Immigration update

Immigration law practice and procedure: 
Statement of changes in Immigration Rules

Jawaid Luqmani recaps the changes introduced under HC 877.

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

The changes, which include those listed below, took effect on 6 April 2016, with applications which were pending as at that date being decided in keeping with the rules in force before the amendments. Among other things, the changes:

• Amend the definition of public funds for the purposes of paragraph 6, consistent with legislation affecting Scotland and Northern Ireland as well as including discretionary payments made under Localism Act 2011 s1 (in relation to general powers as opposed to, for example, specific powers under Children Act (CA) 1989 s20).
• Update the source of regulations for the purposes of payment of fees in connection with applications for entry clearance.
• Introduce new Appendix SN dealing with the service of notices and making consequential amendments to remove provisions that have become redundant. The appendix sets out how notices may be served (including electronically), and includes provisions permitting service on the Home Office file and for that to be deemed as being served (Appendix SN1.6).

 This Statement of Changes in Immigration Rules will be incorporated into a consolidated version of the Immigration Rules. Copies of all the Statements of Changes since May 2003 are also  available

• Include a requirement that a person seeking entry as a short-term student must genuinely be intending to enter in that capacity.
• Clarify that, for the purposes of meeting the English language requirement for sole representatives, Tier 1 (General) Migrants and Tier 4 (General) Students and Appendix B, the requirement to have confirmation from the UK National Recognition Information Centre of the equivalence for language purposes, will only apply to educational establishments outside of the UK.
• Amend paragraph 159B, allowing a domestic worker in a private household to take employment with a different employer from that for which entry clearance was originally granted as well as persons granted leave as Tier 5 (Temporary Worker) migrants on the basis of the international agreement subcategory, but in this case for a maximum of six months only (or less if the remaining leave is less than six months).
• Extend the initial maximum period of leave to be granted to persons as victims of slavery or human trafficking from six months to two years.
• Permit individuals, who have last been granted leave to attend an independent school (which is defined for the purposes of paragraph 6), to switch to the Tier 1 (Entrepreneur) Migrant or Tier 1 (Investor) Migrant route, or the Tier 4 Migrant route.
• Provide for a minimum salary for Tier 2 (General) Migrants from April 2021.
• Clarify the basis of calculating the maximum period of time permissible for leave as a Tier 4 Migrant.
•  Extend the maximum eight-year period to include those in the UK for postgraduate research qualifications or a Master’s degree by research on a par in time terms with those here for PhD studies.
• Amend the restrictions on the institution for study by an individual granted leave as Tier 4 Migrant (where there is a change of institution).
• Extend the reasons why an individual may be refused leave to remain on the ground of private life to include failure to pay litigation costs awarded to the Home Office under Appendix FM S-LTR .4.4, as well as under the suitability requirements for the purposes of entry clearance under Appendix FM, or to those seeking to enter or remain under Appendix Armed Forces, and includes this as a reason yonder the general ground of refusal normally leading to a refusal of entry clearance, leave to enter or leave to remain as well as in respect of visitors.
• Reduce from £1,000 to £500 the size of the debt owed to the NHS that would normally result in refusal under the general grounds of refusal, and specifically inserts this figure into the rules for visitors under Appendix V3.14.
• For the purposes of evidencing self-employed income under Appendix A, the letter from the accountant must be from an individual who has a valid current practising certificate or licence to practice.
• Permit UK seed funding to be the source of funds for the purposes of Tier 1 (Entrepreneur) Migrants.
• Impose additional evidential requirements for persons seeing to remain as Tier 1 (Entrepreneur) Migrants relying on funds from a venture capital firm.
• Reduce from 25 to 20 the points available to Tier 1 (Entrepreneur) Migrants for the specified level of funds held.
• Require persons seeking indefinite leave as Tier 1 (Entrepreneur) Migrants to have already registered with HM Revenue and Customs or Companies House within six months of arrival, or at the date of grant of leave to remain, as well as to show that they are still registered as at the date of the application for indefinite leave, unless they had demonstrated this previously with the earlier application for leave as a Tier 1 (Entrepreneur).
• Impose evidential requirements for the purposes of showing the financial success of a business established, taken over or invested in by individuals in the Tier 1 (Entrepreneur) Migrant category seeking indefinite leave to remain after three years.
• Require that where part-time employment created is used as evidence to support an application under the Tier 1 (Entrepreneur) route, the part-time employment created must be simultaneous and not consecutive, ie, it must be of a full-time equivalence for the relevant period of time.
• Tighten the information required for Tier 1 (Graduate Entrepreneur) Migrants seeking to rely on endorsement by a qualifying body.
• Create a new table of monthly allocation limits for the purposes of Tier 2 (General) Migrants.
• Require the application for entry clearance of a Tier 2 (Minister of Religion) or Tier 2 (Sportsperson) Migrant to be made within three months of the start of employment.
• Permit applicants under the Tier 4 (General) Migrant category, who are seeking entry for a short-term study in the UK as part of their course at a US educational establishment on a course equivalent to a Bachelor’s or Master’s degree or in the UK, to be treated as meeting the language requirement.
• Tighten the requirements for Tier 4 Migrants to show academic progress in studies, if seeking leave to remain in a course different to that for which the original confirmation of acceptance of studies was issued.
• Amend the provisions for administrative review to enable consideration of evidence not before the original decision-maker in cases involving refusals based on false representation or failure to disclose material factors, but not where the individual has previously been served with a refusal decision; revocation; cancellation; curtailment; or removal relying on the same facts.
• Replace the table under Appendix C (financial attributes) for Tier 5 (Temporary Worker) Migrants, so as to require the A-rated sponsor to certify maintenance.
• Amend the rules under Appendix C requiring persons seeking leave to remain as postgraduate doctors or dentists in recognised foundation programmes, or student union sabbatical officers to meet the financial evidential requirement concerning showing available funds.
• Remove the limiting reference to a child not having an established presence in the UK for the purposes of meeting the financial requirement under Appendix C for Tier 4 (Child) Students.
• Increase from £560 to £570, the monthly amount to be demonstrated as being available to a carer looking after a Tier 4 (Child) Student under 16 for the purposes of Appendix C.
• Permit refusal on the ground of suitability under Appendix FM where false representations or a failure to disclose material facts in respect of obtaining previous leave or obtain a document indicating an entitlement to reside in the UK. This will apply to both time limited as well as indefinite leave applications under Appendix FM.
• Include members of the Institute of Financial Accountants as persons who can provide information acceptable for the purposes of establishing self-employed income under Appendix FM-SE .
• Include sums held in current accounts for the purposes of calculating cash savings provided held in a financial institution regulated by the relevant body where the funds are held for the purposes of Appendix FM-SE .
• Clarify that for the purposes of calculating income for Appendix FM-SE , the earnings of a partner in the UK are to be used in calculating the funds where the person in the UK has permission to work.
• Amend the rules requiring either a proven track record or the potential so as to permit an individual to be nominated under Tier 1 (Exceptional Talent) Migrant by Tech City UK.
• Expand slightly the category of persons that can be nominated by Tech City UK to include those working in a new digital field or concept.
• Reduce from three pages to two the maximum length of a CV to accompany an application from an individual nominated by Tech City UK under the Tier 1 (Exceptional Talent) Category, and limit the supporting evidence documents to two pages for each document and any evidence of continuous learning dating back no more than one year before the application is submitted.
• Require separate letters from two different organisations in the digital technology sector for the purposes of supporting an individual nominated by Tech City UK in this category, but permit the writer to refer to an individual’s potential rather than just their exceptional talent, which letters should be specifically for the purposes of the application rather than in general terms.
• An applicant in this category is also required to provide details of any active businesses or businesses dissolved within the fiveyear period preceding the application, in which the applicant has been involved in a significant way.
• An application in this category is required to satisfy Tech City UK that the published eligibility criteria have been met, and Tech City UK will advise the Home Office whether or not an application is endorsed.
• Make some specific changes to the Tier 5 list of approved government exchange programmes under Appendix N.
• Remove from the suitability requirements, the inability to produce a document establishing a person’s nationality if the individual is stateless or otherwise unable to obtain a document for the purposes of Appendix V.
• Indonesia is added to the countries under Appendix 2 to Appendix V for which there are exceptions (ie, there is no need for a visit visa for citizens of that country who hold a diplomatic passport).
• Transit visitors from non-visa national countries travelling on emergency travel documents are not required to obtain a visa before travelling back to the state where they are ordinarily resident.
• Clarify that the exceptions within Appendix 2 to Appendix V, where a visa would not be required as a visitor, will not apply where the individual is visiting the UK in order to marry; form a civil partnership; or give notice of such a union; or who are seeking to enter the UK for more than six months.
• Kuwait is added to the list of countries which are exempt from the need to obtain a visa where nationals hold an electronic visa waiver (EVW) document provided that the citizens of those countries use the EVW in the correct manner specified under the rules (otherwise they would normally be refused entry) and provides a replacement for the hyperlink setting out of the requirements for such a document.
• The list of festivals within Appendix 5 to Appendix V (where artists, entertainers and performers can attend permit free and be paid) is amended.

Fees

The level of most fees was increased from 18 March 2016 under the Immigration and Nationality (Fees) Regulations (IN(Fees) Regs) 2016 SI No 226. There remain exemptions for persons making applications based on asylum or humanitarian protection, or for certain family members (pre- flight spouses and dependent children) seeking family reunion or for children supported under CA ss17 or 20 by a local authority (see IN(Fees) Regs Table 9 para 9.1; Table 4 para 4.2; and Table 9 para 9.6 respectively).

The Immigration (Health Charge) (Amendment) (I(HC) (Amendment)) Order 2016 SI No 400 came into force on 6 April 2016. The I(HC) Amendment Order amended the Immigration (Health Charge) Order 2015 SI No 792 by reducing the fee payable by Tier 5 (Youth Mobility Scheme) Temporary Migrant applicants from £200 to £150 and removing the specific exemption for citizens of New Zealand and Australia, whose nationals had not been required to make payment under the original order.

The Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) (CPFPUT Fees (Amendment)) Order 2016 SI No 402 introduced a number of increases relevant to court fees payable in connection with judicial review claims for immigration practitioners. Applications on notice within judicial review proceedings for which no fee had otherwise been specified were increased to £255 whether in respect of proceedings in the Administrative Court or in the Upper Tribunal, with the fee payable on the lodging of consent orders rising from £45 to £100 (see CPFPUT Fees (Amendment) Order para 2(c); para 4(a); and paras 2(c) and 4(b) respectively). These increases took effect from 21 March 2016.