Changes to Immigration rules – 16 October 2014
Further changes to the immigration rules have been introduced by Statement of Changes: HC693, on 16 October 2014. These changes, some key and others minor or clarifications are across the full spectrum of immigration law. Some of these changes introduce subjective assessment of the applications that remained unscathed so far, under the, at inception, objective Points Based System. Some of the changes come into effect today and others at future dates.
Changes taking effect on 20 October 2014
Section 15 of the Immigration Act 2014, which replaces the appeal rights for in country Tier 4 migrants and its dependants with administrative review comes into effect on 20 October 2014. A Tier 4 migrant and its dependants who have made a Tier 4 application on or after 20th October 2014 will no longer be able to appeal against the decision of the Secretary of State if their application is refused. Instead they will be able to seek administrative review of the decision in order to have the errors of the case worker rectified in a more expedient way than an appeal to the First Tier Tribunal.
The case working errors that will be considered under administrative review are ;
- the decision maker applied the wrong immigration rules,
- the immigration rules were applied incorrectly,
- points were added up incorrectly,
- error in calculating the correct period of immigration leave held / to be granted,
- failure to consider all submitted evidence,
- evidence submitted considered incorrectly,
- reached unreasonable decision on the credibility of the applicant,
- decision to refuse on the basis of the supporting documents were not genuine was incorrect,
- decision to refuse application on the basis that the supporting documents did not meet the requirements of the immigration rules was incorrect,
- application incorrectly refused on the basis that it was made more than 28 days after leave expired ,
- failure to apply policy and guidance.
As with an out of country administrative review, no new evidence will be considered except for some exceptions.
The possible outcomes of an administrative review are: the original decision may be overturned, in which case the application fee will be refunded; the decision may remain in force; have a reason for refusal withdrawn or have additional reasons given.
There will be only one administrative review in respect of a decision, however, if the outcome of the review is that additional reasons for refusal are given, then a further administrative review application may be made.
If an application to vary leave is submitted when existing leave is valid then on the expiry of the leave, if application remains to be determined, their leave is statutorily extended under section 3C of the Immigration Act 1971. Section 3C of the Immigration Act 1971 has been is amended to cover the period while application for administrative review is pending.
The Home Office is required to give notice to persons of their right to apply for administrative review of the decision. A valid application (online or paper) for administrative review will have to be made within 14 calendar days (7 days for those in detention) following receipt of the decision, by paying the specified fees and completing mandatory parts of the form.
Where appropriate, reference to administrative review has been added to the Immigration rules.
There will no longer be an appeal right nor administrative review against deportation of foreign criminals and their family members. However, the appeal rights will continue to exist for those who make an application for leave to remain in the UK based on protection or human rights claim.
The spouse/ civil partner/child of person against whom a deportation order has been made, will not be deported if they qualified for settlement in their own right
Changes taking effect on 6th November 2014
Knowledge of Language and Life
Those applying for indefinite leave to remain must comply with a request to attend interview and /or retake the relevant test to satisfy the Secretary of State that the knowledge of language and life requirement is met.
If there is reasonable cause to doubt the genuineness of a document submitted by an applicant in relation to satisfying the English language requirements, it can be disregarded
Validation of Immigration applications
The dependants over 18 can be included on an application where permitted to by the rules.
The requirement to make a valid application does not apply where an Art 8 claim is raised as part of an asylum claim / further submissions in person after an asylum claim has been refused, where the migrant is in detention or in an appeal.
Where removal is contrary to the UK’s obligations under Article 8, the Secretary of State may require an application or consider without application, any claim under 276 ADE or under para R-LTRP 1.1…..and EX.1.
Appendix FM and Appendix FM- SE: Minimum income threshold requirement
Funds held in an investment account can be relied on if transferred to an eligible bank account within six months prior to application.
Academic stipend or grant paid for at least one full academic year to be considered as income.
Sponsor / applicant living in UK can take into account their overseas work.
Self-employed person of state pension age can demonstrate their self-employment by relying on alternative evidence – such as ongoing payment of business rates or of business related insurance premiums.
An equity partner in a law firm can demonstrate their partnership through a letter from solicitor, accountant or business manager acting for partnership.
English language requirement for partners/ spouses applying for limited leave to enter or remain in the UK
A new test certificate to evidence A1 level English must be provided if the previous certificate relied upon has been withdrawn by provider.
If there is a reasonable cause to doubt the genuineness of a document submitted by an applicant for satisfying English language requirements, it can be disregarded
Changes taking effect 6th November – application made before 6th will be decided in accordance with rules in place on 5th November 2014.
Tier 1 (Exceptional Talent) – English language test
A change is introduced to extend the length of leave granted from three to five years.
The English language test requirement is removed for extension applications.
Several changes have been introduced to the criteria applied by Designated Competent Bodies when considering endorsement applications.
The criteria applied by The Arts Council clarify the documentary requirements and align the letter requirements for exceptional talent and exceptional promise to be assessed in single application.
The criteria and list of notable industry awards is expanded for applicants in the film, television, animation post –production and visual effects industry.
Tier 1 (Entrepreneur)
For those making an in country application, a requirement is introduced that the funds to be invested in business must be held in the UK.
A number of clarifications to specified evidence and technical clarifications have been made.
When applying for indefinite leave to remain, a Tier 1 (Entrepreneur) migrant is not required to provide evidence of their investment in business if they awarded points for it in previous application.
Tier 1 (Investor)
These changes do not apply retrospectively, so all those already in the UK, under the route will not be affected when applying for an extension or indefinite leave to remain.
- As of 6th November 2014, the minimum investment threshold will be raised to £2 million.
- The current provision under which the required investment sum can be sourced as a loan is removed.
- The full investment sum will have to be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK Government bonds), rather than 75% of the sum as at present.
(“Active and trading UK registered companies” means companies which:
- (a) have a registered office or head office in the UK;
- (b) have a UK bank account showing current business transactions; and
- (c) are subject to UK taxation. )
- The Tier 1 (Investor) migrant will no longer be required to top up the investment if its market value falls. Instead if they sell part of their portfolios they will have to purchase new qualifying investments in order to maintain the investment threshold
- There is an introduction of subjective test to allow Entry Clearance Officers and UK Visas & Immigration caseworkers to refuse an application if they have reasonable grounds to believe that:
- the applicant is not in control of the investment funds;
- the funds were obtained unlawfully (or by means which would be unlawful if they happened in the UK); or
- the character, conduct or associations of a party providing the funds mean
- that approving the application is not conducive to the public good.
Tier 1 (General)
There are minor adjustments to the length of grant to the extent that the applicant will either be granted three years or the balance they need to take their time in the category to five years so that the applicants can accrue five years leave under the route before the closing date. Future adjustments to the route will be considered after April 2015.
A genuine vacancy test will apply to Tier 2(ICT) and Tier 2(General). This change gives the entry clearance officers and caseworkers the authority to undertake subjective assessment of whether a vacancy: exists in practice for a position on offer; meets the Tier 2 skills threshold; is not created for a specific individual in mind and tailored to exclude resident workers; and that the applicant is qualified to do the job on offer.
A change is introduced to relax the requirements for Resident Labour Market Test where an applicant makes an extension application to continue to work in the same job for the same sponsor with 28 days after the expiry of their leave.
A minimum salary threshold of £20,500 waiver applies where the applicant is undertaking the Overseas Nursing Programme or Adaptation to Midwifery Programme and has obtained permission from the Nursing and Midwifery Council prior to 30 March 2015; or sponsored as a nurse or midwife in a supervised practice placement and will continue to be so sponsored after achieving the required registration and will be paid £20,500 on registration; or the migrant is undertaking professional exams, which are a regulatory requirement of the job the migrant is sponsored to do and the migrant continues to be sponsored during that period.
An exemption for NHS jobs from the requirement to advertise on Jobcentre Plus is extended to 6 April 2015 (i.e. between 19 November 2012 and 6 April 2015).
Tier 2 (Sportsperson)
A change is made to the conditions of leave granted Tier 2 sportspersons to allow them take up additional job as a sports broadcaster.
Tier 4 (General)
A migrant is required to obtain a new ATAS (Academic Technology Approval Scheme) certificate within 28 calendar days if the course content changes or course completion date is postponed by more than 3 months. If a student wants to start a new course that requires ATAS clearance, it must be obtained prior to commencing the new course.
Introduction of new prohibited change to employment for Tier 2 and Tier 5 migrants, unless further leave to remain application expressly permits this.
Tier 5 (Government Authorised Exchange)
Two work experience schemes are to be introduced: Twin Training International offers work experience for overseas engineering graduates / undergraduates; and an exchange between the Scottish Schools Education Research Centre and the Development Centre, Ministry of Education in China.
Appendix Armed Forces
A clarification is provided that relevant civilian employees are employed by individual NATO force as opposed to NATO as an organisation.
A maximum of five years leave will be granted to civilian employees of a NATO force and their dependants even if their documentary evidence stipulates a shorter period.
Applicants will be permitted to switch in country and take up employment as a relevant civil employee where they initially entered as an exempt member of a visiting force.
Dependants of armed forces, subject to control, are prevented from switching into that category in line with their sponsor
Relevant civilian employees and exempt visiting forces are permitted to sponsor dependants other than spouse and children where this is covered by legislation and the individual in question is named on sponsor’s movement order / letter.
General grounds for refusal aligned with the rest of the immigration rules.
Can bring dependants (spouse/partner and child)
Those coming to the UK to act as an organ donor or for assessment as suitable organ donor to enter as general visitor as opposed to a private medical visitor/ outside the immigration rules.
New activities are added to the list of permissible activities in UK to allow: scientists and researchers to share knowledge, expertise and advice on an international project which is being led by the UK; overseas lawyers, who are employees of international law firms with offices in UK, to provide direct advice to clients in the UK on litigation or international transactions. These activities are subject to the same requirement as for other business visitors, i.e. that individuals entering under the route remain paid and employed overseas.
Graduates of overseas nursing schools coming to sit the Objective Structured Clinical Examination (OSCE), which is a pre-requisite for overseas nurse to work in UK under Tier 2, to be admitted as Business Visitors.
A change is introduced to ensure that a visitor coming to the UK to get married or form a civil partnership cannot do so for the purpose of entering into sham marriage.
Not sure how this is a change as preventing sham marriages has always been the objective of the rules.
Overseas Domestic Workers in a private household
Changes to this route are being introduced to align the rules for Overseas Domestic Workers with visitor visa rules and to “prevent abuse by those who are living in the UK through frequent, successive visits and provide added protection to workers against exploitation…”
Private Medical Treatment
The length of time for which those coming to UK to receive private medical treatment is to be extended from six months to 11 months where there is evidence to demonstrate that the treatment is likely to exceed six months .
A further extension of six months can be granted if there is an ongoing need to receive medical treatment in the UK.
Applies across PBS
Any documents/ information requested by Entry Clearance Officer / Secretary of State to process entry clearance/ leave to remain application must be received by them with in 28 calendar days as opposed to 28 working days from the date of request.
Changes taking effect on 1st December 2014
Transit by visa nationals –
A change is introduced to require a visa national that transits landside through the UK to either have a visa enabling their admission to UK or to meet requirements for transit without visa scheme, i.e. to hold an exemption document. Irish biometric visas and Australian and New Zealand residence permits have now been added to the existing list which was part of the previous concession.
Changes taking effect on 1st January 2014
The annual allocation of places for countries participating in YMS for 2015. There is 16% increase in allocation for New Zealand.
October 22, 2014 Read more