Changes to Immigration Rules
In preparation for the UK leaving the EU single market at the end of the transitional period in the Withdrawal agreement on 31 December 2020, whether with a deal or not, a raft of changes to immigration rules are to come into force mostly on 1 December 2020 by the new statement of changes to the Immigration Rules, HC 813. These also relate to appendix EU in regard to cancellation, curtailment and revocation of leave to enter or remain. Some of the provisions such as the rules governing students came into force on 5 October, but there are also a number of changes such as other provisions in Appendix EU, ECAA and FM, together with provisions for Irish nationals, that will come into force on 31 December 2020.
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Changes as to Britain’s relationship with Hong Kong will take effect on 31 January 2021
Development following tensions in Hong Kong, where China enforced new security laws has threatening the freedoms of millions of Hong Kong citizens has led the UK to offer three million residents in Hong Kong (a former UK colony) a route to British citizenship under the BNO Route.
More Important UK Immigration Changes
These changes are a major overhaul of our immigration rules as they define our relationship with the 25 member states of the EU in mind, which will mirror the relationship Britain has with non- EU countries, and also for the first time seek to make regulations for the removal of EU rough sleepers if they refuse to seek help and improve their lot.
Rules regarding changes in a particular category are dealt with in their own appendix and not in the body of the rules themselves, so there is no longer any complex cross-referencing. The previous worker rules contained in appendix W has been abolished, and in its place, there are separate rules in the appropriate appendices, so appendix W is replaced by Appendix Global Talent; Appendix Innovator and Appendix Start-Up. The law relating to them has not experienced huge changes but is contained in an appendix format, which is easier to read. The same can said for Tier 2 Minister of religion, Tier 2 sportsperson, UK ancestry and tier 5 temporary worker, all written in appendix format. There are separate appendices for finance and English language and for the Academic, technology and approval scheme.
The rules do emphasis on the need for a valid application to be made, as an invalid application is not the same as a refusal. Whereas a refusal would not affect section 3c leave, as a further application could be made within a 14 day period for in-country applications, or an appeal may be lodged after a refusal, which will allow section 3c leave to remain effective pending the finalisation of the appeal process or the result of an administrative review, the same cannot be said if the application is considered as invalid from the start, as it means in reality that no application has actually been made.
Section 3c of the Immigration Act 1971 allows an applicant to continue working as before, and remain in the same immigration position as they were prior to the expiry of their visa pending a decision from the Home Office or the Immigration and asylum tribunal or higher courts.
It is therefore essential to make sure the application is made on a specified form and to pay the required fee, as it is to make sure that the written approval from the relevant government or the scholarship agency is obtained. A certificate of sponsorship needs always to have been obtained by the employer to employ skilled workers.
Rough sleeping – False representation — Discretionary removal
Those who are sleeping rough in the streets of Britain could be removed. This also applies to EU nationals. This is a cruel move. Many of those who are sleeping rough do so because they have been refused leave to remain, are here illegally and are afraid of being removed because of the Home Office hostile environment policy, or cannot obtain appropriate accommodation because they have no immigration status and landlords will not let unless satisfied they have lawful leave to remain. If EU citizens refuse support, like the provision of accommodation and benefits from the authorities, they can be removed as indeed non-EU nationals are at present. The chances of removal are greater for those who commit crimes or display anti-social behaviour.
Previous false representations are now discretionary refusal grounds rather than mandatory grounds for refusal unless the decision-maker can prove that it is more likely than not that the applicant used deception.
Mandatory grounds of refusal
Those who have been convicted and sentenced to 12 months or more imprisonment either in the UK or abroad will be refused leave to enter for a ten year period, and those who are persistent offenders and or have caused serious harm will be refused leave to enter.
Those who have had prison sentences of less than 12 months in the UK or abroad will be refused for 12 months if applying to come here as visitors or for a reason for more than six months visit.
English language requirement
The appropriate English language test for leave to enter or remain for those identified as from non-English speaking countries will only have to be taken once. At present, those who need to take the test for leave to remain based, for example on marriage grounds, will need to take it twice, as the test has a validity of 2 years. It should be noted that Malta is now regarded as an English speaking country, so those who apply to enter the UK from there or extend their stay from the UK do not need to take the English language test.
Under the new rules, it will only be necessary to take the test once. Also, those who have a degree from Ireland will be regarded as providing sufficient proof of knowledge of the English language.
Those who apply to study in the Uk and those skilled workers or those who wish to switch to remain as start-up business persons or innovators, if they have an A level pass in English language or literature or a Scottish Higher in these subjects which they obtained when here as minors, will be deemed to have passed the English language test.
The minimum income rule for spouses and maintenance requirements
The rule for spouse applications remains at £18600 gross per annum which is in accordance with MM ( Lebanon), where the Supreme Court upheld in principle the minimum income of at least £18600 ( or higher where dependent children are involved), for British Citizens or settled persons to sponsor a foreign spouse, although it went on to say that there may be certain exceptional circumstances where a lesser sum or the same threshold may be shown to be available by third parties for the foreign spouse, for example in special circumstances, held by a parent or other family member, and made available to the parties concerned.
Migrants here as students, skilled workers, intracompany transferees, Tier 2 Minister of religion, sportsperson, Tier 5 temporary worker, start-up or innovator, will not have to continue to show they maintain the same income threshold if they have been in the UK for more than 12 months.
Electronic bank statements are permissible, and it is not necessary to have the bank statements stamped on each page.
The continuity of residence, which for most visas is broken by absences of more than 180 days in any one year does not apply where the absences from the UK was as a result of the pandemic.
The previous concession that those who could not leave the UK because of the pandemic would not be regarded as overstayers now forms part of the immigration rules at paragraph 39E. So periods of overstaying between 24 January 2020 and 31 August 2020 will be disregarded.
Visitors can study for up to 6 months, and a visit visa application can be applied for from abroad in that respect. There is still a short term study route, however, for those wishing to study between 6 – 11 months.
Parents of child students
Such parents will be given leave to enter/remain until the child’s 12th birthday. This is a positive change, as, under the current rules, parents would need to reapply every 12 months.
As stated in a previous article, the Tier 2 general has been replaced by the skilled worker category, and the general salary threshold has been lowered substantially from £30,000 to £25,600. The tier 2 cap is lifted. It will no longer be necessary to carry out a labour market test. Furthermore, the current cooling-off period of 12 months for inter-company transfers is removed. There will still be a limit of 5 years under this route or nine years for high earners. These will be those earning a salary of £73,900 instead of £120,000. Such high earners also do not need to show they have been working for the company for at least 12 months prior to the transfer.
EU, Swiss and Turkish nationals
From 1 January 2021, all the above entering the UK will fall under the normal immigration rules except for extension applications for those Turkish nationals under Turkish Association agreement.
What if no application is made under the EU settlement scheme by 30 June 2021 for EU nationals?
There has to be reasonable grounds why the deadline was missed. What is reasonable is a subjective test. We hope to receive some guidance from the Home Office on this.
Those who served as interpreters for the British forces for a minimum of 12 months can apply to settle in the UK with their families, but they have from 1 December 2020 to 30 November 2022 to apply.
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