Dr Bernard Andonian Explains the latest changes to UK Immigration Rules

One of our top immigration lawyers London, Dr Bernard Andonian explains in his latest article the latest changes that have come in to effect in the UK’s immigration legal system from September 2019.

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Tier 4 students

The Prime Minister announced a new strategy as part of his intention to do whatever is necessary to boost the UK economy, in that, after graduation, international students be they under or postgraduates or PhD achievers, can stay in the UK for a further two years to seek work experience from 2020.

Narrow-minded critics have already announced their concerns, on the basis that this move will bring the former Tier 1 post-study work visa back from the grave and “through the back door.”

The previous Tier 1 post-study work visa was abolished in 2012 when Mrs Teresa May, the former Prime Minister, was Home Secretary, as she thought it led to abuse of the visa process.

There are various views on this recent move by the Government. Some say it is an unwise decision because it will lead as did the post-study visa to former students lingering on in menial jobs to clock up additional years before they apply for residency in the UK. It is said that graduates who are unable to obtain work in their field of studies, will simply revert to doing any job in order to add lawful years to their current stay in the UK, so that after 10 years of lawful continuous stay they can apply for indefinite leave to remain or permanent residence in accordance with the immigration rules, and stay.

Alternatively, if students have at some stage during the course of their immigration history remained in the UK as overstayers, they may clock up a few more years thereby completing 20 years physical residence here, to enable them to apply for limited leave to remain after at least 20 years physical residence. This will lead to permanent residence albeit after successive grants of limited leave for a 10-year period under the ‘10-year route’.

Those against the government’s reform fail to appreciate that there are at present 460,000 foreign university students in the UK, generating £20 billion per year for the British economy, and are attracted to the UK not only by the fact that British qualifications are renowned worldwide, but also by the benefits they may derive by investing several years in hard-earned family fees and other expenses in the UK.

Of course, there will always be some who will abuse the visa process, but compared to those who will go on after graduation to obtain employment in their field of studies without the necessity of having to apply for a Tier 2 work visa, itself not an easy task under the current work permit scheme, I think the advantages must outweigh the disadvantages. There must be an advantage to the UK economy by having international students from outside the EU working in the UK most of them in their chosen field of study, and this must be a tremendous boost to the UK economy.

Universities and their courses in the UK are mainly funded and exist as a result of foreign investment. It is only right therefore that international students who are either undergraduates, postgraduates or PhD educated should be able to stay in the UK for two years.

Whilst under European Union law, tuition fees for British and EU students are capped at present at £9250 per annum, for those outside the EU, universities can charge what they desire according to their needs, and therefore recruiting international students from outside the EU must be an important source of revenue stream for universities with many investing huge sums in marketing themselves overseas such as in the Gulf states as well as paying agents to drum up business in targeting countries. This must all be very good for the British economy.

University provosts and governors have welcomed the move. It is not difficult to understand why. If there are few post-study work opportunities other than having to apply for a Tier 2 Work Visa which has enormous difficulties both for employer and employee, then this will put British universities at a competitive disadvantage in attracting international students. Such a move by the government should put British universities back to where they belong, namely as a first-choice study destination.

Statement of changes in immigration rules 9 September 2019

The EU Settlement Scheme is contained in appendix EU to the immigration rules and provides the basis for various groups to apply for UK immigration status, which they will require under the scheme in order to remain here permanently after the U.K.’s withdrawal from the European Union, now fixed for 31 October 2019.

In particular, the scheme provides the basis for resident EEA and Swiss citizens and their family members to apply for UK immigration status under the scheme.

The Scheme is consistent with the draft withdrawal agreement with the European Union published on 14 November 2018 as regards EU citizens residing here before the end of the implementation period on 31 December 2020 and their family members. It is also consistent with the citizens’ rights agreements reached with the other EU countries, and Iceland, Liechtenstein and Norway and Switzerland.

The EU settlement scheme will also be the basis on which EU and Swiss citizens resident in the UK by exit date and their family members will be able to obtain UK immigration status in order to remain here in the event of the UK leaving the EU on 31 October 2019 without a deal.

Online applications and administrative review following an online refusal

The statement of changes in immigration rules 9 September 2019, mandates the online route for making an application for administrative review where the online application has led to a refusal. For example, instead of having to make a paper application for administrative review following an online refusal, such as for example a refusal of British citizenship, steps will now be taken to ensure that the administrative review which is an internal review by the Home Office can also be made online to be synchronised with the general online process for all most applications for leave to enter and remain in the UK.

There are certain EEA applications such as for example those relating to extended family members of EEA nationals, say a Russian national in a relationship with a German national living in the UK, for which there are no online forms at present and paper applications will need to be completed.  This does not appear to have been covered under the statement of changes.

Administrative review for loss of settled / pre- status by EU nationals or their dependents

A further scenario subject to administrative review may be where for example status granted under the EU settlement scheme is cancelled at the border because the person, a non-EU national, say married  to an EU national no longer meets the requirements for that status, e.g. in this scenario where such a non-EU national has previously been granted pre- status under the settlement scheme but has ceased to be the family member of an EEA national as a result of a divorce for example and such cancellation could only occur where the person no longer met any of the basis for eligibility for status under the EU settlement scheme.

Whilst the EU settlement scheme is an online process, any administrative review would not be and the new statement of changes endeavours to remedy that situation.

The Dublin arrangement which determines which EU state is responsible for considering an asylum application

The Dublin arrangements are in summary arrangements whereby if an asylum seeker  has originally claimed asylum in France and has been fingerprinted and recorded in that country, then decides to come to Britain to claim asylum here, the usual course for the UK government or another EU state where the asylum seeker has originally claimed asylum, is to contact the authorities of the original EU state, for example France in this scenario, where the asylum seeker had originally claimed asylum to obtain confirmation that for example, France will take responsibility over the asylum application, and if so the asylum seeker will be returned to that country.

After Britain leaves the EU, references to the Dublin arrangements will be replaced in the event of a no-deal exit so that they will no longer apply to the UK. This, in fact, means that if the asylum seeker having claimed asylum in another EU country come to the UK, and the UK will be responsible for the claim and would not have been a position to send that individual back to the original EU country where asylum had previously been claimed.

Amendments to section 67 leave– relocation in support of unaccompanied refugee children

In June 2018 the Home Office introduced ‘section 67 leave.’ This makes sure that children who are transferred to the UK under section 67 of the Immigration Act 2016 and who do not qualify for refugee status or international protection, are able to remain in the UK and build a life here. This form of leave allows them to study, work, access public funds and healthcare and is a route to settlement.

Section 67 children are unaccompanied refugee children from other countries in Europe for some reason find themselves in the UK.

Currently, the immigration rules only allow section 67 leave to be granted to those who have already had an application for refugee status or humanitarian protection refused. As well as the effect on the child of having to go through such a process, the Home Office thinks that the impact on local authorities of supporting the child during that process is a disincentive to them accepting children who arrived here under section 67.

The new immigration statement of changes removes the requirement for the child to complete that first step permitting the grant of section 67 leave automatically upon the child’s arrival. Importantly this change does not remove the entitlement of the child to apply for or to continue with an application for refugee status or humanitarian protection should they wish to do so.

Minor amendments relating to start-up and innovator categories

The start-up and innovator categories were introduced in March 2019. They are for people seeking to establish an innovative, viable and scalable business in the UK, and those whose business ideas are supported by an authorised endorsing body. Following changes are being made to this category; a change is being made to the Tier 4 general rule to allow students who have submitted a start-up application supported by an endorsing body, to commence their business activity whilst an application is being considered.

Changes are being made to bring appendix W which contains the rules for start-up and innovators into line with changes to the definition of higher education providers in the rules for Tier 4.

Amendments are being made to clarify the requirements that an organisation must meet to become an endorsing body. It must have support from a government body, and a correction is being made to confirm that a checkpoint between an applicant and then endorsing body is not required after 24 months in the start-up category but only in the innovative category.

Tier 1 entrepreneur category is now closed

The Tier 1 entrepreneur category is now closed to initial applications but remains open for existing Tier 1 graduate entrepreneur and Tier 1 entrepreneur migrants who have had permission to stay in this category before the closure. Extension applications for these categories are still valid.

Tier 1 investor

Minor drafting corrections are being made to the rules for this category.

With respect to the Tier 1 investor category, this is for high net individuals make an investment of at least £2 million. The changes from March 2019 also increase the period for which applicants must provide evidence of their available funds from 90 days to 2 years. They must have had their funds therefore for a far longer period of time, and it seems to be the purpose for this is to get over the possible money laundering concerns of the Home Office.

Tier 2 work visa

There are minor amendments to this category and an exemption to the English language test requirements. An amendment is being made in appendix B to the immigration rules and Tier 2 general requirements to exempt doctors, dentists and nurses and midwives when making a Tier 2 general application from having to sit and pass an approved English language test, if they have already passed an English language test accepted to the relevant professional regulatory body. The corresponding limit is also being made to provide that Tier 2 doctors dentists and nurses and midwives who have passed such a test are treated as having demonstrated sufficient knowledge of the English language for the purpose of settlement.

List of approved English language providers

An amendment is also being made so that the list of approved English language test providers will no longer appear in Appendix O to the immigration rules and will instead be published on the government UK website.

Knowledge of life in the UK test – K OL L

Further amendments are being made to appendix KOLL so that applicants are no longer required to provide the original documents as proof of passing the life in the UK test but need instead only to provide the unique reference number for checking.

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whether some specific criteria are met. Read our article on this here.