LexisPSL produces news pieces or detailed analysis pieces on each new Statement of Changes in Immigration Rules. Our analysis pieces are drafted from a lawyer’s perspective and provide practical guidance on the reasons for the changes and the significance of these for immigration lawyers and their clients. These are grouped under a dedicated topic in PSL Immigration for easy reference to historical changes.
This analysis considers the main changes to the Immigration Rules (the Rules) set out in HC 1154. HC 1154 was issued on 15 June 2018, along with an Explanatory Memorandum (EM). It covers the following changes of interest to business immigration advisers:
- amendments to Tier 2 (General), including:
- exempting doctors and nurses from having to apply for a Tier 2 (General) restricted certificate of sponsorship (RCoS)
- prohibiting Tier 2 migrants from holding more than 10% of the shares in their sponsor indirectly
- adding references to the Find a Job service, which has replaced the Universal Jobmatch service for the purposes of satisfying the resident labour market test (RLMT)
- changes to the Rules relating to indefinite leave to remain (ILR) for main applicants and their dependants in work categories on how absences from the UK are to be treated, including:
- introducing a transitional arrangement for the new calculation of the absences rule set out in HC 309 (see Practice Note: Statement of Changes in Immigration Rules, HC 309—analysis—Part 5 and PBS categories that lead to settlement), so that the new calculation does not apply to absences occurring during leave granted under the Immigration Rules in place before 11 January 2018—this has been put in place following extensive lobbying from advisers and other immigration system users
- amendments to the Rules on when continuity of leave will not be considered to be broken, so that the situation where fresh leave is granted via entry clearance abroad is not treated less favourably than if it had been applied for as further leave to remain in-country
- minor amendments to the Tier 1 (Investor) and Tier 1 (Entrepreneur) sub-tiers
- expansion of the Tier 1 (Exceptional Talent) sub-tier to include leading fashion designers, who will be assessed by the British Fashion Council with the Arts Council England acting as the designated competent body
- deletion of the Immigration Rules relating to the Tier 1 (General) sub-tier following its closure for ILR applications on 6 April 2018
- various amendments to the Tier 4 (General) sub-tier, including:
- amending the Appendix H list of ‘low-risk’ nationalities/passport holders that benefit from reduced documentary evidence requirements—11 new countries/passport issuing authorities have been added (Bahrain, Cambodia, China, the Dominican Republic, Indonesia, Kuwait, Macau SAR, The Maldives, Mexico, Serbia and Thailand) and one country removed (Oman)
- enabling ‘low-risk’ nationalities/passport holders to take advantage of the reduced documentary requirements where they are applying from the country or territory they are living in rather than just their country of nationality
- relaxing conditions of leave to allow study on a study abroad programme regardless of when this is added to the student’s course
- allowing dependants to accompany a student on a post-graduate course where the course is nine months or more (reduced from 12 months or more)
- stating that where a course is offered under a partnership with an approved research institute, that course must lead to an accredited qualification at master’s or PhD level
- new ILR Rules for Turkish workers and businesspeople and their family members, as well as provisions to enable family members to apply for further leave to remain (FLR) in limited circumstances where the worker or businessperson has been granted ILR
- changes to Part 15 and across the Immigration Rules to make it necessary to obtain an Academic Technology Approval Scheme (ATAS) clearance certificate for study or research of any duration (not just in excess of six months) in the subjects set out in the Immigration Rules, Appendix 6
- changes to the returning residents rules, including changes to better facilitate applications made under the Windrush scheme
- amendments to short-term student provisions, including that all applicants in this category are made subject to the ATAS clearance requirements set out in the Immigration Rules, Part 15
- changes to Appendix FM applications, including that in order to settle under the five-year route, a partner or parent must meet the eligibility requirements in full at every application stage, ie they cannot rely on the exceptions listed in para EX.1
- changes enabling individuals who hold an electronic visa waiver (EVW) to present this in electronic form prior to travel, and to disregard minor punctuation differences between the biographical details in the person’s passport and their EVW
- changes to the Rules for applications made by overstayers (to prevent additional applications being made) and to re-entry bans for such persons
- new rules for ‘Dubs scheme' unaccompanied children to apply for limited and indefinite leave
- new Rules for locally engaged Afghan citizens to apply for limited and indefinite leave, and
- tidying up changes following the implementation on 15 January 2018 of a new immigration bail regime (including the repeal of provisions for temporary admission and temporary release)
Unless otherwise stated, the changes take effect for applications made on or after 6 July 2018. Applications made before this date will be decided in line with the Rules in force as at 5 July 2018.
The following definitions have been added or amended:
- all references to the ‘Higher Education Funding Council’—these have been replaced by the ‘Office for Students’ and in some cases include ‘any other provider registered with the Office for Students’, due to the Office for Students now being the regulator for higher education in England (para 6, Part 3, Part 6A, Appendix A, Appendix V)
- a new definition of ‘state funded school or academy’ has replaced the existing definitions of ‘state funded school’, ‘academy’ and ‘school maintained by a local authority’—these changes have been made to more correctly describe the range of schools and academies existing across the UK, broken down by region, and
- a new definition of ‘independent school’ has replaced the previous definition to more correctly describe these schools
Paras 18 and 18A of the Rules have been re-worded to more closely reflect the position that indefinite leave is a kind of leave that does not lapse provided the holder has not remained outside of the UK for a continuous period of more than two years (see the Immigration (Leave to Enter and Remain) Order 2000, SI 2000/1161, art 13) will be able to ‘resume their residence’. It is still open to an Immigration Officer (IO) to refuse entry where the person received assistance from public funds when they last departed the UK, or where they seek admission for a purpose other than settlement.
It is no longer possible for an IO to admit a person as a returning resident where they fail to be admissible in this capacity only because they have been absent from the UK for more than two consecutive years (para 19). Such persons must now apply for and obtain indefinite leave to enter via entry clearance. This change would appear to be sensible operationally for the Home Office as it reduces the instances in which the Border Force are required to do complex casework for no application fee as well as them having to consider whether to grant immigration bail while considering whether to admit the person as a returning resident. The option of granting temporary admission was previously available, however this was abolished from 15 January 2018. For further information on this, see Practice Note: Immigration bail.
A person may still be given immigration bail where they seek entry as a returning resident who has not been outside the UK for two years or more, pending the production of evidence to confirm their claimed residency or that they have made a no time limit application.
A person applying for entry clearance as a returning resident must now ‘demonstrate he has strong ties to the United Kingdom and intends to make the United Kingdom his permanent home’ (para 19). This wording introduces a more specific (but arguably easier to meet) test for eligibility; previously the decision to admit a person as a returning resident was expressed as a broad discretion, stating only that it may be appropriate to exercise the discretion in favour of a person where they have lived in the UK most of their life. The new test was already being applied in practice before the Rules change to applicants under the Windrush Scheme, and details of how the strength of a person’s ties should be assessed for these applicants are set out in the Windrush scheme casework guidance.
Other changes include that the usual two-year rule for eligibility for readmission as a returning resident will not be applied to a partner or parent of a person on a specified overseas posting (para 19A), and that where the posting relied on relates to a British citizen or settled person who is employed by the British Council, the Department for International Development or the Home Office, the person must be a permanent employee of those organisations (paras 19A(b)(ii), (iii) and (iv)).
The Entry Clearance Guidance, Returning residents: SET 09 has been removed and the MG will be applied to entry clearance cases and to individuals seeking entry at the border.
Calculation of absences in ILR applications—rolling and block absences
The Home Office has attempted to limit the retrospective nature of the changes to absences calculations that it brought into force under HC 309. These have affected applications submitted on or after 11 January 2018, imposing a requirement for absences not to exceed 180 days in any 12 calendar months during the qualifying period for ILR in Part 5 and Part 6A categories (ie Points-Based System (PBS) and pre-PBS economic migration categories). For information on this ‘rolling’ absences requirement, see Practice Note: Statement of Changes in Immigration Rules, HC 309—analysis.
Under the changes made in HC 1154, the continuous period an applicant seeks to rely on for their ILR application will not be considered to be broken where their absences from the UK during periods of leave granted under the Immigration Rules in place before 11 January 2018 do not exceed 180 days in any consecutive 12 month period, ending on the same date of the year as the date of their ILR application (paras 128A(i)(2), 245AAA(i)(2)).
This restores the position as it existed in practice pre-11 January 2018 and will make absences calculation more straightforward for many applicants who will apply for ILR over the next few years.
However, those who seek to rely on a period of leave they were granted following an application submitted on or after 11 January 2018 are required as a consequence of this change to make two calculations of their absences during the ILR qualifying period. This will be relevant for example where an applicant made an application on or after 11 January 2018 due to a change in their circumstances, or for a short period of leave to cover a shortfall prior to becoming eligible to apply for ILR.
A rolling absences calculation will need to be made for any periods in the qualifying period starting from the date the applicant first made an application on or after 11 January 2018. It is important to note that according to the wording of the Immigration Rules, it will be the date of application, not the date leave was granted that is relevant, which may cause headaches where this date cannot be easily verified. A second calculation will need to be made to verify that absences also did not exceed 180 days in any consecutive 12 month period ending with the date of the ILR application.
The Home Office has updated form SET(O) and its online equivalent, as well as the Modernised Guidance (MG), Indefinite leave to remain: calculating continuous period in the UK. However, the wording adopted in both the form and the guidance does not reflect the wording of the Immigration Rules as it considers that absences must be calculated on a rolling basis for any periods of leave granted on or after 11 January 2018. It should state that absences will be calculated on a rolling basis for any periods of leave applied for on or after 11 January 2018. The Home Office has confirmed to PSL®Immigration in correspondence that it will consider amending the wording of the form and the guidance in a future update.
Given the controversy already generated by changes in this area and the discrepancies between the Immigration Rules and the application form/MG, it is very likely that advisers will make representations for further change. It remains a problem that calculating absences on a rolling basis is complex and time-consuming for applicants and their advisers, in practice requiring the assistance of a detailed spreadsheet.
See Practice Note: Schedule of absences for a spreadsheet that can be used to analyse absences on both a rolling and 12 calendar-month block basis.
Calculation of absences in ILR applications—entry clearance and breaks in continuity of leave
Paras 128A(ii) and 245AAA(a)(ii) have been substituted so that continuity of leave for the purposes of ILR in Part 5 and Part 6A categories will not be considered broken during any period where an applicant was outside the UK without existing leave pending their re-entry to the UK, provided one of the following circumstances applies:
- they made an application for entry clearance before 24 November 2016 and that application:
- was made within 28 days of their previous leave expiring, and
- was granted
- they made an application for entry clearance on or after 24 November 2016 and that application:
- was made while they still had current limited leave, and
- was granted
- they made an application for entry clearance on or after 24 November 2016 and:
- the application was made within 14 days of their previous leave expiring, and
- the Home Office considers there was a good reason beyond the control of the applicant of their representative explaining why the application could not have been made while they still had current limited leave—note that the reason must be provided in or with the ILR application
- they made a successful application for entry clearance following the refusal of an application for entry clearance that meets the requirements of the two bullet points above, except that the application was not granted, and:
- the successful application was made within 14 days of the refusal (or the expiry of the period for making an in-time administrative review application, or the date that any administrative review or appeal was concluded, was withdrawn, was abandoned or lapsed)
These amendments have been made so that an applicant is not disadvantaged by choosing to depart the UK and apply for fresh entry clearance rather than making an application for further leave to remain in-country.
Evidence of absences
An additional change has been made for Part 5 applicants applying for ILR. It is now a requirement to provide evidence that the person’s employer, if they had one, agreed to any absence from the UK for the purpose of assisting with a national or international humanitarian or environmental crisis overseas (para 128(i)). This brings the wording for Part 5 applicants in line with the existing wording for Part 6A applicants.
Children of migrants in Part 5 categories
A small change has been made to specify that a child of a Part 5 migrant who applies for further leave to remain in this capacity must not have been granted immigration bail on or after 15 January 2018, in circumstances in which they would have been granted temporary admission or temporary release before this date (para 198(a)(ii)). This change should have been included in HC 309, when most immigration categories were updated to take into account the implementation of the new immigration bail regime, but appears to have been omitted at that time due to an oversight.
Partners and children of Tier 4 (General) migrants
A Tier 4 (General) migrant who is studying a post-graduate qualification of nine months or more may be accompanied by partner and child dependants. The length of course has been reduced from 12 months (paras 319(c)(i)(ii)(1), 319D(b)(iv)(1), 319H(i)(ii)(1), 319I(b)(iii)(1).
This change will be welcomed by the education sector. The 12-month requirement previously caused operational issues, including in some cases requiring the timetables of courses to be restructured so as not to discourage international students from taking them up.
The Immigration Rules for this sub-tier have been deleted following the closure of it for ILR applications on 6 April 2018 (paras 245C to 245CD-SD and Appendix A, paras 7 to 34–SD including tables 2 and 3, deleted).
Evidential requirements—money available for investment
Following on from changes mentioned in our Practice Note: Statement of Changes in Immigration Rules, HC 309—analysis—Tier 1 (Entrepreneur), legal representatives must now provide a letter confirming that genuine signatures are present on the following documents, where required for an application (Appendix A, para 41(a)(vii)):
- letters from venture capital firms
- a term sheet for the investment
- a breakdown of the due diligence conducted by a venture capital firms in support of the investment
- a letter from an accountant validating the financial condition of the fund
- a third-party declaration, and
- a letter from a financial institution in which the investment funds are held
Previously the legal representative was only required to provide a letter confirming the genuineness of signatures present on third-party declarations. The extended requirements are onerous and time-consuming. They create significant additional expense for applicants, as they are likely to necessitate the legal representative physically going to venture capital firms and financial institutions in order to witness the signing of the relevant documents in person (or vice versa). It is also likely that there will be practical difficulties in getting financial institutions to agree to meet with the legal representative in person.
Where an applicant is required in an extension application to provide their business’ audited or unaudited accounts for the purpose of confirming that an investment has been made in the business by a third party other than a relevant seed funding competition or UK/devolved government department, it is now acceptable for the accounts to confirm the investment was made as part of the applicant’s activity (Appendix A, para 45(c)(iii)(1)). This change corrects an omission created by previous changes in HC 309.
Where investment portfolio reports are provided as specified evidence of investment, these must now contain a confirmation that the portfolio is unencumbered and has no loans secured against it, and that none of the investments being relied on are prohibited investments as defined in Appendix A, paras 65(a)–(f) (Ap-pendix A, paras 65–SD).
Qualifying investments—interest and dividends
A clarification has been made to state that where an applicant withdraws interest and/or dividends from a qualifying investment, they will only be entitled to claim points for maintaining the investment if the interest was accrued/the dividend was declared after the date they purchased the qualifying investment (Appendix A, para 65C(c)(i)).
Croatian citizens no longer are counted within the allocated endorsement total available to each Tier 1 (Exceptional Talent) designated competent body (Appendix A, para 5(f)). This is because Croatian citizens and their family members ceased to be subject to UK labour market access restrictions on 1 July 2018.
Appendix L—research fellows and senior academics/researchers
In order to be considered for endorsement by the Royal Society, the Royal Academy of Engineering or the British Academy, research fellowships and senior academic/researcher positions must be included in the accelerated list for research fellowships or the accelerated list of senior academic/researcher positions published by those bodies (Appendix L, paras 1(a), 1(b)).
Research fellows must now provide confirmation of their award from their funding body. The confirmation letter must be dated, show the applicant’s name and state that they have been awarded a fellowship awarded by the relevant designated competent body (Appendix L, para 2(a)). Previously no evidence of the award was required.
Appendix L—arts and culture applicants
Amendments have been made to the track record criterion to be met by arts and culture applicants (Appendix L, para 6(c) and para 7 including table):
- exceptional talent applicants must now show:
- a substantial track record in more than one country (instead of at least two countries)—this is a wording change rather than a substantive change
- that they have won at least one international award for excellence in the last five years—previously the requirement was to have won international awards (plural)
- exceptional promise applicants must now show a developing track record in one or more country (instead of at least two countries):
- that they have won, been nominated or shortlisted for at least one international award for excellence in the last five years—previously the requirement was to have won, been nominated or shortlisted for international awards (plural)
Appendix L—film and television applicants
Film, television, animation, post-production and visual effects industry applicants must now:
- have won, or in the last ten years from the year of application, been nominated for specified awards, or made a significant and direct contribution to such a win or nomination (Appendix L, paras 8(a), 8(b))—previously the relevant time frame was five years
- have within the last 15 years been nominated two or more times for specified awards (Appendix L, para 8(ba))—this is a new provision, or
- demonstrate notable industry recognition by providing evidence of:
- internationals distribution sales and recognition, and
- winning at least two specified notable industry recognition awards, or
- winning at least one, and within the last six (previously five) years before the date of application, being nominated for at least one other specified notable industry recognition award, or
- within the last six (previously five) years before the date of application, being nominated for at least three specified notable industry recognition awards, or
- within the last three years before the date of application, making a significant and direct contribution to winning two, or being nominated for at least three specified notable industry recognition awards—this is a new provision
The list of notable industry awards has been significantly expanded (Appendix L, para 8 table).
A new paragraph has been inserted that outlines the evidence applicants must provide regarding notable industry recognition awards. This represents a reorganisation of the provisions rather than a substantive change (Appendix L, para 8A).
Appendix L—leading designer fashion business operators
A new category of endorsement has been made available for individuals who are, or demonstrate the potential to be, internationally recognised experts in the fashion industry through operating leading designer fashion businesses (including relevant technical businesses) (Appendix L, paras 5(c), 8B–8D, para 9(a)(ii), para 9 table). Fashion industry applicants must be assessed by the British Fashion Council, with the Arts Council England acting as the designated competent body.
Through providing specified evidence, applicants must demonstrate they:
- are professionally engaged in producing work of outstanding quality which has been sold or exhibited internationally through catwalk presentations or exhibitions (for exceptional talent applicants), or that has recognition with leading industry players (for exceptional promise applicants)
- have, within the last five years, regularly been engaged professionally as a practitioner in the field, and
- have a substantial track record in more than one country (for exceptional talent applicants), or a developing track record in one or more countries (for exceptional promise applicants)
Appendix L—digital technology applicants
References to Tech City UK have been replaced with Tech Nation following the re-naming of this organisation (Appendix A, para 4(b)(v) and various references throughout Appendix L).
The wording of qualifying criteria has been updated to make it clearer that employees of digital technology companies must have made significant technical, commercial or entrepreneurial contributions in the digital technology sector (Appendix L, para 10 table).
Additional wording has been added (Appendix L, para 13(b)(iv)) to state that when assessing applicants Tech Nation will take into account additional factors including but not limited to:
- the person’s academic track record and salary level, where the applicant has been an employee
- the company the applicant is being hired by, where the applicant will be employed in the UK
- the amount of money raised, where the applicant is an entrepreneur
Appendix L—other changes
The term ‘world leader’ has been replaced with ‘leader in relevant field’ or similar and the term ‘potential world leader’ has been replaced with ‘potential leader in relevant field’ or similar (various paras across Appendix L).
Evidence of maternity, paternity, shared parental or adoption leave for ILR applications
An amendment has been made to the specified documents required for ILR in the Tier 2 (Intra-Company Transfer) (Tier 2 (ICT)) sub-tier (para 245GF-SD C(b)), requiring an applicant to provide the following documents in relation to any periods of maternity, paternity, shared parental or adoption leave:
- an original full birth certificate or full certificate of adoption, showing the applicant as a parent/adoptive parent of the child they took leave for, or
- if the above documents are not available, specified documents giving a full explanation for the unavailability, which must be from an official source and verifiable—the acceptable documents are official adoption papers issued by the relevant authority, relevant medical documents or a register of birth extract accompanied by an original letter from the issuing authority
The EM states the additional requirements were intended to apply to ‘Tier 2 applying for settlement’ (EM, para 7.17), however no amendment has been made to the requirements for Tier 2 (General), Tier 2 (Minister of Religion) and Tier 2 (Sportsperson) sub-tiers. This appears to be an oversight.
It is no longer possible for a person to make an application for further leave to remain under Tier 2 (ICT) or Tier 2 (General) where they are relying on a Regulated Qualifications Framework (RQF) 4 occupation (Appendix A, para 74B(b) deleted, Appendix A, para 77E(d) deleted). This is due to the closure of a transitional arrangement that allowed applicants holding Tier 2 (ICT) or Tier 2 (General) leave granted under the Rules in place before 13 June 2012 to continue to apply for further leave to remain in these categories despite the minimum skills threshold having been revised to RQF 6 from 13 June 2012. These individuals are still able to apply for ILR.
It is now a requirement that an applicant for entry clearance or further leave to remain in these sub-tiers must not hold more than 10% of the shares in their sponsor indirectly (paras 245HB(i), 245HD(o)). Previously only direct ownership was prohibited. The EM gives an example of owning the shares through another corporate entity (EM, para 7.17).
Removal of medical practitioners and nurses from the Tier 2 (General) cap
With effect for applications decided on or after 6 July 2018, medical practitioners (SOC code 2211) and nurses (SOC code 2231) have been removed from the requirement to obtain a Restricted Certificate of Sponsorship (RCoS) under the Tier 2 (General) cap of 20,700 per year (Appendix A, paras 77D(b)(iv), references to 2231 Nurses deleted in Appendix A, Table 11D; Appendix A, para 81B; Appendix A, para 81H(c)).
This change has occurred following sustained political pressure on the government to take action to ease NHS worker shortages. These were exacerbated by the monthly RCoS quota being reached every month from December 2017. For adviser commentary on this development see ‘Removal of NHS workers from Tier 2 visa cap—no more than ‘a temporary fix’?’ LNB News 15/06/2018 134.
Resident labour market testing requirements must still be met for nurses, and for doctors not listed on the shortage occupation list set out in the Immigration Rules, Appendix K.
With only two SOC codes being removed from the cap under HC 1154, it remains to be seen how long the backlog of RCoS applications will take to clear, and whether further pressure will be exerted on the government to remove other SOC codes from the cap or otherwise reform the RCoS system.
In a letter to the Immigration Law Practitioners’ Association (ILPA) dated 2 July 2018, the Immigration Minister, Caroline Nokes, confirmed that the removal of these SOC codes from the cap is a temporary measure, that the government remains committed to reducing net migration to sustainable levels and to minimising the reliance of UK employers on migrant labour. She also confirmed that the Migration Advisory Committee has been commissioned to review the shortage occupation list and to report to the government on this by spring 2019.
In a separate but related set of changes, previous typographical errors in Appendix A, para 77K and Appendix A, para 81H(c) have been removed, correcting the SOC code for midwives to 2232 (rather than 2231, which is the SOC code for nurses).
Find a Job service
References to the government’s Find a Job service have been incorporated into the Immigration Rules relating to Tier 2 (General) resident labour market testing requirements (Appendix A, para 78(e) and Appendix A, Tables 11B and 11C). This follows the replacement of the Universal Jobmatch service with the Find a Job service from 14 May 2018 (see ‘Government's ‘Find a Job’ service to replace Universal Jobmatch from 14 May 2018’: LNB News 04/05/2018 63).
With effect from 6 July 2018, the monthly allocation for RCoS is no longer reduced by the number of CoS assigned to Croatian nationals (Appendix A, paras 83(b), 83(c) deleted). This is because Croatian nationals are no longer required to apply for work authorisation under Tier 2 (General) from 1 July 2018, when they ceased to be subject to UK labour market access restrictions.
Prohibited changes in employment
An additional exception has been added to the circumstances in which an absence from work without pay for four weeks or more in total in a 1 January to 31 December calendar year will not be considered to constitute a prohibited change in employment. This is where the migrant was assisting with a national or international humanitarian or environmental crisis overseas and the sponsor agreed to the absence(s) (para 323AA(a)(vi)).
The Sponsored Scientific Researcher Initiative has been deleted and replaced by a new scheme, UK Research and Innovation—Science, Research and Academia.
The new scheme enables non-European Economic Area (EEA) academics, researchers, scientists, research engineers and other skilled research technology specialists to come to the UK in a supernumerary for a maximum of 24 months. Allowed activities include giving lectures (provided this does not amount to a formal teaching post), acting as an examiner, undertaking skill development/knowledge transfer, undertaking work-based training/work experience/internship/placement or working on research collaborations.
UK Research and Innovation (UKRI), along with 12 other listed research organisations may sponsor individuals to work and train under this scheme. For further information, see New scheme for overseas researchers to come to the UK (GOV.UK).
Wording has been replaced to make it clearer that migrants in these sub-tiers may not study at an academy or state-funded school, however they may study at a voluntary school with boarding in Northern Ireland (paras 245ZT, 245ZW(c)(vi), 245ZY(c)(vi), 245ZZ, 245ZZB(9)(iv), 245ZZD(c)(iv)).
References to ‘school maintained by a local authority’ have been replaced with ‘state funded school’, in line with the amendments to these terms set out in the Immigration Rules, Introduction, para 6 (paras 245ZW(c)(vi), 245ZY(c)(vi), 245ZZB(c)(vi), 245ZZD(c)(vi)).
Low-risk nationals and passport holders—Appendix H
Appendix H sets out the countries and passport holders who are subject to reduced documentary requirements under Tier 4 sub-tiers. 11 new countries/passport issuing authorities have been added (Bahrain, Cambodia, China, the Dominican Republic, Kuwait, Indonesia, Macau SAR, The Maldives, Mexico, Serbia and Thailand) and one country removed (Oman).
Evidence of previous qualifications
Amendments have been made to the specified documents an applicant may provide as evidence of their previous qualifications. These now enable an applicant to provide a print out of qualifications or transcript results where the awarding body has an online checking service. The print out must show the applicant’s name, the title of the award, the date of the award and the name of the awarding body (Appendix A, para 120–SD(a)(iia) for Tier 4 (General) migrants and Appendix A, para 125–SD for Tier 4 (Child) migrants). The Home Office reserves the right to request the original document and the application will be refused if the request is not complied with (Appendix A, para 120–SD(c) for Tier 4 (General) migrants and Appendix A, para 125–SD(b) for Tier 4 (Child) migrants).
ATAS clearance certificate requirement
An ATAS clearance certificate is now required for a course or research of any duration in the subjects set out in the Immigration Rules, Appendix 6. Previously such a certificate was only required for study or research of more than six months’ duration (paras 245ZV(da)(iii), 245ZX(ea)(iii)).
Study abroad programmes
The conditions of leave for Tier 4 (General) students whose application for entry clearance or leave to remain application was submitted on or after 6 July 2018 have been amended (paras 245ZW(c)(iv)(2A), 245ZY(c)(iv)(2A)). These now allow study on a study abroad programme at a partner institution of the student’s Tier 4 sponsor, even if the study abroad programme is added after the person has been granted their leave. The programme must be an integral and assessed part of the course stated in the student’s Certificate of Acceptance for Studies (CAS).
Courses delivered under a research institute partnership
An addition has been made to state that where a course is delivered under a partnership between a higher education institution and a research institute, the course must be accredited at RQF level 7 or above, or Scottish Credit and Qualifications Framework (SCQF) level 11 or above (Appendix A, para 120(a)viii.) In practice the courses offered under these arrangements are at masters or PhD level.These partnership arrangements were introduced into the Tier 4 sponsor guidance from 11 January 2018 and the Immigration Rules now make direct reference to them. The terms ‘Partnership with a research institute to deliver a course’ and ‘Research institute’ are defined and in the Tier 4 sponsor guidance, Document 1: Applying for a Tier 4 licence.
Conditions of leave that allowed Tier 4 (Child) migrants to be employed as a student union sabbatical officer have been removed as Tier 4 (Child) migrants can currently only be sponsored by independent schools (245ZZB(c)(iv), 245ZZD(c)(iv)).
References to ‘Higher Education Funding Council’ are replaced with ‘Office for Students’ (para A57B(c)(iii)) or ‘Office for Students...or any other provider registered with the Office for Students’ (para A57D(a)).
A short-term student who holds entry clearance granted for a period of over six months and up to 11 months is no longer required to have ‘accompanied’ or ‘unaccompanied’ endorsed on their entry clearance (para A57E).
The ATAS clearance certificate requirements set out in the Immigration Rules, Part 15 now apply to all short-term students granted entry clearance or leave to enter for six months or less. In practice this will be where the short-term student is studying a course overseas that leads to a master’s, doctorate or postgraduate-level qualification in one of the subjects listed in Part 15. Part 15 has also been amended to enable the ATAS clearance certificate requirement to be applied to individuals granted leave for six months or less (paras A57F(a), 417(i)(c)).
With effect for decisions made on or after 6 July 2018, Part 8, paras A277B(a) and A277C have been amended to remove reference to Appendix FM, para EX.1. as a para to be considered in the range of applications falling within the scope of those paras—this change has no substantive effect as para EX.1. is considered within other mentioned Appendix FM paras.
An adopted child aged 18 or over at the time they seek to apply for ILR must now meet the knowledge of language and life requirements set out in the Immigration Rules, Appendix KoLL (para 311(ii)(b). Provision is made for an applicant who is not able to meet this requirement to be granted further leave to remain for 30 months, with no recourse to public funds (para 313).
With effect for applications decided on or after 6 July 2018, clarifications have been inserted into Appendix FM to confirm that applications for initial leave, extension or ILR as a partner or parent under Appendix FM under the five-year route to settlement cannot rely on Appendix FM, para EX.1. (Appendix FM, paras GEN.1.16., E-LTRP.4.1.A(d), E-LTRPT.5.1.A.(d)).
With effect for applications decided on or after 6 July 2018, references to tax credits related to dividend vouchers have been removed (Appendix FM-SE, paras FM-SE1, FM-SE2). This is because tax credits are not currently required to be shown on dividend vouchers.
A new Appendix ECAA has been added to the Immigration Rules. This represents the government’s solution to the question of what to do about Turkish citizens and their family members currently in the UK under the European Association Agreement with Turkey (known as the ECAA or the Ankara Agreement) prior to Brexit. The immigration provisions that will apply to these groups once the UK leaves the EU are not yet known.
The Home Office has published guidance about the new routes and the online application process, see: Apply for settlement if you’re a Turkish Worker or Businessperson (GOV.UK).
It should be noted that in order to obtain ILR under Appendix ECAA, Turkish businesspersons, Turkish workers and their partners must have spent a ‘continuous period’ of five years ‘lawfully in the UK’. These terms are defined in Appendix ECAA, Part ECAA 2 and mirror the definitions for Part 5 and PBS ILR applicants and their partners, except that absences will be calculated on a rolling basis for all relevant applicants under Appendix ECAA. For further information on rolling absences, see Part 5 and PBS categories that lead to settlement above.
A fee is chargeable for these applications. Applications for limited leave made under the ECAA as a businessperson, worker or family member of such a person remain free of charge.
The new provisions establish a settlement route for Turkish businesspersons and their family members who spend a five-year continuous period of lawful residence in the UK (as defined under Appendix ECAA, Part ECAA 2).
A four-year settlement route for Turkish businesspersons and their family members existed until 16 March 2018, however this was withdrawn following the Upper Tribunal’s judgment in R (Aydogdu) v SSHD (Ankara Agreement – family members – settlement) and the Scottish Court of Session case, BA (Turkey) v Advocate General for Scotland. For further information on this and the government’s indication that a route would be re-established under the Immigration Rules, see ‘Update on business applications under the Turkish EC Association Agreement’: LNB News 16/03/2018 74.
The ILR provisions are set out in Appendix ECAA, Part ECAA 4. The main points to note about the new route are that the person must:
- have current leave under the Turkish ECAA businessperson category, with previous leave counting towards the continuous period in any of the following immigration categories:
- Turkish ECAA businessperson
- Tier 1 (Entrepreneur)
- meet the language and life requirements under the Immigration Rules, Appendix KoLL
- have supported any accompanying family members without recourse to public funds they were not entitled to
- not fall for refusal under the general grounds for refusal
- satisfy the decision-maker that they have established, taken over or become the director of one or more genuine businesses in the UK during the time they had leave as an ECAA businessperson, and that any businesses relied on have been genuinely operated by the person, are viable and that the person genuinely intends to continue to operate one or more businesses in the UK—the genuineness tests and ability to refuse where requested information/evidence is not received are similar to those applied to Tier 1 (Entrepreneur) migrants, except that in this category the applicant must demonstrate that any business they rely on during the qualifying period is viable and that their business activity in the UK is credible, and
- have complied with police registration requirements, if applicable (this requirement is set out in Appendix ECAA, Part ECAA 1, para ECAA 1.1 ‘ECAA business person’)
A new route to settlement is implemented for Turkish workers and their defined family members following a five-year continuous period of lawful residence. This change will be welcomed as previously the main way these individuals were able to obtain ILR was through the ten-year long residence route.
The ILR provisions are set out in Appendix ECAA, Part ECAA 3. The main points to note about the new route are that the person must:
- have current leave under the Turkish ECAA worker category, with previous leave counting towards the continuous period in any of the following immigration categories:
- Turkish ECAA worker
- Tier 2 (General), (Minister of Religion) or (Sportsperson) migrant
- work permit holder
- meet the language and life requirements under the Immigration Rules, Appendix KoLL
- have supported any accompanying family members without recourse to public funds they were not entitled to
- not fall for refusal under the general grounds for refusal, and
- have complied with police registration requirements, if applicable (this requirement is set out in Appendix ECAA, Part ECAA 1, para ECAA 1.1 ‘ECAA worker’)
The immigration categories under which time can be counted towards ILR are more narrowly drawn than they are for other work categories, eg Tier 2 (General). It is possible that the Home Office may be lobbied to expand these categories.
Family members of Turkish businesspersons and workers
ILR provisions are introduced for children and partners of Turkish businesspersons and workers who are applying for or who have been granted ILR (see Appendix ECAA, para 1.1. ‘family member’ and Appendix ECAA, Part ECAA 5 for children and Appendix ECAA, Part ECAA 6 and Appendix ECAA para 1.1. ‘family member’ and ‘unmarried partner’ for partners). Children aged under 21 and adult dependants aged over 21 are stated to be considered family members to which Appendix ECAA applies. The latter may be a drafting error in the Immigration Rules, Appendix ECAA, para ECAA 1.1. ‘family member’, with the intended class of persons being adult-dependent children aged 21 or over.
Specific further leave to remain provisions are also introduced for partners of Turkish businesspersons and workers (Appendix ECAA, Part ECAA 7). These allow for further leave to remain to be granted to partners who cease to be covered by the ECAA due to:
- their partner obtaining ILR as a result of an application for ILR as a Turkish businessperson made before 16 March 2018, or
- their partner obtaining ILR as a result of an application for ILR as a Turkish businessperson made under Appendix ECAA
Electronic Visa Waiver (EVW) scheme
Amendments have been made to enable EWV holders to present this in electronic form prior to travel (Appendix V, Appendix 2, para 7AEVW). In all cases the EVW must be presented in a clear, legible format, in English and either electronically or in printed format (Appendix V, Appendix 2, para 11). Printed EVWs must be surrendered to an immigration officer if requested (Appendix V, Appendix 2, para 15).
Provision has also been made to disregard minor punctuation differences between the biographical details in the person’s passport and their EVW, specifically apostrophes, spaces and hyphens (Appendix V, Appendix 2, para 8A).
The wording of para 39E has been amended so that it is no longer possible to make a further application within the scope of para 39E(2) the person’s last application was made as an overstayer within the scope of para 39E(1). The EM states the change brings the provision in line with the Home Office’s policy intention (EM para 7.2).
A clarification has been added to the periods of time to be disregarded when calculating a period of overstay for the purpose of assessing whether a re-entry ban applies. This states that overstaying will be disregarded for the period until an application made on or after 24 November 2016, in accordance with para 39E, is determined (para 320(7BB)(b). This change corrects a previously unintended omission.
Where a migrant’s leave is subject to an ATAS clearance certificate condition, this must now be complied with irrespective of the length of the relevant course or period of research (para 417(i)(c)). Previously only courses or research periods of more than six months were relevant for the purpose of meeting the ATAS clearance certificate condition.
Changes have been made to remove references to Learndirect limited as the sole provider of the Life in the UK test, allowing for this test to be administered by any other educational institution or person approved by the Home Office to do so (Appendix KoLL, paras 2.3, 3.3, 4.15(a)).
HC 1154 also includes the following changes:
- expansion of the Immigration Rules for individuals who were formerly locally engaged staff in Afghanistan, to include limited leave and settlement routes for certain individuals and their immediate family members (paras 276BB1(iv)–(v), 276BS2–276BS4), see EM paras 7.38–7.41 for further details, and
- new Immigration Rules to grant residence permits, travel documents and indefinite leave to remain to unaccompanied children who have been relocated to the UK in accordance with the Immigration Act 2016, s 67 (known as the Dubs scheme), as well as their dependent children; the new Rules also incorporate curtailment and revocation provisions (paras 352ZG–352ZS)
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