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Statement of Changes to the Immigration Rules HC667


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Statement of Changes to the Immigration Rules HC667 was laid yesterday, 3 November 2016. The document weighs in at 90 pages but many of the changes are to language rather than effect. The more significant changes are to Tier 2 skilled workers, for whom the minimum salary level is increased, to Tier 4, the introduction of a new English language requirement for family immigration and the abolition of the 28 day grace period for making out of time immigration applications.

Some of the main substantive changes are outlined in an accompanying press release:

Tier 2

Implement the first of 2 phases of changes to Tier 2, announced by the government in March following a review by the Independent Migration Advisory Committee.

  • Increasing the Tier 2 (General) salary threshold for experienced workers to £25,000, with some exemptions
  • Increasing the Tier 2 (Intra-Company Transfer) salary threshold for short term staff to £30,000
  • Reducing the Tier 2 (Intra-Company Transfer) graduate trainee salary threshold to £23,000 and increasing the number of places to 20 per company per year
  • Closing the Tier 2 (Intra Company Transfer) skills transfer sub-category

These changes will come into effect for all certificates of sponsorship assigned by Tier 2 sponsors on or after 24 November 2016. The date from which intra company transfers will be liable for the health surcharge will be announced in due course.

Tier 4

A number of changes are being made, including amendments to the academic progression rule, maintenance requirements for the Doctorate Extension Scheme and evidence of overseas qualifications, UK qualifications used as evidence, and a series of minor and technical adjustments.

English language requirement

As announced in January this year, a new English language requirement at level A2 of the Common European Framework of Reference for Languages is being introduced for non-EEA partners and parents.

This affects those applying to extend their stay after 2.5 years in the UK on a 5-year route to settlement under Appendix FM (Family Member) of the Immigration Rules. The new requirement will apply to partners and parents whose current leave under the family Immigration Rules is due to expire on or after 1 May 2017.

The abolition of the 28 day period of permissible overstay for the purpose of making a new application is big and very unwelcome news. The various references to the 28 day rule are replaced with reference to a new paragraph 39E which applies where:

(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

(2) the application was made:

(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and

(b) within 14 days of:

(i) the refusal of the previous application for leave; or

(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

The Explanatory Memorandum explains the new approach thus:

The 28-day period is therefore to be abolished. However, an out of time application will not be refused on the basis that the applicant has overstayed where the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made, provided the application is made within 14 days of the expiry of leave.

There will presumably be guidance forthcoming on what might constitute a “good reason”, which will be crucial.

Provision is also made so that those who made use of the 28 day rule while it existed are not penalised when it comes to continuous residence applications further down the line.
Other changes include:

  • Tightening up refusals on public policy grounds to provide for mandatory rather than discretionary refusals.
  • Adjusting and rewording the rules on validity of applications.
  • Relatively minor clarification and changes to Tier 1 (Entrepreneur) and Tier 1 (Exceptional Talent)
  • The upper age limit of 65 for domestic workers in private households is removed along with some other changes to domestic worker categories.
  • Incorporating existing EU safe third country law into the Immigration Rules.
  • Slight clarification of the Administrative Review process.
  • Various amendments to the family and private life rules including decreasing the threshold for refusal because of NHS debt from £1000 to £500 and adjustments to the specified evidence provisions.
  • Slight relaxation of the rules on visitors so that refusal is not mandatory where a person previously breached immigration laws, is now outside the re-entry ban period and has since then been readmitted to the UK.

If diving into the detail, the best place to start is the accompanying Explanatory Memorandum.

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.