Round-up of changes to UK Immigration Rules - families, settlement and workers
The coalition government has been busy in recent weeks, introducing changes to published Rules and Guidance which have potentially wide-reaching implications for applicants both in the UK and abroad. Here we attempt to summarise the changes; full details can be found at the UK Border Agency's own site, http://www.bia.homeoffice.gov.uk.
Perhaps of most significance across the immigration spectrum is the requirement, for those applying for indefinite leave to remain in the UK (ILR, or settlement) to be free from unspent criminal convictions. UKBA application forms have for years asked about convictions, but having them has not been an automatic bar to obtaining ILR until now; they were simply a factor for the Home Office to take into account. Published guidance on the impact of criminal convictions indicates that there is an element of discretion – just as with applicants for naturalisation as British citizens – where the conviction resulted in a small fine. If there weren’t any discretion, somebody who for example was convicted of speeding and got a £60 fine could be banned from applying for settlement for 5 years – the period under the Rehabilitation of Offenders Act 1974 after which such a relatively minor conviction would be “spent”.
For some types of applicant – principally those in Points Based System (PBS) categories – note the changes to how you can show English language proficiency when you come to apply for ILR. From 6 April 2011 you can no longer rely on showing progression from one level of an ESOL course to the next. You must pass the Life in the UK test. This change has not been introduced for other applicants, such as spouses, who continue to be able to rely on ESOL progression.
Rules in force from 6 April 2011 (HC863) make major changes to PBS for workers and business applicants. The Tier 1 (General) category is no longer with us, after a short and fairly agonising death. First the route was closed (in December 2010) to applicants from abroad. Then from 6 April this year, it was closed all together. The rules retain some relevance for those already here with Tier 1 (General) leave to enter or remain.
True to its stated commitment to “attracting the brightest and best” the government has offered a much smaller replacement scheme – the Tier 1 (Exceptional Talent) route. Subject to a maximum of 1000 visas per year, the successful applicant will be “Internationally recognised as a world leader or potential world-leading talent in the fields of science or the arts”, something that must be confirmed by a Designated Comptent Body – most likely Royal societies or professional bodies governing particular fields of endeavour. Doctors and dentists are, as with other PBS categories, excluded.
The interim cap on Tier 2 migrants, introduced by the coalition in 2010, becomes a permanent cap from 6 April 2011. A monthly limit of 1500 visas for what are termed “restricted” jobs kicks in, and applicants will be selected by an immigration Star Chamber that meets every month. Broadly, much of the pretence of usefulness to the economy is jettisoned in favour of a straight “who is going to be paid the most” test, introducing even more London and the South East bias than existed before. New workers earning £150K+ are, inevitably, unaffected by the cap all together.
Some of the most convoluted drafting I have ever seen appears in new sections of the Immigration Rules concerning calculation of periods of leave to be granted. Take paragraph 245HE, for example, which sets out what period a successful Tier 2 (General) applicant will receive. It reads more like a mathematical formula than a piece of subordinate legislation, and is a prime example of what happens when this type of law is drafted “in-house” by Home Office staff, rather than by the Parliamentary draftspersons who ought to be writing them.
Other PBS changes are eye-catching but their impact is likely to be slight – for example, the accelerated ILR route for entrepreneurs and investors who bring in even more money, or create even more jobs, than the existing Rules require. If you are preparing a PBS application, make sure you look at the up-to-date points tables in the Appendices to the Rules – the devil, as always, is in this particular detail.
One welcome change from 6 April 2011 is a Rule to implement the Upper Tribunal’s decision in FH Iran [2010] UKUT, concerning spouses, civil and unmarried (with 2 years’ history) partners of sponsors with refugee or other protective status in the UK. Children of so-called “post-flight” relationships also benefit. Paragraphs 317L-U of the Immigration Rules now provide for their entry, on similar terms to the spouses of settled sponsors, which means post-flight spouses and children do not need to rely on Article 8 of the European Convention on Human Rights to join their partners. Holding a relevant English language test certificate is mandatory, as it is for all other spouses and partners seeking to enter the UK, except where there is no local testing centre in the country of residence. Leave to enter will be granted for the magical figure of 63 months (5 years plus 3 months to get to the UK) – so a spouse can expect to remain on limited leave for longer than their UK sponsor, which does seem a little unfair. The provision is designed to guard against spouses arriving the week before their sponsor’s leave expires, but will prejudice other applicants, for example through imposition of higher fees. Note that your sponsor will be making a free application for ILR at the end of their 5 years protective status; you will be required to pay the Home Office fee for your application, I assume.
In further pursuit of its quest to over-complicate and obfuscate, the Home Office has made changes to the General Grounds of Refusal set out at paragraph 320 of the Rules. Not widely trailed, these appear to turn the screw yet further on individuals who leave the UK voluntarily before seeking to return. You will now face a 2 year ban on re-entry if you paid for your own ticket home, but you left the UK more than 6 months after getting notice of your liability to removal, or of exhausting your appeal rights following a negative decision.