A follow-up re: Immigration Rules changes >>> New, improved English language requirements for immigration applications
The new ‘Appendix English Language’ will take effect at 9am on 1 December 2020; any application made before this highly specific date will be treated under the old rules. Unlike the current (old) Appendix English Language, which only applied to the Appendix Student route, the new Appendix will apply to all applications made under the following routes:
-Appendix Skilled Worker
-Appendix Representatives of an Overseas Business
-Appendix T2 Minister of Religion
-Appendix T2 Sportsperson
-Appendix UK Ancestry
-Appendix Global Talent
-Appendix T5 (Temporary Worker) International Agreement Worker
-Appendix Hong Kong British National (Overseas)
-Appendix ECAA Extension of Stay
The existing rules continue to apply to anyone applying under a different route so if you are not applying in one of the above categories, or you are applying before 1 December 2020, you may disregard the new (post December 1, 2020) Appendix English Language. For everyone else, here is a brief overview of the new rules.
Applicants are exempt from the English requirement if at the date of application they are aged 65 or over, under 18 or they have a physical or mental disability which prevents them from meeting this requirement. Presumably, anyone seeking to rely on the latter provision will be expected to provide strong medical evidence.
Met in a previous application
"EL 3.1. An applicant will meet the English language requirement if they have already shown they met the requirement, at the level required for their current application, in a previous successful application for entry clearance or permission to stay."
Majority English country
As usual, applicants can meet the English language requirement by being a national of a designated English-language country. The usual list applies, only now with the new addition of Malta. The additional of Malta to the list will apply across all categories in the Immigration Rules, not just the categories listed above.
This is not particularly generous, of course: Maltese nationals are losing their free movement rights, under which there was also no English language requirement. Nor any other requirement for that matter, unlike the new rules they will have to meet in future.
As before, applicants can meet this requirement by having a degree from:
-a UK university;
-a university in a designated English-majority country (except Canada) with evidence of equivalence from NARIC; or
-a university in any other country that was taught in English with evidence of equivalence from NARIC as well as evidence that the degree was taught in English from NARIC.
The only changes are that Malta will now be on the list of designated English-majority countries, and that the ‘degree from a designated English-majority country’ category will now include degrees from Ireland, meaning that Ireland will be treated as an honorary English-majority country for these purposes, despite not being added to the list. As above, these changes are pervasive across all immigration categories, not just the ones to which this Appendix applies.
English language test
As before, though please note there are now five authorised providers: https://www.gov.uk/guidance/prove-your-english-language-abilities-with-a-secure-english-language-test-selt#approved-test-providers-and-approved-tests
GCSE or A Level English
From December 1, 2020, applicants applying under Appendix Student, Appendix Skilled Worker, Appendix Start-up and Appendix Innovator can meet the requirement if they have one of the following qualifications in English (language or literature), as long as they were under 18 and at school at the time and the qualification was awarded by an Ofqual, SQA, Qualification Wales or CCEA awarding body:
-Scottish National Qualification at level 4 or 5
-Scottish Higher or Advanced Higher
Please note that although Appendix English Language applies to a far wider range of routes, this provision only applies to the four routes specified above, though the Explanatory Memorandum does encouragingly refer to this provision as applying to only these four routes “initially”.
It appears that whoever is in charge of keeping the naturalisation form AN up to date jumped the gun on these changes, as the form now asks, seemingly out of context, whether the applicant has previously met the English language requirement by submitting one of the above qualifications.
Additional provisions for students
Appendix Student applicants can alternatively meet the requirement if they are sponsored by a higher education provider with a track record of compliance that specifies on the CAS that they have assessed their English language ability to level B2 or above, and how they have assessed it.
If an applicant in this route sat an approved English language test and was exempted from a component of the test by the provider on disability grounds, and the sponsor has confirmed that they are satisfied with the applicant’s level of English, they will meet the English language requirement.
Finally, the requirement will also be met where an applicant is applying for a short-term programme of up to six months and the study programme is part of a degree-level or above programme in a US higher education institution and NARIC confirms that the overseas course of study will lead to an academic qualification that is equivalent to a UK Bachelor’s degree or above. Medical professional regulation for Skilled Workers
An applicant in this route will meet the English language requirement if they are being sponsored to work as a dentist, doctor, nurse or midwife and they have been assessed by the relevant regulator as meeting the English language requirement for registration.
As advertised by the Home Office, many of these changes do represent a very welcome simplification of the requirements, in particular the widely-drafted provision that means applicants no longer have to prove they meet the English language requirement if they have already met it in a previous application. Other changes, like the provisions that allow applicants to rely on GCSEs and other secondary education awards, are common sense additions that one hopes in the future to see applied across all immigration categories and — if the mysterious form AN update is any indication — citizenship applications.
In-depth analysis of the recent immigration Rules changes - Part 1
First of all, what happens when?
• Most changes take effect on 1 December 2020.
• Most changes relating to provisions for Irish citizens, Appendix EU, Appendix ECAA and Appendix FM take effect on 31 December 2020.
However, changes relating to cancellation, curtailment and revocation of leave to enter or remain for Appendix EU take effect on 1 December 2020.
• Changes relating to Hong Kong British Nationals (Overseas) take effect on 31 January 2021.
In addition, EU nationals cannot apply for leave to remain under routes other than Appendix EU, Appendix S2 Healthcare Visitor or Appendix Service Providers from Switzerland, before 11pm on 31 December. They can apply for any Entry Clearance before then, but any leave will be granted to start on 1 January 2021.
Appendices and simplification
Those words don’t go very well together. It seems that more Appendices are introduced by this Statement of Changes. That said, the Explanatory Memorandum does confirm that:
“Where a route is being simplified, it is added to the rules as an Appendix. This avoids the need for complex cross-references where possible. This is a transitional measure and when the Immigration Rules are fully consolidated and simplified, the routes will be in the body of the rules as separate Parts changes.”
In addition, some appendices will now go: Appendix W, replaced by Appendix Global Talent; Appendix Innovator and Appendix Start-Up. And - what a surprise - Appendix ATAS, Appendix English Language and Appendix Finance are replaced by… Appendix ATAS, Appendix English Language and Appendix Finance.
Lastly, the length of the Statement of Changes is not as bad as it first looks. JUST 514 PAGES ! Some routes, including Tier 2 Minister of Religion, Tier
2 Sportsperson, UK Ancestry, Tier 5 (Temporary Worker) routes and Start-up and Innovators routes do not experience major changes, but they have been re-written (in Appendices, naturally) to, allegedly, make them easier to read.
Changes to “validity”
One big change to be aware of is the introduction of more “validity requirements” across the board. Some will be familiar, like the need to apply on a specified form and to pay the relevant fee. Others, though, are new, such as the need to provide written consent to the application from a government or scholarship agency which sponsored an applicant in the 12 months before the date of application. Other validity requirements are introduced depending on each route, such as the need to have a Certificate of Sponsorship for Skilled Workers; and the need to already be on an appropriate route.
This is important to note because an application which is rejected as invalid rather than refused may interrupt the applicant’s section 3C leave, and therefore make them an overstayer.
Hopefully the Home Office will continue its current practice to allow applicants to “validate” their applications after the facts, by asking for the relevant additional information or documentation. However, some will presumably be fatal, such as the need to already be on an appropriate route.
Major, and restrictive changes are made to the refusal grounds. Most changes, but not all, do not apply to applications under Appendix FM (Family Route), Appendix AF (Armed Forces), Appendix EU (EU Settlement Scheme), Appendix EU (Family Permit), Part 11 (Asylum) (except paragraph 352ZH, 352ZP, 352J and 352U), Appendix S2 Healthcare Visitor and Appendix Service Providers from Switzerland.
• There are new discretionary grounds for refusal or cancellation for customs breaches, rough sleeping or being involved in a sham marriage. Rough sleeping is particularly nasty, considering that some end up rough sleeping as a direct result of Home Office hostile environment policies.
• There is a mandatory ground of refusal for those who have been convicted and sentenced to 12 months or more imprisonment; those who are persistent offenders; and those who have caused serious harm, seemingly without time-limit. In the past, persistent offending and causing serious harm was a discretionary ground. In addition, those sentenced to 12 months or more imprisonment would have their applications refused for 10 years “only”.
• Sentences of less than 12 months imprisonment, and non-custodial sentences and out-of-court disposals recorded on an applicant’s criminal records, will be fatal for a period of 12 months for visitors and others applying for entry for less than 6 months. For other applicants, those lesser sentences will be discretionary grounds for refusal.
• On a more positive note, false representations are now discretionary, rather than mandatory, grounds for refusal, unless “the decision-maker can prove that it is more likely than not that the applicant used deception”.
For the majority of routes, the English language requirement is amended to:
• allow applicants to only prove the required level of English once
• introduce Malta as a “majority speaking English language country”
• allow people with a degree from Ireland to rely on that as proof of English language
• allow applicants to rely on GCSE/A Level or Scottish Highers in English while at school in the UK to prove English language. This last change will, initially, only apply to applications for students, skilled workers, start-up and innovator migrants
Quite a few of the financial requirements of the immigration rules have been updated, although sadly not the Minimum Income Rule for spouses. Bizarrely, some figures differ between the Statement of Changes and the Explanatory Memorandum – make sure you are reading the Statement of Changes. Was this sheer carelessness at the Home Office, last minute decisions or both?
Some positive changes to financial requirements include:
• Students, Skilled Workers, Intra-Company Workers, Tier 2 Ministers of Religion, Tier 2 Sportpersons, Tier 5 (Temporary Workers), Start-up and Innovator applicants will not need to meet the maintenance requirement if they have been in the UK for more than 12 months.
• Applicants can rely on electronic bank statements without needing to have the bank stamp every page (note that this does not apply to Appendix FM-SE applications)
• Applicants will be able to rely on a wider range of accounts (not just cash or cash savings), so long as the funds can be accessed immediately
• Most applicants will need to submit evidence ending within 31 days of the date of application.
In terms of figures:
• The maintenance requirement for Parents of a Child Student will be set at £1,560/month up to a maximum of 9 months; and an additional £625/month for any child other than the Child Student who will be under their care in the UK
• The maintenance requirement for Skilled Workers, Intra-Company Workers, Tier 2 Minister of Religion and Sportpersons, Innovators and Start-Ups, Tier 5 (Temporary Workers), including Seasonal Workers, Religious Workers, Charity Workers, Creative and Sporting workers, International Agreement Workers and Government Authorised Exchange Workers will be increased from £945 to £1,270 and applicants are now required to show they have held the funds for 28 days
• For most dependants, the maintenance requirement is reduced from £630 to £285 for a dependant partner, £315 for the
first child applying and £200 for each subsequent child
• The maintenance requirement for Youth Mobility Applicants will be increased from £1,890 to £2,530 and applicants are now required to show they have held the funds for 28 days
The changes - PART 2
A new Appendix Continuous Residence is introduced, to apply to most routes (but not Appendix FM and Appendix EUSS, for example). Many requirements will be familiar, including that continuity of residence is broken by absences of more than 180 days in any one year. Interestingly, it specifically refers to absences due to a “pandemic” as an exception to the rule.
In recent months, the Home Office has often repeated that those who did not have leave in the UK due to the pandemic would not be treated as overstayers. This has now made it into the rules, by amending paragraph 39E to allow caseworkers to disregard overstaying between 24 January 2020 and 31 August 2020.
Visitors, who so far could only study for up to 30 days, will be allowed to study for up to six months. This also means that applicants who previously had to apply for a short-term student visa to study for a period of between 30 days and 6 months can now apply for a visit visa. There is still a short-term study route for those who want to study for a period of between 6 and 11 months. In addition, visitors who want to study recreational courses are still limited to 30 days.
Volunteering no longer need to be “incidental to the main reason for the visit”, although it should be limited to 30 days.
Academic visitors will have more liberty to apply to extend their permission to stay in the UK for up to 12 months.
Students already had their “big moment” in the last Statement of Changes. However, one additional change brought by these rules is the maintenance level, which will now be £1,334/month for students inside London and £1,023 for students outside of London.
In addition, students and their dependants who are allowed to work will now be able to work as postgraduate doctors or dentists in training.
Lastly, parents of Child students will be granted leave to expire at the same time as the Child Student, or on the Child Student’s 12th birthday, whichever is sooner. This is a positive change as, with the current rules, a parent had to re-apply every twelve months instead.
Reconfirming a lot of what had been announced already, the Tier 2 route is replaced by an Appendix Skilled Workers. The main changes include:
• The minimum skill threshold is lowered from RQF level 6 to RQF level 3.
• The general salary threshold is lowered from £30,000 to £25,600; with this salary being “exchangeable” when other requirements are met, including having a PhD qualification relevant to the job; a PhD qualification in a STEM subject relevant to the job; a job in a shortage occupation; being a new entrant (with this definition being amended to allow those sponsored in postdoctoral research position; those working towards professional qualifications; and those who were on the Student route up to 2 years before the application); or being in a job in a listed health or education occupation.
• The current Tier 2 cap is suspended
• Sponsors will no longer need to undertake a Resident Labour Market Test
• The 12-month “cooling off period” and six-year maximum length of stay in the route are being removed.
• The £35,800 salary threshold for indefinite leave to remain applications is being removed, and replaced with £25,600 or the going rate for the occupation
Interestingly, the Home Office decided not to take into account the MAC’s recommended changes to the Shortage Occupation List yet. The justification is that the Government does not consider changes should be made at this time, before assessing how the UK labour market develops post-Covid 19 and in response to the introduction of the new Points-Based Immigration System.
For this route too, the cooling-off period is removed. There will still be a time-limit on how long an applicant can be under this route, but it will be up to 5 years in any 6-year rolling period or, for high earners, up to 9 years in any 10-year rolling period.
High earners will be those earning an annual salary above £73,900 (instead of £120,000). Those workers can have leave as Intra-Company workers for up to 9 years; and do not need to have been working for the business overseas for 12 months.
There are more flexible “switching” provisions, although applicants still need have been working for the sponsor for 12 months at the date of application (except for high earners).
EU, Swiss and Turkish nationals
Aside from the fact that EEA and Turkish nationals arriving after 31 December 2020 will need to meet the “normal” Immigration Rules, the following changes are made:
• Appendix ECAA Extension of Stay is introduced to replicate the existing ECAA arrangements so that Turkish workers, business persons and family members currently covered by those arrangements can continue to apply. However, suitability requirements are amended so that conduct committed before
the end of the transition period is considered under the previous arrangements for restricting rights, whereas conduct committed after that date will be considered under the UK criminality thresholds.
• Appendix Service Provides from Switzerland is introduced, creating a brand new immigration route for individuals employed by Swiss companies and Swiss self-employed individuals to come to the UK for up to 90 days/year to fulfil contracts in the UK. To be eligible, the contracts must have been signed and commenced before the end of the transition period. The route is expected to run for five years, until 31 December 2025.
• Appendix S2 Healthcare Visitor is introduced to allow eligible patients, and those accompanying them to provide them with care or support, to come to the UK free of charge to receive a course of planned healthcare treatment provided by the NHS under the “S2 route”.
• Appendix FM is amended to allow “new” family members of EU nationals with limited leave under Appendix EU; and of Turkish worker or business persons with limited leave to apply under those Rules. In other words, family relations which started before 31 December 2020 fall under Appendix EUSS and Appendix ECAA, while relations starting after that will fall under Appendix FM
• The rules will provide for those who have not applied under the EUSS before 30 June 2021 to apply after that date if there are “reasonable grounds why they missed the deadline”. This is the rule that was mediatised last week. There is no definition of “reasonable grounds” so presumably the Home Office will issue guidance about it in due course.
• The generous “assumed dependency” of a parent or grandparent of an EU national will be discontinued from 1 July 2021, at which point it will still be possible to apply, but dependency will no longer be assumed and will instead need to be evidenced.
Amendments are made to the Afghan Interpreters ex-gratia relocation scheme, to allow Afghan interpreters who served for a minimum of 12 months to apply, whether they were made redundant or resigned. This is a time-limited amendment, and applications will need to be submitted between 1 December 2020 and 30 November 2022.
Youth Mobility Scheme
San Marino is being added to the Youth Mobility scheme country list as a country without Deemed Sponsorship Status with an allocation of 1,000 places. The Republic of Korea is being added to the list of countries where invitation to apply arrangements apply.
Changes are made to
• the criteria for consideration of senior appointments
• the definition of the types of academic and research roles that qualify, which is being expanded.
Hong Kong British Nationals (Overseas)
The Visa Scheme for Hong Kong British National (Overseas) citizens, details of which had been published in a policy statement, are now in the Rules.
There are two routes:
1. The BN(O) Status Holder route, for BN(O) citizens ordinarily resident in Hong Kong or the UK and their dependent family members
2. The BN(O) Household Member route, for adult children, born on or after 1 July 1997, of BN(O) citizens; and their dependent family members, provided they form part of the same household as the BN(O) citizen.
Overall, a lot of changes; some to look forward to, and others less. What is certain is that everyone concerned will need to get used to a significantly re-arranged set of Immigration Rules, with new Appendix names, new paragraphs numberings, new maintenance figures, new definitions, and, of course, some “points”.