to remain automatically lapses after two years’ absence from the UK.

It is possible to have indefinite leave restored if you can show strong ties to the UK.

The new Rules make clearer the distinction between people who have been absent for under two years, and those who have been absent for longer than two years. The former are no longer called “returning residents” and can return without a visa. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. Previously, the Rules simply said that returning residents had to show, “for example, that they had lived here most of their life”. This seems to be a relaxation of the position, which may be in order to cater for people returning under the Windrush scheme — the explanatory memorandum makes that link, at any rate.

In addition, there are exceptions to the two-year rule for family members (including children) of certain diplomatic staff, but the new Rules now make it clear that they must be permanent diplomats.

Exceptions for overstayers

As it is currently drafted, paragraph 39E of the Immigration Rules allows overstayers to benefit from the exceptions for overstayers in two consecutive applications. Applicants applying after 6 July will only be able to rely on the exceptions once. This is perhaps better explained by way of example:

Another change to rules for overstayers, this time positive, is at paragraph 320(7BB) of the Rules, relating to general grounds for refusal. Paragraph 320(7B) means that an applicant who previously overstayed for 90 days or more before 6 April 2017, or for 30 days or more after 6 April 2017, might have an application for entry clearance refused for up to ten years (see our post on re-entry bans for more details).

Paragraph 320(7BB) sets out the periods of overstay which are disregarded. From 6 July 2018, a period of overstay pending the determination of an out-of-time application where paragraph 39E applied will be disregarded when calculating the period of overstaying in paragraph 320(7B).

Again, an example might explain this best.

Tier 1

Tier 1 (General)

The rules relating to indefinite leave to remain for Tier 1 (General) Migrants will be deleted as the route closed on 6 April 2018.  

Tier 1 (Exceptional Talent)

For applications submitted after 6 July 2018, the endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses.

New rules in place for individuals working in the field of fashion. This will be of great interest to many who were previously excluding from consideration by the Arts Council. They will now be assessed by the British Fashion Council. #fashion #immigration

— G (@gillian_legal) June 15, 2018

Other changes are being made to the criteria for endorsement by each Designated Competent Body, including to evidential requirements and eligible awards for applicants in film and television.

Tier 1 (Investor)

Changes are made so that:

• Applicants cannot withdraw interest and dividend payments generated before they purchased their investment portfolio
• There is a further obligation on financial firms to scrutinise the suitability of applicants’ investment by having to confirm that the funds have only been invested in qualifying investments, and no loan has been secured against those funds.

Tier 1 (Entrepreneur)

There are minor amendments on when letters from legal representatives confirming signatures are required, and provision for accountants to confirm the investment has been made on the applicant’s behalf.

Tier 2

You can read CJ’s detailed post on this groundbreaking and positive change, but in summary doctors and nurses are now exempt from the limit on visas for skilled non-EU workers.

Other, smaller, changes to the Tier 2 (General) route include:

• Deletion of references to jobs sponsored at level 4 of the Regulated Qualifications Framework, as, since June 2012, this was increased to RQF level 6.
• Clarification that an applicant cannot own more than 10% of shares, even if indirectly (for example via another corporate entity), in a limited company sponsoring them, save for certain exceptions. The old Rules did not specify that an application could not own the shares indirectly.
• Applicants applying after 6 July 2018 who have been absent on maternity, paternity, shared parental or adoption leave will now need to submit evidence of the adoption or birth.
• Finally, a migrant who has been absent for work without pay for four weeks or more will no longer have their Tier 2 leave curtailed when the absence was for assisting with a national or international humanitarian or environmental crisis overseas, providing their sponsor agreed to the absence(s) for that purpose.

Absences for indefinite leave to remain applications

Certain visa categories, including a number of the work-based categories, require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for indefinite leave to remain.

Continuous residence can be broken by absences for a period of 180 days or more in 12 months. Prior to 11 January 2018, the 180-day limit could not be exceeded in any of the five 12-month periods preceding the date of the application. A recent statement of changes, of 7 December 2017, meant that from 11 January 2018, an application could be refused if at any point over the five qualifying years, the 180-day limit is exceeded in any 12-month period. This might seem like a small change but this post by Joanna Hunt explains how significant the change was.

The change was so significant that a number of immigration practitioners lobbied for the change to only apply to those who were granted leave after 11 January 2018. The request has been accepted by the Secretary of State, who has introduced a transitional arrangement to ensure that the new absences calculation rule does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to 11 January.

A second change to the Rules relating to when continuous residence is broken brings the entry clearance provisions in line with the more generous in-country provisions. Continuous residence will usually not be considered to be broken when the applicant left and returned provided they had leave, and there are some exceptions. Two new exceptions have been added:

• where the applicant makes an application for entry clearance within 14 days of the leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative why the application could not be made during the currency of continuing limited leave; or
• where a successful application for entry clearance is made following the refusal of a previous application to which an exception applied, and the application was made within 14 days of that refusal (or the expiry of the time limit for making an in-time application for administrative review, or any administrative review or appeal being concluded, withdrawn or abandoned or lapsing).

Students

Students who study certain subjects and learn “knowledge and skills that could be used in the proliferation of weapons of mass destruction” are subject to the Academic Technology Approval Scheme (ATAS). They must obtain a certificate before they can start studying those subjects. The Rules will be changed such that this requirement will be applied to all students regardless of the length of their studies (it previously only applied to those courses in excess of six months).

Other changes include:

• students are allowed to study on a study abroad programme, regardless of when the programme is added to their course
• The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 9 months
• Evidence of previous qualifications now include print-outs from awarding bodies’ online checking services, although the Home Office may still ask to see the original certificates of qualification or transcript of results
• Students from certain countries are subject to different documentary requirements under Tier 4 of the Points Based System. The list of eligible countries is expanded and students may benefit from those different requirements even if they apply from their country of residence, and that is different from their country of nationality.

Afghan citizens

Following the UK’s military drawdown from Afghanistan, two schemes were introduced to allow former “locally engaged staff” to come to live in the UK. These are the ex gratia redundancy scheme, for those who served for at least a year on the front line and were made redundant as a consequence of the UK military drawdown; and the intimidation policy, for those whose safety was threatened due to their work with British forces.

There were Rules covering the ex gratia scheme, but it is only with this new statement of changes that new Rules are introduced to cover those who may be granted limited leave to enter under the intimidation policy.

In addition, new Rules are introduced to provide a route to settlement for Afghan citizens granted leave under these schemes, and their immediate family members.

To be eligible for settlement, Afghan nationals and their family members will need to have lived in the UK with leave granted under the scheme for five years, and not fall for refusal because of good character.

The application will be free of charge and there will be a specific form for settlement applications under this route, although that has not yet been released.

Dubs amendment and section 67 of the Immigration Act 2016

Big news: the government has created a new form of leave for children relocated to the UK under the Dubs amendment who do not qualify for refugee status https://t.co/FtyvlINXyN

— MigrantChildren CCLC (@MigrantChildren) June 15, 2018

Section 67 of the Immigration Act 2016, also known as the Dubs amendment, puts an obligation on the UK government to admit some unaccompanied children from mainland Europe. More details on the scheme were discussed by Colin in this post.

Children admitted to the UK under the Dubs amendment who do not qualify for international protection or humanitarian protection, can now be granted a new form of leave. This is given the catchy title “section 67 of the Immigration Act 2016 leave” but we can probably expect it to be referred to as “Dubs leave”. It will be granted provided:

1. the person is not excluded from being a refugee under regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 or excluded from a grant of humanitarian protection under paragraph 339D of these Rules;
2. the person’s application for refugee status or humanitarian protection has been refused;
3. there are no reasonable grounds for regarding the person as a danger to the security of the United Kingdom;
4. the person has not been convicted by a final judgment of a particularly serious crime, and does not constitute a danger to the community of the United Kingdom; and;
5. none of the general grounds for refusal in paragraph 322 apply.

Qualifying children will be granted leave for five years, and have the right to study, work and access public funds. 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. They will be eligible for indefinite leave to remain after five years, free of charge.

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

Turkish workers

More good news, this time for Turkish workers who could no longer apply for indefinite leave to remain under the European Communities Association Agreement (ECAA, also known as the Ankara Agreement) route. See this post for more background.

By the introduction of new “Appendix ECAA”, Turkish business persons, workers and their family members will again be able to obtain indefinite leave to remain in the UK provided

• their last grant of leave was under the ECAA
• they have lived in the UK continuously for five years
• they have shown sufficient knowledge of the English language and sufficient knowledge about life in the United Kingdom, in accordance with Appendix KoLL;
• they have been able to support any family members with them without recourse to public funds to which they are not entitled; and
• they do not fall for refusal under general grounds for refusal

Dependent children will be granted indefinite leave to remain in line with the main applicant, independently of how long they have lived in the UK. Partners, by contrast, will need to accumulate five years’ residence in the UK before being eligible for indefinite leave to remain. If they have not acquired five years by the time the main applicant has acquired indefinite leave to remain, they will be able to apply for further leave to remain to allow them to reach the five years (this is very similar to the situation of Points Based System dependants).

Other changes

Other changes include:

• removal of Croatians from the limit of allocated endorsements for Tier 1 (Exceptional) Talents and Tier 2 Certificates of Sponsorships. This is because, from 1 July 2018, the fifth-year anniversary of Croatia’s entry in the EU, Croatian nationals will no longer need authorisation to work in the UK and will benefit fully from EU movement rules.
• Changes to list of approved government authorised exchange schemes for Tier 5 migrants
• Confirmation that an adopted child with limited leave under the family Immigration Rules, who is aged 18 years or above by the time of their application for indefinite leave to remain, will need to meet the Knowledge of Language and Life requirement

All in all, almost only positive news, which is certainly a welcome change!

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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