Immigration article by Gulbenkian Andonian solicitors in response to the Home Office statement of changes to the immigration rules HC1919 dated 7 March 2019, and its far-reaching implications.
Intention to simplify the immigration rules and to abolish the points-based system/
Since the first set of statement of changes in immigration rules HC 395 were published in 1994, when there were 40 pages of regulations, these have now escalated to over 1100 pages, resulting in approximately 6000 changes in the rules, with verbose and convoluted language not user-friendly to the applicant applying for status in the UK, or indeed to their legal advisers.
The points-based system with its incomprehensible sections and abbreviations with respect to applications for entry clearance, leave to remain, exception leave to remain, and the rules for family and private life under appendix FM, none of which can be found under one section, but have to be w hunted down in reading lengthy paragraphs, and by cross-reference to other parts of the rules, have presented untold difficulties when applications have been made, resulting in refusals because of a misunderstanding of what the rules actually mean, and have been criticised by the higher courts on numerous occasions has been a minefield of incomprehensible information, as have the complicated forms which have to be completed for applications to be made under these rules.
Whilst the Law Commission is now considering simplifying the immigration rules to the standard required so that they are user-friendly to the applicant applying in person, to their legal advisers, particularly since legal fees are beyond the affordability budget of many applicants, therefore, do not see lawyers to assist them but with the applications themselves. This is noted on many occasions both with respect to in-country applications and as for entry clearance. The most recent statement of changes in immigration rules released by Parliament on 7 March 2019 containing 294 pages, make a wide-ranging set of changes to the existing system of migration, whilst also bringing further changes to the EU settlement scheme.
A key change to the EU settlement scheme is at a Zambrano carer in effect primary carers of family members in the UK who are British citizens but who themselves are foreign non-EU nationals, and who will be able to apply for settled status under the EU settlement scheme. They are persons with a derivative right to reside.
As well as Zambrano carers, those who come under the category of Chen carers, i.e. those who are primary carers of a self-sufficient EEA citizen child, and Ibrahim and Teixeira cases ( a trial of the former EEA citizen worker who is in education in the UK and the primary carer) are covered under the EU settlement scheme
The above Zambrano applications will have to be made on a paper application form as they are not available online. Therefore, all applications are now online and must be made digital, and this paper application is approved on an individual case by case basis in light of exceptional circumstances of a particular case. These exceptional circumstances are still undefined but no doubt the Home Office will give some definition to them in due course and there will be cases in the tribunal or higher courts which will expand upon the definition of what is and what is not exceptional in that regard. It should have a be said that there may be a number of applicants who are not able to use any IT system for whatever reason, and the fear is that they may simply not make an application thereby becoming overstayers as a result.
The date by which EEA nationals must have made an application for settled status and show that there have been continuously resident in the UK and certain family relationships will need to have been formed will be 31 December 2020, if the UK finally leaves were deal. It is at present uncertain as to the date by which they should have been continuously resident in the UK and to have settled or pre-settled status to establish themselves here if the UK leaves without a deal. That was to be 29 March 2019 but it never came about as a result of the cascade of confusion in Parliament.
Those living in the Isle of Man or the Channel Islands can obtain settled status as well.
In an earlier article Gulbenkian Andonian solicitors have dealt with the EU settlement scheme and the application process, which incidentally now has been further modified to assist applicants not in possession of android phones, to enable them to make online applications for settled or pre-settled status under the EU settlement scheme. Those who already have indefinite leave to remain or are Irish nationals do not need to apply for settled status.
The statement of changes is perhaps more most striking in their intention to end the points-based system which has been a box ticking exercise, with no discretion and has led to refusals without the right of appeal other than administrative review and judicial review.
Abolishing the points-based system
The statement of changes in updating the Tier 1 graduate entrepreneur and expanding it to form the new start-up category together with the new form of innovator category, clearly shows the commitment expressed to end the points-based system which coincides with the Law commission’s intention to simplify the immigration rules
The new categories of start-up and innovator are set out in a new Appendix W to the immigration rules and do not form part of the points-based system and do not include points scoring tables. Appendix W refers to workers, and it is hoped that whilst at present it relates to these two new categories of worker, the appendix will eventually set out work-related visas under one appendix which will be of far more sensible approach than at present, whereby for example to find out details about Tier 2 general reasons one has to search high and low within the rules.
Gulbenkian Andonian solicitors also note that whilst the Tier 1 entrepreneur route will remain open for those reapplying until 5 April 2023 these being the transitional period provisions, it has closed to new applicants as from 29 March 2019. Settlement applications will remain open until 5 April 2025. Successful Tier 1 entrepreneur migrant is applying for an extension from abroad will be granted two years and four months leave to enter as opposed to the current two years.
Changes to business immigration -start-up category
This new start-up category is in many ways a revamp of the Tier 1 (graduate) entrepreneur system for those looking to establish a business in this country for the first time. There needs to be a business idea in the form of the business plan that is innovative i.e. new, one that will be profitable in the foreseeable future and one that is viable. The idea must be supported by an endorsing body and this category does not lead to indefinite leave to remain to have a life of two years. Any previous leave granted under Tier 1 (graduate) entrepreneur route will be included in that two-year time limit. Such applicants may, however, wish to switch to innovator category which does lead to indefinite leave to remain.
Although under this category the individual is not limited to work for their business only, the endorsement body letter must confirm that the endorsing body is reasonably satisfied that the applicant will spend the majority of their working time in the UK on developing business ventures. Because, a start-up business is for more inexperienced individuals does not lead to settlement but the person in this category can graduate to innovator which does lead to settlement.
This category is for business persons who have more experience; it is not a start-up in the sense that the business person already has business acumen and experience, maybe abroad or has already set up a business in this country. The whole idea is to increase skilled migration to the UK particularly after Brexit so that only those who can make a substantial contribution to the British economy should be granted leave to enter or leave to remain if switching to either this category or a start-up from a previous category. The Tier 1 Entrepreneur category was not one either under the £50,000 scheme or the £200,000 scheme that was commensurate by those who had new, fresh innovative skills. That is to say, they could enter into businesses already in existence such as the purchase of the supermarket, a car showroom, a restaurant, an accountancy business, of which there are already so many in the UK, none of which were new ventures entered into with inventive ideas.
So, one can see from the above that the definition of innovator sets in juxtaposition to the definition of start-up category which although should have innovative ideas is for less experienced persons wishing to establish themselves in business for the first time. An innovator like a start-up migrant must have a business idea that is new, and one that will become profitable and is viable and must be supported by an endorsing body. For this particular category, the applicant will need a minimum £50,000 to invest in the business from any legitimate source. If they were previously a start-up business and wish to upgrade themselves to innovators, it may be that the funding requirement at the discretion of the Home Office could be waived. The sum required for investment has been reduced from £200,000 which was the case for most applications under the Tier 1 entrepreneur category. The funding requirement will be waived for those switching from the start-up category into the innovator if they can show that they have made significant achievements against their business plans.
Insofar as both categories are concerned, work cannot be undertaken as a doctor or dentist in training or as a professional sportsperson, including coaches. Innovators must also only undertake employment for their own business and not work for someone else. They must work for themselves and cannot hire workers out pursuant to a contract of service or apprenticeship.
There must be no recourse to public funds, the applicant must register with the police if required by part 10 of the immigration rules and they may study subject to conditions in part 15 of the rules. Leave can be curtailed like in other immigration categories and additionally for example if an endorsing body either withdraws their endorsement or loses their status as an endorsing body.
This category which required an investor to invest minimum £2 million in the UK in authorised securities such as government bonds and share capital in UK registered companies, was subject to abuse, in particular, money-laundering abuse. As a result, the new statement of changes makes it a requirement for investors to provide evidence of the source of any investment funds they have obtained within the last two years which is an increase from the last 90 days. The investor must have held the funds for a consecutive period of two years, and in the UK banks have a requirement to confirm that they have carried out checks that they are required to make before opening an investment account for them.
Applicants will no longer be allowed to invest in UK government bonds unless their initial grant of leave was under Tier 1 investor migrant Visa rules in place before 29 March 2019 and the date of application for extension is before 6 April 2023.
There is, therefore, a time limit during which investors can still invest in UK government bonds. This is soon to be scrapped.
The rules around investment in companies have become stricter with longer definitions of what is meant by” active and trading UK registered companies “in which the investment must be made. These can be found under the new paragraph 65 a of the rules. The definition of active and trading companies should not be those companies that are (i) registered with Companies House in the UK;(ii) are registered with HM Revenue and Customs for corporation tax and PAYE; (iii) have accounts and the UK business bank account but showing regular trading of its own goods and services;( iv) have at least two UK-based employees who are not its directors.
Transitional arrangements for current investor Visa holders will be in place until 5 April 2023 for extension applications on 5 April 2025 for settlement applications. Successful Tier 1 investor migrants applying for an extension from abroad will be granted two years and four months leave
An entry clearance officer must not have reasonable grounds to believe that the applicant was not in control of and at liberty to freely invest the money specified in the application for the purposes of meeting the requirement of the Tier 1 investor Visa category.
Similarly, there must not be reasonable grounds to believe that any of the money has been or will be transferred internationally by means which are unlawful in any of the countries involved, additional to the current rules that it must not have been acquired by means of conduct unlawful in the UK.
Anybody who held a Tier 1 investor migrant Visa in the 12 months before the application will be granted two years rather than three years four months entry clearance.
Leave to remain as a stateless person is extended from 30 months to 5 years after which an application can be made for indefinite leave to remain. However, the new rules will require that an individual to have taken reasonable steps to facilitate admission to their country of former habitual residence or any other country but has been unable to secure the right of admission.
The new rules on statelessness also required that the applicant has sought and failed to obtain re-establishment of the nationality with the appropriate authorities of the relevant country; and if in the case of a child born in the UK, has provided evidence that they have attempted to register their birth with the relevant authorities but this has been refused.
Time will, of course, tell what impact these new changes will have on status categories. We do not believe that the procedure is unnecessarily complicated, because if a person alleges to be stateless then the burden is on that individual to show this to be the case on quite a fairly high standard, namely the civil balance of probabilities
Those applying under the Tier 2 general work permit scheme, and specialist in certain categories that are needed in the UK due to their expertise such as nurses, medical radiographers, paramedics, and secondary school teachers in mathematics, physics, chemistry, computer science and Mandarin, are exempted from the increase in the minimum salary necessary to get a Tier 2 work Visa. This is a good thing as it encourages such specialists to come to the UK even though they are offered lower salaries.
The codes of practice and appendix J of the immigration rules have been amended to show an increase in the minimum salary sponsors will have to pay for other applicants depending on the sector that they fall in under this appendix.
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