On 17 July 2023, a new statement of changes to the Immigration Rules was published. As usual, it is accompanied by an Explanatory Memorandum. Also as usual, it is largely concerned with cracking down on those perceived as abusing immigration law. There are, though, one or two positive changes.
Asylum and humanitarian protection
There are two major changes to the rules governing asylum procedure.
Firstly, the circumstances in which an asylum claim is treated as withdrawn have been widened.
Currently, paragraph 333C says a claim will be treated as ‘implicitly withdrawn’ if the applicant leaves the UK without authorisation, fails to complete an asylum questionnaire, or fails to attend an interview (unless this was due to circumstances outside their control).
The new version of that paragraph adds two additional grounds: failure to maintain contact with the Home Office or to provide up to date contact details, and failure to attend reporting events unless due to circumstances outside the applicant’s control.
If this is actually deployed by officials in practice, it is likely significantly to increase the number of claims treated as withdrawn. Experience shows that the Home Office frequently fails to update its own address records, and that asylum seekers, like everyone else, sometimes simply forget to attend appointments or struggle to afford the cost of travelling there.
A cynic might say that the more claims the Home Office can treat as withdrawn, the more it can say have been resolved as part of its pledge to beat the backlog by the end of 2023. The change is likely to lead to more work in the long run though, in the form of further submissions by those who have fallen foul of the amended rules, and judicial reviews of erroneous withdrawal decisions. They won’t have left the country after all; they’ll still be here and will still need to have an asylum claim processed at some point. Starting all over again will just create more work for officials.
To illustrate the point, imagine an Afghan or Syrian asylum seeker has been reporting to the Home Office week in and week out for years but misses an appointment. If they ever receive a decision, there is a 99% chance it will be a grant of asylum. But their asylum claim is now treated as withdrawn. Their accommodation is terminated and they are evicted. They are now homeless. This is bad for them and it is another homeless person on our streets. They aren’t going to leave the country because they have no money and nowhere else to go. They now need a lawyer to help them. The lawyer will hopefully be able to help them lodge a fresh claim and apply for emergency accommodation. Eventually, the Home Office will have to look at their case, but it will now involve additional bureaucracy, extra work for officials, quite possibly an application for judicial review and more and more state resources.
Even for nationalities with a lower success rate, the change still makes no real sense from a rational perspective. The person is still here. They will almost certainly try and make a fresh asylum claim at some point, for example if later detected by the Home Office and detained for removal. They will then be one of those people the Home Office accuses of making last minute asylum claims, a phenomenon which make charter flights very expensive. The point is that whether they are or are not a refugee will need to be assessed at some point.
Secondly, the statement of changes gets rid of the differentiation between Group 1 and Group 2 refugees. This allowed refugees who entered unlawfully, and people granted humanitarian protection, to be given only 30 months’ leave to remain at a time, instead of the standard five years followed by indefinite leave to remain.
The policy was only introduced last year in order to implement section 12 of the Nationality and Borders Act 2022. Announcing its ‘pause’ in Parliament, Immigration Minister Robert Jenrick said that people already granted 30 months’ leave would have their conditions and leave upgraded to match those of Group 1 Refugees, although this is not provided for in the statement of changes. Guidance to Home Office caseworkers has already been updated to remove reference to differentiation.
This is a sensible change which gives genuine refugees more peace of mind and reduces the amount of work for officials. The differentiation policy meant that officials would have to re-look at asylum claims repeatedly for a ten year period rather than just twice as had previously been the case.
The EU Settlement Scheme
Last year, the High Court found that the EU Settlement Scheme breaches the Withdrawal Agreement between the UK and the EU. This is because it wrongly allows holders of pre-settled status to become unlawfully resident if they don’t make a further application for settled status. Nearly seven months later, the unlawful rules are finally amended in this statement of changes. A new bullet point is inserted into paragraph EU4 of Appendix EU, stating that the Secretary of State
‘may extend [limited leave], regardless of whether the person has made a valid application under this Appendix for such an extension’.
The use of ‘may’ rather than ‘will’ is at first blush concerning. However, the Home Office has confirmed in a separate announcement that from September 2023 two-year extensions will automatically be granted to anyone who has not obtained settled status. According to the Explanatory Memorandum, the extension will be achieved using the Secretary of State’s power unilaterally to vary leave under section 3(3)(a) of the Immigration Act 1971.
The Home Office also announced that at some point in 2024 those with pre-settled settled status will start to be automatically upgraded to full settled status if automated checks of government records indicate that they qualify:
The Home Office also intends to take steps to automatically convert as many eligible pre-settled status holders as possible to settled status once they are eligible for it, without them needing to make an application. During 2024, automated checks of pre-settled status will establish their ongoing continuous residence in the UK.
There are also two significant changes to the validity requirements of the EU Settlement Scheme. Firstly, the obligation to demonstrate reasonable grounds for applying after the deadline is moved to the validity requirements in paragraph EU9 of Appendix EU and paragraph FP4 of Appendix EU (Family Permit). This means that where the Secretary of State considers there are no reasonable grounds for the delay, the application will be rejected with no right of appeal or administrative review.
Secondly, an in-country application made after 9 August 2023 as a ‘joining family member’ can now be rejected as invalid if the applicant is an illegal entrant as defined in section 33 of the Immigration Act 1971. A ‘joining family member’ is, roughly speaking, the family member of an EU national who wasn’t resident in the UK on that basis before the end of the transition period. This change to the validity requirements means it won’t be possible for someone in this position to circumvent the requirement for an EU Settlement Scheme Family Permit by entering illegally and then applying for leave to remain.
More positively, the definition of ‘dependent relative’ under Appendix EU is amended to provide for the adult child of a durable partner. They will now continue to qualify if previously granted leave in this capacity when under 18.
The final change to EU Settlement Scheme is to close the Surinder Singh and Zambrano routes to new applicants from 8 August 2023. The Explanatory Memorandum justifies this ‘as a matter of fairness to other British citizens wishing to sponsor foreign national family members to settle in the UK’.
Students on courses starting after 1 January 2024 will now only be able to bring dependents if they are government-sponsored or are studying towards a PhD, another doctoral qualification, or a research-based higher degree. Dependents already in the UK remain able to extend their leave.
Those already in the UK as students are also affected by changes to Appendix Skilled Worker, Appendix Global Business Mobility routes, Appendix T2 Minister of Religion, Appendix Representative of an Overseas Business, Appendix UK Ancestry, Appendix Global Talent, Appendix High Potential Individual, Appendix Scale-Up, Appendix Innovator Founder, Appendix International Sportsperson, Appendix Temporary Work – Creative Worker, Appendix Temporary Work – Religious Worker, Appendix Temporary Work – Charity Worker, Appendix Temporary Work – International Agreement, and Appendix Temporary Work – Government Authorised Exchange. They can now only switch into these routes in the UK if they have completed their course of study or, in the case of a PhD, if they have completed at least 24 months of it. For Skilled Workers, the course need not have been completed if it is degree-level or above at a provider with a track record of compliance and the job will start no earlier than the course completion date.
Skilled Workers, Global Business Mobility, and Scale-Up Workers
The Shortage Occupation List for skilled workers is expanded to include several construction jobs: bricklayers and masons, roofers, roof tilers and slaters, carpenters and joiners, plasterers, and construction and building trades not elsewhere classified. Agriculture and fishing trades are also added. Whether this makes much difference in practice is debatable as there is still a lot of bureaucracy and some very high application fees associated with this route.
New genuineness requirements are introduced in Appendix Skilled Worker, Appendix Global Business Mobility routes, and Appendix Scale-up. In each case, an applicant must show that they genuinely intend and are able to undertake the role for which they have been sponsored, and that they don’t intend to take unpermitted additional employment.
The Ukraine Extension Scheme
Currently, the Ukraine Extension Scheme enables Ukrainian nationals to extend their stay in the UK if they had leave to remain at any point between 18 March 2022 and 16 May 2023. It was scheduled to close to new applicants on 16 November 2023. The statement of changes amends the latest date on which an applicant must have had leave to 16 November 2023. It also extends the deadline for new applications to 16 May 2024.
Adult dependent relatives
Prior to 1 June 2023, if a pair of parents or grandparents were applying together as adult dependent relatives, then only one of them needed to show a need for long term personal care that could not be met in their country of residence. When the route was moved from Appendix FM to Appendix Adult Dependent Relative, this changed. As it currently stands, both parents or grandparents must meet the care requirements in their own right. This potentially requires applicants to choose between having their care needs met in the UK and foregoing those needs to remain with their spouse or partner.
The new statement of changes reverts to the previous position. Now, where one parent or grandparent has care needs that meet the rules, the other will qualify alongside them whatever their own state of health. The explanatory memorandum accompanying the rules, with surprising candour, confirms that the omission was an error.
There are a few other changes. They include rewording of the provisions concerning access to public funds for British Nationals (Overseas) and people with leave on private life grounds. In both cases, the wording is brought in line with that in Appendix FM. There is ‘clarification’ of the Youth Mobility Scheme and Appendix Innovator Founder, and a change to allow more time for trained general practitioner doctors to find work employment on the Skilled Worker route.