New statement of changes to the Immigration Rules HC1160

A new statement of changes to the immigration rules has now been published. The explanatory memorandum to the statement can be found here. The most significant changes are the addition of the Electronic Travel Authorisation scheme, and the introduction of the Innovator Founder route on 13 April 2023. The minimum salary requirement for skilled workers has also increased from £25,600 to £26,200. This, and changes in other routes will come into effect on 12 April 2023.

Electronic Travel Authorisation (ETA) scheme

In a written statement to the House of Commons this morning, immigration minister Robert Jenrick explained that one of the government’s ongoing priorities is securing the UK’s borders and keeping people safe. Part of this initiative is to make sure that everyone wishing to travel to the UK has permission to do so. The Electronic Travel Authorisation (ETA) scheme aims to plug any gaps.

The Home Office have even published a news story about the scheme, framing it as a way to “bolster the border”.

The rules are set out in Appendix Electronic Travel Authorisation. The scheme will apply to individuals who are visiting or transiting through the UK who do not currently need a visa for short stays, and will also include those using the Creative Worker route for a short stay in the UK.

The scheme applies to nationals of Qatar from 15 November 2023. And to nationals from the following countries from 15 February 2024:

• Bahrain
• Jordan
• Kuwait
• Oman
• Saudi Arabia
• United Arab Emirates

Apparently, more countries will be added to the scheme later.

Residents of Ireland that do not need a visa will not need to apply for ETA to enter the UK. This is a really significant development and protects the Common Travel Area and the rights of non-visa nationals, particularly in the border communities in Ireland. It is unfortunate that there has, so far, been no positive comment on this from the Home Office.

Applications will be made using the, not yet available, UK ETA app or online and decisions should be made within three working days. An ETA will be issued electronically, and linked to the individuals passport. There is not yet any information from the Home Office about what the cost of the application will be.

The ETA will be valid for a period of two years, or until the expiry of the individuals passport.

If an individual is refused, they will need to apply for a visitor or transit visa, or Temporary Work – Creative Worker visa in the alternative.

Innovator Founder route

The Innovator route, which was first launched in March 2019 was aimed at individuals seeking to establish a business in the UK which they could contribute significant funds too. Nicola Carter explained how the Innovator route was not fit for purpose then, and the quarterly statistics released last month confirm this, with only 299 grants in 2022. There were also only 377 grants of Start-up visas for people seeking to establish businesses in the UK for the first time.

The statement of changes rethinks the Innovator and Start-up routes, and replaces them with a new Innovator Founder route. The aim is to make the criteria currently applicable under the Innovator route more flexible so that those with a genuine proposal for an innovative business and who have sufficient funds to deliver it, are more readily available to enter the UK and establish this business.

For example, there is no longer a £50,000 minimum funds requirement. And individuals will also be able to engage in employment outside the running of their business, unlike Innovator visa holders, provided that the secondary employment is in a skilled work of at least RQF level 3 (A level and above).

Extension applications will be possible under the Innovator Founder – Same Business criteria, where the applicant last had permission as an Innovator Founder or were on the Start-Up or Tier 1 (Graduate Entrepreneur) routes. Settlement will be possible after spending three years continuously resident in the UK under the Innovator Founder route.

We will provide more detailed breakdown of the visa requirements for new applicants in a separate post before the changes come into place on 13 April.

As a result of these changes, the Start-up route will no longer be open to new applicants from 13 April 2023, except for where they are supported by endorsements that were issued before 13 April. With the introduction of a route that does not have a £50,000 funds requirement, it is no longer necessary to retain a separate route for entrepreneurs that do not have access to this level of funds.

Salary changes

Salary requirements for skilled workers have been updated and the minimum salary threshold for Skilled Worker visa’s is now £26,200. The statement also clarifies the minimum salary requirement for Global Business Mobility Senior and Specialist workers as £45,800 and £24,220, and £34,600 for Scale-up workers.

The calculation of example annual salaries will now be based on a 37.5, rather than the less likely 39 hour week.

Thankfully for those working shift patterns, the updates confirm how salaries are considered where an individual is working a pattern of irregular hours each week. For example, for a Global Business Mobility – Senior or Specialist Worker, SNR 8.2A confirms:

“If the applicant is being sponsored to work a pattern where the regular hours are not the same each week, resulting in uneven pay:

(a) work in excess of 48 hours in some weeks can be considered towards the salary threshold of £45,800, providing the average over a regular cycle (which can be less than, but not more than, 17 weeks) is not more than 48 hours a week; and

(b) any unpaid rest weeks will count towards the average when considering whether the salary thresholds are met; and

(c) any unpaid rest weeks will not count as absences from employment for the purpose of paragraph 9.30.1 in Part 9 of these rules.

For example, an applicant who works a pattern of 60 hours a week for £20 per hour for two weeks, followed by an unpaid rest week, will be considered to work 40 hours a week on average and have a salary of just £41,600 (£20 x 40 x 52) per year.”

For Skilled Workers making entry clearance applications, clarification might be included in a defined certificate of sponsorship application job description section, in the same way you might include calculations for salaries close to the minimum salary requirement where hours of work per week need to be considered at this earlier stage.

Other changes in the employment routes

There are many other minor technical changes. These include jury service and attending court as a witness being added to the list of reasons where absences from employment are permitted for continuity of employment assessments, for example for settlement applications or curtailment of visas.

As always, changes have been made to reflect relevant international and trade agreements. Nationals and permanent residents from Australia applying for the Global Business Mobility – Expansion Worker route will not need to show that they have worked for their overseas employer for the 12 months prior their application. And nationals from New Zealand are now able to apply for the Youth Mobility Scheme up to the age of 35, rather than 30, and the length of stay has been increased from two to three years. Also under the Youth Mobility Scheme, Australia have been allotted 5,000 extra places, and Canada 2,000.

Evidential requirements have been clarified for the Global Talent route in Appendix Global Talent at APP GT16-26. And the settlement requirements have been updated to allow time spent as a Representative of an Overseas Business to be included as part of the three or five year continuous residence period.  

The annual start date for Poultry Workers in the Seasonal Worker route is amended from 18 October to 2 October each year. And the minimum guaranteed hours for those working in horticulture has also been set at 32 hours a week.

Lawful and continuous residence

The current definition of what constitutes lawful residence in the UK under the long residency rules is unclear and this has lead, apparently, to “confusion for customers and a broader interpretation than intended”.

Any permission to be in the UK that would usually be granted for 12 months or less, and where switching onto another route is generally not allowed from within the UK, do not count towards time lawfully and continuously resident in the UK:

“(b) “lawful residence” means residence which is continuous residence pursuant to:
(i) existing leave to enter or remain, except this cannot include time with entry clearance or permission under Appendix V: Visitor, Appendix Short-term Student (English language), or Appendix Temporary work – Seasonal Worker; or
(ii) an exemption from immigration control, including where an exemption ceases to apply if it is immediately followed by a grant of leave to enter or remain.
(c) “lawful residence” does not include time spent on immigration bail.”

This re-enforces the expectation that an individual should leave the UK at the end of a short stay. Non-visa nationals who enter the UK through e-gates for more long term visas might also need to make sure that they enter on or after the date their visa is valid from, rather than entering as a visitor shortly before the start date on their visa, just because they can. 

However, an individual who has spent time on any of these short-term visas and is then granted permission to stay in the UK on another basis may be able to qualify for long residence, but they will need to wait longer.

Returning Residents 

The Returning Resident rules have been updated to allow someone whose indefinite leave to remain in the UK has lapsed, to make an application to resume their settlement even if they have subsequently returned to the UK as a visitor in the interim period. Individuals must still make their applications from outside the UK.

EU Settlement Scheme 

Clarification has been given under the EU Settlement Scheme (EUSS) for durable partners at APP EU4:

“(bb) the person:

(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the entry for ‘family member of a relevant EEA citizen’ in this table, or, as the case may be, as the durable partner of the qualifying British citizen, at (in either case) any time before the specified date, unless (in the former case):

-the reason why they were not so resident is that they did not hold a relevant document as the durable partner of that relevant EEA citizen for that period; and

-they otherwise had a lawful basis of stay in the UK and Islands for that period; or

(bbb) was resident in the UK and Islands before the specified date, and one of the events referred to in sub-paragraph (b)(i) or (b)(ii) of the entry for ‘continuous qualifying period’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date; or

(ccc) was resident in the UK and Islands before the specified date, and the event referred to in sub paragraph (a) of the entry for ‘supervening event’ in this table has occurred and after that event occurred they were not resident in the UK and Islands again before the specified date,”

And the current Zambrano concessions for primary carers of British citizens has also now been included in Appendix EU.

Changes to Appendix AR (EU) confirm in AR(EU)1.2 that where a person is refused on both eligibility and suitability grounds, there is no right to administrative review, though there is a right of appeal against the refusal decision. And under paragraph 34X, an administrative review under Appendix AR (EU) will be withdrawn where another application is made under the EUSS, for an EUSS family permit, or as an S2 healthcare visitor or Service Provider from Switzerland.

Simplification

More routes have been simplified in line with the recommendations of the Law Commission report Simplifying the Immigration Rules.

The rules for adult dependent relatives have been updated “to align with the wider approach to suitability and settlement under article 8 human rights routes”. Where an applicant for settlement under this route fails on criminality grounds but their removal would breach article 8 of the European Convention of Human Rights, they will need to complete a longer qualifying period in the alternative. The rules for deportation have also been changed in relation to the article 8 threshold, to correct inconsistencies and reflect recent judgments.  

But not all ‘simplification’ seems to have actually simplified the rules. It looks as if refugee family reunion applications made outside the rules have become harder as a result of FRP 1.1:

“An appliction for family reunion must meet the following validity requirements:

(a) the applicant’s sponsor must currently have protection status in the UK; and

(b) the applicant’s sponsor must not be a British Citizen; and

(c) the applicant must have made an application for:

(i) permission to stay under Appendix FRP while in the UK in writing; or

(ii) entry clearance when outside the UK through the gov.uk website on either ‘Partner of someone in the UK with protection status (family reunion)’ or ‘Child of someone in the UK with protection status (family reunion)’; and

(d) the applicant must have provided any required biometric information.”

If, for example, an Afghan national evacuated in August 2021 now applied, that application may now be invalid. And the requirement to provide biometrics before a case can be considered makes routes to the UK harder to access. The family reunion route continues to be an example of where procedural barriers and limited eligibility prevent individuals accessing a safe and ‘legal’ route into the UK.

Apparently to provide clarity regarding asylum interviews for unaccompanied children as the government work to clear the backlog of asylum applications, Part 11 of the rules has been updated at paragraphs 352 and 352ZA. The updates provide confirmation of when an asylum interview can be omitted for a child. And they clarify for decision makers that decisions for children can be made without an interview where there is enough information already to grant protection status.

The ongoing simplification process also includes a complete overhaul and re-formatting of Appendix Family Reunion (Protection) and the introduction of Appendix Child joining a Non-Parent Relative (Protection), which replaces the provisions under paragraphs 219X to 219Y of Part 8 of the rules.

Yet this latter ‘simplification’ for separated children joining family members in the UK also seems to have added in an additional barrier. Applicants (a child joining refugee relatives in the UK) will now need to pay the NHS health surcharge.

Changes to Electronic Travel Authorisation (ETA) scheme and employment requirements in work routes will come into effect on 12 April 2023. The new Innovator Founder route will come into effect on 13 April 2023.