Updates, commentary, training and advice on immigration and asylum law
Statement of changes to the Immigration Rules: HC877
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There are a LOT of changes. Stand out features include:
- Those with a “litigation debt” to the Home Office (i.e. who were ordered to pay costs and who have not, including all those issued with unlawful costs orders by the Upper Tribunal) will be refused further UK visas.
- Decrease in the threshold for NHS debt being a bar to re-entry from £1000 to £500
- Making it even harder for the self employed to produce the necessary evidence under Appendix FM-SE
- Changes to the overseas domestic worker rules in line with recent review and response, which I will cover next week in a full blog post
- Further tightening of the Tier 4 student rules
- Tweaks to the Administrative Review process
- Widening of the circumstances in which Appendix FM applications can be refused due to previous alleged poor conduct
Rather than do a full summary, which might well kill me, I’ve pasted in the relevant parts from the explanatory notes with a little contents table to help you:
- Changes relating to the Definition of Public Funds
- Changes relating to Part 1 of the Immigration Rules
- Changes relating to Tier 1 of the Points-Based System
- Changes relating to Tier 2 of the Points-Based System
- Changes relating to Overseas Domestic Workers
- Changes to Tier 5 of the Points-Based System
- Changes relating to Tier 4 of the Points-Based System
- Changes relating to Short-term Students
- Changes relating to Part 9
- Changes relating to Administrative Review
- Changes relating to Appendix Armed Forces
- Changes relating to Family and Private Life
- Insertion of Appendix SN
- Changes relating to the Visit Rules
Changes relating to the Definition of Public Funds
7.1. The Welfare Reform Act 2012 abolished the part of the discretionary Social Fund which provided benefit recipients with emergency loans and grants to ease exceptional pressure on them and their families.
7.2. Funding has since been passed to local authorities in England to deliver new local support aligned with their existing services, and to the devolved administrations.
The additions to the definition incorporate the powers under which local authorities in England and the relevant authorities in Scotland and Northern Ireland may make discretionary payments.
7.3. The replacement of the words “the Northern Ireland Welfare Reform Act 2013” in paragraph (e) of the definition of ‘public funds’ with the words “the Welfare Reform (Northern Ireland) Order 2015” is to correct an error.
Changes relating to Part 1 of the Immigration Rules
7.4. Paragraph 30 of the Immigration Rules sets out that an application for entry clearance has not been made until any fee required has been paid. The rule has been updated to refer to the current legislation under which the applicant is required to pay the fee for an entry clearance application.
7.5. Minor changes have been made to paragraph A34 to:
- Clarify that an application for leave to remain must be made either by completing the relevant online application process or by using the correct specified application form, regardless of whether the application is made under or outside the Immigration Rules.
- Update a rule to refer to the Home Office premium service centre.
7.6. In consequence of the insertion of Appendix SN into the Immigration Rules, redundant references to deeming provisions have been removed from paragraphs 34C(a), 34R(4) and 34T(2). For more information about Appendix SN, see paragraphs 7.42. and 7.43.
Changes relating to Tier 1 of the Points-Based System
7.7. Tier 1 of the Points-Based System caters for high value migrants, and currently consists of four active categories: Tier 1 (Exceptional Talent), Tier 1 (Entrepreneur), Tier 1 (Investor) and Tier 1 (Graduate Entrepreneur). It also includes the Tier 1 (General) category, which was closed to new applicants in April 2011 but remains open for settlement applications.
Tier 1 (Entrepreneur)
7.8. In response to partner feedback, amendments are being made to better support applicants who have access to investment funds from a trusted source. In particular:
- A provision is being made to allow an applicant applying with funding from one or more UK Seed Funding Competitions or one or more UK Government Departments, or Devolved Government Departments in Scotland, Wales or Northern Ireland to supply a letter, confirming that the money was transferred to them less than 90 days before the date of the application. This removes the need for the applicant to supply a third party declaration and legal confirmation if they have not held the funds for this duration;
- A provision is being made to allow applicants who have received investment from a UK Seed Funding Competition or UK Government Department to produce financial accounts which show that the investment was made in the name of the source of funds, providing they supply a supplementary letter from the source, confirming that this investment was on their behalf. This removes the need for the specified financial accounts evidence to confirm that the investment was made on the applicant’s behalf.
7.9. Additionally, in order to reflect normal business practice, an amendment is being made to allow applicants to provide financial accounts which show that the qualifying investment in their businesses was made in the name of an investing entity, other than one or more UK Seed Funding Competitions or one or more UK Government Departments, or Devolved Government Departments in Scotland, Wales or Northern Ireland, providing they supply a supplementary letter from UK Trade and Investment (UKTI) which confirms the investment was made on behalf of the applicant.
7.10. To address concerns about abuse, the evidential requirements for applicants applying using funding from venture capital firms are being expanded.
7.11. The Immigration Rules on indefinite leave to remain (ILR) are being clarified so that applicants applying under the accelerated provision are able to appropriately demonstrate that:
- they have registered their business within six months of their specified date; and
- their business, if it was being taken over, has resulted in a net increase of at least £5 million (should they be applying for accelerated ILR on this basis).
7.12. In response to queries from external stakeholders, minor clarifications are being made to existing Immigration Rules around job creation.
7.13. Minor technical changes are being made to clarify various evidential requirements and to correct minor drafting errors.
Tier 1 (Graduate Entrepreneur)
7.14. The prescribed content of the endorsement letter required from the applicant’s endorsing body is being expanded to request a telephone contact number from the authorising official at the endorsing body, and to also request the name and contact details of a person in an administrative role at the institution.
Tier 1 (Exceptional Talent)
7.15. The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. Minor amendments have been made to the criteria used by Tech City UK for endorsing applicants in the digital technology sector in this category.
Changes across Tier 1
7.16. A minor change is being made regarding UK accounting bodies, whose evidence is accepted in various Tier 1 categories, to require confirmation that they hold the relevant licence to practise or a practising certificate.
Changes relating to Tier 2 of the Points-Based System
7.17. The Tier 2 (General) category is for migrant workers with an offer of a skilled job from a licensed employer which cannot be filled by a resident worker. Changes are being made to redistribute the monthly allocations of places under the annual limit which applies to this category. The limit begins in April each year, with places released monthly. Unused places are carried over from the previous month. The revised allocations will better reflect seasonal demand for places across the year, based on recent trends. The overall size of the limit (20,700 places per year) remains unchanged.
7.18. As in previous years, an annual uplift in line with wage inflation is being applied to the earnings threshold for Tier 2 (General) and Tier 2 (Sportsperson) settlement applications. The uplifted threshold will apply to settlement applications made from 6 April 2021. The Government intends to review other Tier 2 salary requirements as part of its response to the review of Tier 2 published by the Migration Advisory Committee on 19 January 2016.
7.19. No Tier 2 application can be made earlier than 3 months before the start date given by the applicant’s sponsor. For Tier 2 (Minister of Religion) and Tier 2 (Sportsperson), this requirement is currently only set out in guidance and is being added to the Rules.
Changes relating to various Points-Based System categories and Representatives of Overseas Businesses
7.20. Amendments are being made to reflect the closing down of the “points based calculator” tool on the gov.uk website, which applicants may currently use if they would like to use an overseas qualification to demonstrate a requirement of the rules. From 6 April 2016, applicants should instead obtain an official statement from UK NARIC: www.naric.org.uk/visasandnationality.
7.21. Minor amendments are being made to clarify that UK NARIC determines the level of international qualifications, and does not assess UK qualifications; and to confirm that Master’s degrees and PhDs taught in English may be used to satisfy the English language requirement for Representatives of Overseas Businesses, in line with Points-Based System categories.
Changes relating to Overseas Domestic Workers
7.22. This Statement of Changes implements two changes announced in the Minister for Immigration’s Written Ministerial Statement of 7 March, which set out the Government’s response to the independent review of the overseas domestic worker visa undertaken by James Ewins QC. First, these changes give effect to the Government’s decision to allow those admitted as an overseas domestic worker to take employment other than that for which they were admitted originally during the six months for which such workers are admitted, and irrespective of whether they are the victim of abuse or not. These changes give effect to this by providing that the conditions attached to the leave of a non-EEA national admitted to the UK shall not prevent them from taking alternative employment as a domestic worker, with the consequence that such workers will be able to take alternative employment as a domestic worker without being required to apply for a variation of their leave to enter or remain. Similar provision is being made for those admitted under Tier 5 provisions for private servants of diplomats. Second, the provisions of the Rules relating to domestic workers who are the victims of slavery or human trafficking (which have been implemented pursuant to section 53 of the Modern Slavery Act 2015) are being amended to provide that a person may be granted leave to remain in this category for a period of up to two years.
Changes to Tier 5 of the Points-Based System
7.23. Tier 5 of the Points-Based System caters for youth mobility and temporary workers coming for primarily non-economic purposes, and consists of two categories: Tier 5 (Youth Mobility Scheme) and Tier 5 (Temporary Workers). The Temporary Workers category consists of five sub-categories: Creative and Sporting, Charity Workers, Religious Workers, Government Authorised Exchange, and International Agreement. Applicants must have a Tier 5 Sponsor, which is usually their UK employer. The Government Authorised Exchange category enables people to come to the UK to share knowledge, skills and gain work experience through individual schemes which are administered by an overarching sponsor.
7.24. The maintenance requirements under all the Tier 5 (Temporary Worker) routes are being amended to clarify that by a sponsor certifying maintenance they are confirming the applicant will not claim public funds during their period of leave.
7.25. Under the Government Authorised Exchange category, the “American Institute for Foreign Study (AIFS”, “Broadening Horizons”, the “Encouraging Dynamic Global Entrepreneurs (EDGE)”, “HMC Projects in Central and Eastern Europe – Teachers’ Work Exchange Scheme”, and “National Policing Improvement Agency (NPIA)” schemes, are being removed as they are all no longer in use.
7.26. The description of the “Chevening and Marshall Sherfield Fellowships Programmes” administered by the Association of Commonwealth Universities is being amended to remove any reference to the “UK Environment Programme’s World Conservation Monitoring Centre in Cambridge” as the Chevening scheme is no longer used to sponsor individuals through that programme.
Changes relating to Tier 4 of the Points-Based System
7.27. Tier 4 of the Points Based System is the visa route used by non-EEA students wishing to study in the UK. Tier 4 is comprised of two categories: Tier 4 (General) and Tier 4 (Child). The following changes are being made in Tier 4:
- An amendment is being made to make clear that Tier 4 (General) students may not extend their leave in the UK in order to study a course at a lower level than the previous course for which they were granted Tier 4 leave and the course must be at or above degree level. These students must be progressing academically, unless they are taking a course at the same level as their previous course and their Higher Education Institution sponsor confirms that the course is related to the previous course for which the applicant was granted leave as a Tier 4 (General) Student, or the previous course and the new course in combination support the applicant’s genuine career aspirations. A further change is being made to tighten the circumstances in which a Tier 4 (General) student, who has previously studied in the UK, can switch courses without obtaining a new visa.
- Amendments are being made to the rules relating to the time limits under Tier 4 (General). A clarification has been added to specify that for the purposes of calculating how much time has been spent contributing to the time limits, the period of leave granted, and the level of course for which the leave was granted, will be counted, rather than (if different) periods and courses actually studied. Time spent under the age of eighteen will no longer be excluded. This will mean that all time granted for study in the UK under Tier 4 (General) will be included when calculating the maximum length of time that may be spent under the route.
- A provision is being added to allow third country nationals applying under Tier 4 (General) to study a short-term study abroad programme in the UK as part of their bachelor’s or master’s degree at an overseas higher education institution in the USA to be exempt from the English language requirements in Tier 4. This change allows USA universities to assess the student’s level of English language in the same way that UK higher education institutions are permitted to.
- An amendment is being made to reduce the maintenance requirements for those applying for leave to remain under Tier 4 as a student union sabbatical officer or postgraduate doctor or dentist on a recognised Foundation Programme. These students are applying for a salaried position, which will contribute to their ability to support themselves financially. These students will be required to show funds for their living costs for each month of their course up to a maximum of two months, bringing them in line with Doctorate Extension Scheme students, who can also work full-time.
- Under current Tier 4 rules, students are not permitted to be self employed, which is defined as being registered as self-employed with HM Revenue & Customs, or being employed by a company of which the applicant is a controlling shareholder. This allows students to set up businesses, provided they are not the controlling shareholder. We are tightening the definition of self employment to prevent this, in order to reflect the policy intention that the Tier 4 visa route is for students to come to the UK to study, not to take employment. Work is allowed so that a student can supplement their income whilst studying in the UK, not to set up businesses.
- Tier 4 students are permitted to study at independent schools and sixth form colleges. Where such an institution with a Tier 4 sponsor licence becomes an academy or a school maintained by a local authority, it is not permitted to sponsor any new students under Tier 4. An amendment is being made to the rules to clarify that Tier 4 students who are sponsored by such an institution at the time of the conversion may continue to study there until they complete their current course of study. A definition of ‘school maintained by a local authority’ is also being added.
Changes relating to Short-term Students
7.28. A clarification is being made to the Short-term student rules to make clear that short-term students must be genuine and that their purpose of coming to the UK is to study a short course.
Changes relating to Part 9
7.29. Each year, the Home Office is awarded considerable litigation costs by the courts and tribunal. Some applicants fail to pay these costs. They may then make further applications to be granted entry clearance, leave to enter or leave to remain. At present the Immigration Rules do not provide a specific power to refuse such applications on the basis that the applicant owes a litigation debt to the Home Office. It is right that people who are ordered to pay costs to the Home Office following an unsuccessful appeal or claim should do so. Therefore a new discretionary power to refuse applications on the basis of litigation debt is being introduced into Part 9 of the Immigration Rules, which contains the general grounds for refusal. The new rule will encourage applicants to pay litigation debts that they owe and assist the Home Office in recovering the costs incurred in dealing with the unsuccessful litigation.
7.30. An equivalent change is being made to Appendix V, which contains ‘suitability requirements’ for applicants under the visitor route based on the general grounds contained in Part 9 of the Rules.
7.31. A change is also being made to the ‘suitability requirements’ in Appendix FM and Appendix Armed Forces such that applications made under those Appendices may be refused on the basis of litigation debt. As Appendix FM sets out how the Secretary of State will consider applications to enter or remain in the UK on the basis of family or private life, and Appendix Armed Forces applicants may raise similar considerations, the rule will confer a discretionary power to refuse an application on the basis of a litigation debt.
7.32. Following amendments to the Immigration Rules on 10 October 2011 (HC, 1511) migrants subject to immigration controls who have incurred a cumulative NHS debt of £1000 or more should normally be refused entry clearance and leave to enter or remain in the UK until the debt is cleared. The amendments to paragraph 320(22), 322(12) and 3.14 of Appendix V lower the threshold from £1000 to £500.
7.33. Paragraph 320 of the Immigration Rules sets out various grounds for the refusal of entry clearance or leave to enter. We are making an amendment to paragraph 320(3) to avoid a mandatory refusal for holders of documents which do not establish a nationality, owing to the holder’s status, but which the UK is otherwise prepared to accept as they are recognised as valid for travel in all other respects.
7.34. Paragraph 322(2A), which provides for refusal where the applicant has made false representations or failed to disclose material facts for the purpose of obtaining a document indicating a right to reside, is being extended to applications made under Appendix Armed Forces. This corrects an oversight.
Changes relating to Administrative Review
7.35. Appendix AR of the Immigration Rules sets out the rules for administrative review including the decisions that are eligible for review.
7.36. The purpose of an administrative review is to assess whether the original decision maker reached an incorrect decision on the application, based on the evidence originally supplied with the application. It does not provide, generally, an opportunity for the applicant to rectify omissions in the evidence that was submitted with the original application. Additional evidence may only be submitted in the circumstances set out in paragraph AR2.4 of Appendix AR. Amendments have been made to allow reviewers to request further evidence in additional limited circumstances.
7.37. An application may be refused under paragraph 322(2) of the Immigration Rules if the applicant has practiced deception for the purpose of obtaining leave to enter or a previous variation of leave, or in order to obtain documents from the Secretary of State or a third party required in support of the application for leave to enter or a previous variation of leave. A change has been made to provide for additional evidence to be considered at administrative review in order to demonstrate that the deception specified in paragraph 322(2) did not occur. This brings the administrative review of such refusals in line with the review of a decision to refuse an application on the basis that deception was practiced in the current application.
7.38. One of the principles of administrative review is that a decision may only be reviewed once, unless the result of the first review is that different or addition refusal reasons are added to the decision. This principle will also apply to the review of refusals under paragraph 322(2). Applicants may only produce new evidence once to rebut a finding of deception. Therefore new evidence can only be provided to rebut a finding that deception was practiced in a previous application if the decision under review is the first decision which contained the finding of deception. If the finding of deception was also made in the decision on a previous application, the applicant will have already had a chance to challenge that finding in the context of the previous decision.
7.39. A change is being made to paragraphs AR2.8 and AR2.9 to clarify when an administrative review is pending.
Changes relating to Appendix Armed Forces
7.40. Changes are being made to Appendix Armed Forces to enable an application to be refused on grounds of suitability if the applicant has failed to pay litigation costs awarded to the Home Office.
Changes relating to Family and Private Life
7.41. The following changes and clarifications are being made to the Immigration Rules relating to family and private life:
- To enable an application to be refused on grounds of suitability if false representations have been submitted, or there has been a failure to disclose materials facts, in a previous immigration application; or where the applicant has failed to pay litigation costs awarded to the Home Office.
- In respect of the evidential requirements under Appendix FM-SE for the minimum income threshold for sponsoring a partner and any dependent child:
o Allowing a certificate of confirmation of accounts to be provided by an accountant who is a member of the Institute of Financial Accountants.
o Allowing cash savings to be held in a current, deposit or investment account which is provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating and which otherwise meets the requirements of Appendix FM-SE.
o Clarifying that where the applicant or sponsor relies on income from self-employment, or as a director of a specified limited company, all the income relied on by the couple must relate to the same financial year(s).
Insertion of Appendix SN
7.42. Appendix SN is being inserted in the Immigration Rules to specify how certain notices will be served. The notices covered by Appendix SN are:
- (a) that an application for entry clearance, leave to enter or leave to remain in the United Kingdom is invalid;
- (b) that an application for entry clearance, leave to enter or leave to remain in the United Kingdom is void;
- (c) that an application for administrative review is invalid; or
- (d) notifying a person of the outcome of an administrative review application.
Service of these notices is not covered by either the Immigration (Notices) Regulations 2003 or the Immigration (Leave to Enter and Remain) Order 2000 because they are not notices of the types covered by this legislation. Previously, service of such notices has been covered by various provisions in Part 1 and Appendix AR of the Immigration Rules. Appendix SN sets out a unified set of provisions for service of the notice types that it covers, which provides clarity for applicants and Home Office officials. Consequently, redundant provisions regarding service of notices are being removed from Part 1 and Appendix AR, making those sections of the Rules shorter and simpler. The new appendix adopts the same provisions regarding service as the 2003 Regulations and 2000 Order, providing consistency of approach when serving different types of notices.
7.43. Appendix SN clarifies that a postal address outside the UK is not a postal address for correspondence where the person affected is in the UK. A person is unlikely to receive a notice sent to an address outside the UK when the person is in the UK. There is an increased risk that the notice may be lost or received by someone other than the intended recipient if that person is not present at the address to which it is sent.
Changes relating to the Visit Rules
7.44. Part V3 of Appendix V sets out the suitability requirements for visitors. A change is being made to include a discretionary power for an application for a visit visa, leave to enter or leave to remain to be refused where the applicant owes a litigation debt to the Home Office.
7.45. Part V3 of Appendix V also requires an application for a visit visa, leave to enter or leave to remain to be refused where the applicant fails to produce a valid travel document that satisfactorily establishes their nationality and identity. We are making a change to that so that a mandatory refusal is avoided for holders of documents which do not establish a nationality, owing to the holder’s status, but which the UK is otherwise prepared to accept as they are recognised as valid for travel in all other respects.
7.46. Appendix 2 to Appendix V of the Immigration Rules sets out those people who need a visa in advance of travelling to the UK as a visitor, and the exceptions to that requirement. We are making changes to clarify those exceptions and to ensure that they are consistent with the other provisions of Appendix V. We are making a change to Appendix 2 to enable Indonesian nationals who hold diplomatic passports, issued by Indonesia, to travel to the UK visa free as a visitor. We are also making a change to enable persons who are nationals or citizens of a country or territory that is not included in the visa national list and who hold an Emergency Travel Document issued by their country or territory, to transit the UK without a visa to return to the country or territory in which they are ordinarily resident.
7.47. Appendix 2 includes an exception to the visa requirement in respect of nationals of specific countries who hold an Electronic Visa Waiver (EVW) Document. The EVW scheme is being introduced in Kuwait and Appendix 2 has been amended to reflect that.
7.48. Appendix 5 to Appendix V of the Immigration Rules comprises a list of events that are Permit Free Festivals. Permit Free Festivals are events that are assessed as contributing to the cultural heritage of the UK and at which performers can, exceptionally, be paid for their participation as visitors. Visitors cannot normally receive payment from a UK source for any permitted activities they undertake here. The list has been updated for 2016/17.