Immigration update

Immigration law and practice update

Jawaid Luqmani reviews the latest changes in immigration rules, and describes the guidance on cases involving people affected by the Grenfell Tower tragedy.

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

Statement of changes in immigration rules¹

HC290 introduced changes that applied to decisions made on or after 10 August 2017, and include the following:

Clarification that applications made by persons, who are here as EEA nationals with a permanent right of residence, are required to provide proof by holding one of two types of document.

• The introduction of a new category of exceptional circumstances under GEN.3.1. for the purposes of meeting the financial requirement:
  - where the refusal of entry clearance or leave to remain could amount to a breach of article 8 of the European Convention on Human Rights (‘ the convention’) due to unjustifiably harsh consequences for the applicant, partner or a relevant child enabling a decision-maker to take into account additional (specified) sources of income or financial support or funds; and - where the refusal of entry clearance or leave to remain could amount to a breach of article 8 of the convention due to unjustifiably harsh consequences (despite not meeting the financial threshold), but will not apply for the categories of bereaved partner or domestic violence.
• All such exceptional circumstances applications under Appendix FM must take account, as a primary consideration, the best interests of any relevant child, being under 18 as at the date of application.
• Where entry clearance or leave to enter is granted on the basis of the newly created rules on exceptional circumstances, it will normally be subject to a condition of ‘no recourse to public funds’ unless there is evidence that an applicant would be destitute within the meaning of section This article explains the latest Statement of changes in immigration rules and describes the guidance on cases involving people affected by the Grenfell Tower tragedy 95 of the Immigration and Asylum Act 1999 (the National Asylum Support Service level threshold for financial eligibility) or there is evidence as to particularly compelling circumstances relating to the welfare of a child of a parent with a very low income.
• Where the exception has been applied, the individual will only become eligible to apply for settlement after a period of 120 months (under D-ECP.1.2.) whereas the period for those who are granted either entry clearance or leave to remain as partners (without relying on the exceptional category created) would continue to be eligible for settlement after 60 months (under D-ECP.1.1.) similar amendments are made to give effect to this change to the revised paragraph E-ILRP.1.3..
• Similar changes are made to extend the period of leave to 120 months for children granted leave to enter or remain where such exception has been applied under amended D-ECPT.1.1. and D-ECPT.1.2., with similar amendments to D-LTRPT.1.2. and E-ILRPT.1.3..
• Paragraph EX.1.(a)( ii) is amended to make reference explicitly to the best interests of the child as being a primary consideration in the context of the genuine and subsisting parental relationships.
• The introduction of formalised rules as to what evidence of third party support would be considered to be acceptable and the limitations on when that would be accepted for the purposes of Appendix FM-SE.
• The newly created Appendix FM-SE paragraph 21A will only apply where the exception aimed at avoiding a breach of article 8 of the convention (avoiding unjustifiably harsh consequences) under GEN.3.1. would apply and would enable credible guarantees of sustainable financial support from a third party; credible prospective earnings from sustainable employment or self-employment ; or credible and reliable sources of income or funds available at the date of application or during the period of leave applied for. This would apply for the sponsor and partner, or in respect of the parent of a child.
• The onus would be on the applicant to show that the funds are genuine, credible and reliable, and cannot be from a loan unless from a mortgage (from a regulated financial institution) on a property in the UK or overseas owned by the applicant, partner or third party sponsor.
• Cash savings or current financial investment have to be in the name of the applicant or partner (or both) and under their control as at the date of the application.
• In considering the genuineness, credibility and reliability of any third-party support, matters to be taken into account will be whether the evidence provided is verifiable, signed, dated and witnessed; the extent to which the third party has supported the individual in the past; as well as the likelihood of a change in the third party’s financial situation or relationship with the applicant or their partner.
• In considering potential prospective earnings or self-employment : whether there is a specific offer of employment or a clear basis for self-employment, in either case, which is likely to arise within three months of the individual’s arrival in the UK; whether the evidence is documented and verifiable, for example, being on letter-headed notepaper, signed, dated and witnessed, accompanied by a draft employment contract, with details of the size of the work force of the employer and the turnover of the potential employer, or where the employer is either a family member or friend, the likelihood of any change in the relationship.
• In respect of any other credible and reliable source of income or funds, the extent to which the funds have been verifiably documented, including as to current and past ownership.

Grenfell Tower fire : handling immigration cases

Grenfell Tower immigration cases (guidance on handling cases involving survivors and other individuals directly affected by the fire) was issued in August 2017 for Home Office staff to enable them to consider applications for persons so affected.² The guidance applies only to those within the UK, and does not cover relatives of persons directly affected by the fire or those who do not fall within one of the categories set out within the policy.

This guidance is intended as a ‘short-term policy for the purposes of granting leave outside the Immigration Rules to provide support and stability while those directly affected by the fire deal with its immediate aftermath. Invitations under this policy can be taken up by following a designated process until and including 30 November 2017. After this date consideration of cases will continue, but no further invitations will be made.

The policy enables those who are eligible, ie, residents of Grenfell Tower on the date of the fire (whether present or not on that date) or living close to the Tower who have been displaced from their place of residence and who either:

have no leave (including illegal entrants); or

• are EEA nationals who are not exercising treaty rights; or
• are persons with less than 12 months leave as at the date the policy was announced; or
• are failed asylum-seekers without outstanding submissions; or
• are persons refused asylum who are appeal rights exhausted.

Under the policy, these individuals will be granted a period of 12 months on an exceptional basis, and it will enable those affected to seek a lifting of any restriction on public funds, if they have pre-existing leave subject to such a condition, for the maximum 12-month period and permission to work. Any further application is likely to be considered by reference to the rules in force at the time of any extension request being made. However, the categories of people excluded from the benefit of the policy are as follows:

• foreign national offenders subject to deportation proceedings;
• persons excluded from asylum under article 1F of the Refugee Convention;
• persons subject to terrorism prevention and investigation measures;
• persons subject to a deportation order;
• persons for whom there are concerns about criminality, character or associations, including extremist behaviour;
• persons who have failed security checks; or
• persons refusing to supply their biometrics.

There is no application form or fee required for such applications (including the biometric registration or payment of the immigration health surcharge), instead applicants will be invited to complete a short pro forma. This invitation must be taken up in person at a designated location by 30 November 2017.³ Consideration of cases will continue, but no further invitations will be made after this date. A new case may not access this policy from 1 December 2017. The Home Office will not consider written correspondence from those who consider that this policy may apply to them. Refusal of leave under the policy will not attract a right of appeal or be considered for an administrative review.

1 Available at: http://tinyurl.com/y9jjx5tu
2 Available at: http://tinyurl.com/ydfnopoj
3 Details of the designated location can be found by checking the Grenfell Tower fire : support for people affected page at: www.gov.uk/guidance/grenfell-tower-fire-june-2017-support-for-people-affected.

 This location may be subject to change. Individuals can also contact the Home Office helpline for further information, tel: 0300 3032832.