Immigration update

Immigration practice and procedure update: Statement of changes to immigration rules

Jawaid Luqmani summaries the changes introduced under HC 535, including those provisions which will come into effect from April and from May 2016.

About the author
Jawaid Luqmani is a partner at Luqmani Thompson Solicitors, London.

The changes under statement of changes in immigration rules HC 535 include the following provisions:

A definition of voluntary fieldwork, for the purposes of Tier 5, to limit the types of activities permitted.

• Provide greater protection against being refused readmission as returning residents, where the partner or spouse is serving with HM Forces overseas, or working in a diplomatic or other specified government-based activity.
• Permit a decision-maker to discount evidence to satisfy the knowledge of language and life in the UK requirements, where the decision-maker has reasonable doubt that the evidence is genuinely obtained, with discretion, but not an obligation, to otherwise satisfy the decision-maker as to their ability to meet the requirements of Appendix KoLL. 
• Increase the evidential requirements to be met for persons seeking to enter or remain as sole representatives of businesses based overseas.
• Tighten the evidential rules for those seeking to gain entry as Tier 1 investors.
• Tighten the rules so as to control the date of travel for those granted entry as Tier 2 Migrants, including those in the minister of religion and sportsperson categories.
• Require a minimum salary for Tier 2 Migrants of £35,000 as from 6 April 2016 (and other increases from April 2018, April 2019 and April 2020), which would also apply to persons already here and be a barrier on an application for indefinite leave to remain succeeding if the rate is below that specified, unless in respect of a certificate of sponsorship issued before 6 April 2011, or on a shortage occupation list and the pay available to be used for the calculation would be limited to 48 hours per week where an individual is paid on an hourly basis. However, this pay rate does not apply to the minster of religion category.
• Prevent asylum claims being made from persons holding nationality of another EU member state unless exceptional circumstances apply, such as the country of which they are a national has derogated from the European Convention on Human Rights (‘ the convention’ ), or a decision has been made or has been initiated with respect to believed breaches by a state of significant EU treaty obligations. If a claim is said to be inadmissible, then refusal will not result in an appeal right but would be capable of challenge only through judicial review.
• Extend the power to refuse refugee leave to persons in respect of whom the secretary of state is satisfied have instigated or otherwise participated in crimes or acts said to fall within article 1F.
• Permit the secretary of state to revoke or not renew refugee status where a person had used misrepresentation, including false documents which were decisive for the grant of status, or where the secretary of state believes that a person represents a danger to the security of the UK or has been convicted of a particularly serious crime and is believed to constitute a danger to the community.
• Remove certain procedural safeguards against the revocation or refusal to renew where a person has renounced their refugee leave, and also enables the revocation procedure to be concluded while the person is outside the UK.
• Similar provisions as to the revocation or noncontinued on page 30 renewal of humanitarian protection are also introduced to include the misrepresentation category. 
• Restrict the issue of travel documents to family members of those given refugee status or humanitarian protection only to those who fall within paras 352A-352 FJ, ie, pre- flight spouses, unmarried or same-sex partners or children under the age of 18.
• Contain the Association of Accounting Technicians as being a reliable source as a means of verifying earnings in the UK for the purposes of Tier 1 applications.
• Tighten the rules about evidence for the purposes of showing funds available for investment in the Tier 1 category.
• Tighten the rules about Tier 2 (Intra-Company Transfer) Migrants.
• Restrict the certificate of sponsorship for Tier 2 (Sportsperson) Migrants and Tier 5 in the Creative and Sporting subcategory.
• Amend the administrative review definition of case-working errors in respect of refusals of leave or cancellation of leave based on allegations of deception.
• Permit an exemption to an element of the English language test requirement where the exemption is based on the ground of disability.
• Amend the suitability criteria for the purposes of entry clearance as a child to prevent admission where the sponsor or sponsor’s partner poses a risk to an applicant if they (the sponsor or partner) have a conviction (as an adult) against any child or are registered as a sex offender or required to comply with a sexual risk order and have failed to comply with any relevant requirements.
• Amend the suitability requirement for leave to remain where notice has been given to an applicant and the partner that either has failed to comply with an investigation about the proposed marriage or civil partnership (sham marriage/ civil partnership).
• Amend the evidential requirement for proving that the English language test requirement is satisfied for the purposes of Appendix FM-SE .
• Delete Appendix I, which related to the requirements about rates of pay for Tier 2 Migrants, now dealt with explicitly within the rules as from April 2016 (see above).
• For the purposes of employment in fields under the shortage occupation list, restrictions on which companies would be able to employ persons in this category and also placing a potential limit on the number of employees falling within this category.
• Amend the roles identified as falling within the shortage occupation list within the IT sector.
• Add all nurses to the shortage occupation list (not just in Scotland).
• Remove some of the evidential requirements for welders and chefs about previous references.
• Amend Appendix KoLL to remove the B1 English language test (unless via the online verification system from an approved language test provider), the UK National Recognition Information Centre test for those undertaking studies outside of the listed UK speaking countries, or the national qualification test taken in Scotland as meeting the requirement for the purposes of indefinite leave to remain applications.
• Replace the differing types of evidence to demonstrate the ability to meet the language test with the requirement of the unique reference number assigned to the test taken or specific alternative evidence where an exception is to be relied on.
• Amend the endorsement criteria for persons seeking to be treated as falling within the exceptional talent category in the digital technology sector.
• Amend the approved Tier 5 government exchange schemes.
• Amend the visitor rules to clarify that persons seeking to come to the UK in order to study for a short course of up to 30 days will need to do so as a student and not under this category as the study cannot be the main purpose of the visit.
• Amend the visitor rules to prevent persons using the rule solely to undertake volunteering.
• Set the new quota for Tier 5 as between the participating nationalities significantly increasing the numbers for Australia and New Zealand.
• As from 19 May 2016, require applications under the immigration rules to join or remain with an EEA national with a permanent right to reside to be limited to those EEA nationals who are in possession of a document certifying that they have permission to remain indefinitely. This absence of documentary proof would not necessarily prevent entry being sought under community law, but only where the application is made under the immigration rules.

Health charges

The issue of ‘health tourism’ has been raised as a further pull factor in encouraging individuals to come to the UK, and a number of measures introduced in April 2015 were designed to address the identified concern. The power to introduce such charges was provided for under Immigration Act 2014 ss38 and 39.

Practitioners may be aware that very many applications, whether made overseas or in country, now attract the requirement of a fee calculated by reference to the length of leave being sought (Immigration (Health Charge) Order 2015 SI No 792 article 4). This also includes persons seeking leave to enter or remain where the leave sought is outside of the immigration rules (article 5). An application in respect of which the required fee is unpaid will require an applicant to pay any sum owing within 10 working days (seven working days in respect of entry clearance applications) and if not paid within that specified period, the application will be treated as invalid (or subject to mandatory refusal in the case of entry clearance applications) (article 6(1)) .

Although there is discretion to reduce, waive or refund all or part of the charge under article 8, under Schedule 2 there are some applications in respect of which a person is exempt from paying a fee altogether, namely:

• persons seeking leave to enter for six months or less;
• persons seeking entry under transitional provisions relating to visitors (before 24 April 2015);
• Tier 2 (Intra-Company Transfer Migrants);
• leave to remain for a looked after child under the age of 18;
• leave to remain in respect of an asylum or humanitarian protection, or where it is claimed that removal would breach the UK’s obligations under article 3 of the convention.
• leave to remain relating to human trafficking;
• persons applying under the destitution domestic violence concession;
• dependants of those in the categories referred to above;
• dependants of persons seeking to enter or remain as a dependant of a member of HM Forces or a person exempt from immigration control;
• Persons seeking entry under community law;
•  Nationals of Australia, New Zealand or British Overseas Territory Citizens resident in the Falkland Islands (Sch 2 paras 2 and 3).

On the same date, 6 April 2015, the National Health Service (Charges to Overseas Visitors) Regulations 2015 SI No 238 imposed a duty under, article 3, on NHS trusts to impose and recover costs for services provided to overseas visitors unless exemptions applied, which includes persons here as refugees and asylum-seekers (articles 15(a) and 15(b) respectively), and includes persons here who had paid (or were treated as exempted from paying) the immigration health charge (article 10). In addition, services for accident and emergency, services for the diagnosis and treatment of sexually transmitted diseases, services for the treatment of a condition caused by, for example, domestic violence and female genital mutilation, and family planning services (under article 9) or certain listed diseases including plague, anthrax and rabies (under Sch 1) also fall outside of the charging regime. There are also exemptions in respect of EEA nationals and countries operating reciprocal agreements (Sch 2); however, for many individuals seeking services or even for some providing services, the complexity of who is chargeable or exempt, and for or from which service, is inevitably going to mean that some individuals who may be eligible for treatment do not seek it or possibly seek it, but do not get it.