ВАЖНЫЕ ИЗМЕНЕНИЯ В ИММИГРАЦИОННЫХ ПРАВИЛАХ
19 November 2016 - UK & EEA Immigration Law Updates from the Legal Centre
We can help you - Вы можем Вам помочь
<noindex>https://legalcentre.org/Initial-Consultation.html</noindex> - ENGLISH
<noindex>https://legalcentre.org/Konsultacija-s-Advokatom.html</noindex> - ПО-РУССКИ
Immigration Rules change
Statement of Changes in Immigration Rules: HC677
HEADLINES
•28 day grace period for disregarding overstaying when making an application for further leave to remain abolished. See amended provision below.
•Changes to Appendix FM, including new English language requirement at level A2 for further leave as a partner or parent after completing 30 months on a 5-year route to settlement under Appendix FM.
•First phase of changes to Tier 2 (General) and Tier 2 (ICT) following the Migration Advisory Committee Review.
•Further changes to Tier 1, Tier 2, Tier 4, Tier 5 and provisions on overseas domestic workers.
•Anticipated changes to refugee leave and refugee family reunion not included but there are new provisions on inadmissibility of asylum applications including with reference to first country of asylum and safe third country.
•Mandatory refusal of limited or indefinite leave where an applicant is excluded under Article 1F from the Refugee Convention or under para 339D from humanitarian protection or is a danger to the security of the UK or, having been convicted by final judgment of a particularly serious crime, is a danger to the community of the UK.
GENERAL
Changes to periods within which applications for further leave to remain can be made by overstayers
The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where the person applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.
There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made.
Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.
Changes relating to applications and validity
The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.
The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.
Changes to general grounds for refusal and suitability requirements
Refusal of limited or indefinite leave to remain where an applicant is excluded under Article 1F from the Refugee Convention; under paragraph 339D from a grant of humanitarian protection; is a danger to the security of the UK; or having been convicted by a final judgment of a particularly serious crime, is a danger to the community of the UK, is made mandatory rather than discretionary. Instead limited leave will be granted outside the Immigration Rules under the restricted leave policy for as long as human rights considerations prevent deportation or removal. Indefinite leave to remain will only be given on a discretionary basis outside the rules and pursuant to the restricted leave policy. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.
Changes to administrative review
Paragraph AR2.4 is ‘clarified’ to ensure that reviewers may consider evidence that was not before the original decision maker in either of the two scenarios identified, not both, as drafted, to reflect the intention of this rule and how it is applied. The two scenarios are:
•that the evidence is submitted to demonstrate that a case working error as defined in paragraph AR2.11 (a), ( or © has been made; and (henceforth ‘or’)
•to demonstrate that the refusal of an application under paragraph 322(2) was a case working error and the applicant has not previously been served with a decision to refuse an application for entry clearance, leave to enter or leave to remain; to revoke entry clearance, leave to enter or leave to remain; to cancel leave to enter or leave to remain; to curtail leave to enter or leave to remain; or remove them from the UK, with the effect of invalidating leave to enter or leave to remain, which relied on the same findings of facts.
The rules are also amended to bring provisions on administrative review ,where leave to enter or remain as a visitor is cancelled at the border on the basis of a change in circumstances, in line with other leave to enter or remain applications. Additional evidence to rebut the finding of a change in circumstances may not be considered at administrative review.
Applications made for administrative review before 24 November 2016 will be decided under the rules in force on 23 November 2016.
FAMILY MIGRATION
Changes to Appendix FM / Appendix FM-SE
See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.
There are changes to the provision on when an application will normally be refused on suitability grounds due to false representations or failure to disclose a material fact so that it applies where: “The applicant has made false representations or failed to disclose any material fact in a previous application for entry clearance, leave to enter or remain or a variation of leave, or in a previous human rights claim; or did so in order to obtain from the Secretary of State or a third party a document required to support such an application or claim (whether or not the application was successful).” This will be applied to applications decided on or after 24 November 2016.
The rules are amended to ensure that a child is only eligible to apply for entry clearance or leave to enter or remain under Appendix FM when their parent is applying for or has leave to under Appendix FM. This applies to applications decided on or after 24 November 2016.
The provisions on minimum income thresholds are amended so that these have to be met in respect of any dependent child of the applicant’s parent’s partner as well as the applicant’s parent. This applies to applications made on or after 24 November 2016.
Changes are made to the specified evidence required to demonstrate meeting the minimum income threshold. The rules provide that changes made to evidential requirements in this and the previous statement of changes (HC877 of March 2016) apply to all applications decided from 24 November 2016, not just those made on or after 6 April 2016.
The level of outstanding debt to the NHS which will found a discretionary refusal of leave on grounds of suitability is reduced from £1000 to £500 for applications decided on or after
24 November 2016.
Changes to Part 8 Family Members
See also above on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.
Changes are made to the transitional provisions to allow applications that do not meet the rules for leave to enter or remain or indefinite leave to enter or remain under Part 8 also to be considered under the children provisions of Appendix FM. This will be applied to applications decided on or after 24 November 2016. There is also a change in the documentary requirements for entry clearance applications involving an inter-country adoption.
ECONOMIC MIGRATION
The statement of changes implements the first of two phases of changes to Tier 2 of the points-based system that were announced by the Government on 24 March 2016 and makes further changes, both to Tier 2 and generally.
Tier 2
Be aware that the time given to applicants and sponsors to respond to requests for further information in relation to genuineness assessments in both Tier 2 (General) and Tier 2 (Intra-company transfer)is being reduced from 28 calendar days to 10 working days.
Tier 2 (General)
Changes made following the Migration Advisory Committee review include:
•Increased salary threshold for experienced workers of £25,000 (but not new entrants where the threshold is held at £20,800). Exemptions for nurses, medical radiographers, paramedics and secondary school teachers in mathematics, physics, chemistry, computer science, and Mandarin ending in July 2019.
•As a transitional arrangement, the £25,000 threshold will not apply to workers sponsored in Tier 2 (General) before 24 November 2016, if they apply to extend their stay in the category. The Government intends to increase the threshold to £30,000 in April 2017; there will be no such transitional arrangement for workers sponsored in Tier 2 (General) between 24 November 2016 and April 2017 – they will need to satisfy the £30,000 threshold in any future application.
•UK graduates who have returned overseas have been weighted more heavily in the monthly allocation rounds under the Tier 2 limit. Graduates who apply in the UK continue to be exempt from the limit.
•Applicants sponsored in graduate training programmes may change occupation within the programme or at the end of the programme without their sponsor needing to carry out a further Resident Labour Market Test or for them to make a new application.
In other changes to Tier 2 (General), from April 2017 sponsors can rely on a milkround that ended up to four years prior to assigning a certificate of sponsorship but only if the worker was offered the job within 6 months of that milkround taking place.
Nurses are retained on the Shortage Occupation List but the rules are changed to require a Resident Labour Market Test to be carried out before a nurse is assigned a Certificate of
Sponsorship. The rules on pre-registration nurses are also consolidated.
Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.
Tier 2 (Intra- Company Transfer)
Changes made following the Migration Advisory Committee review include:
•The salary for short term ICT applicants has been increased to £30,000 for new applicants. A transitional arrangement applies for those already in the UK under the short term route.
•The closure of the Skills Transfer sub-category to new applicants.
•Changes to the Graduate Trainee sub-category. The salary threshold has been reduced from £24,800 to £23,000 and the number of places a sponsor can use has been increased from five to 20 per year.
In addition, a redundant paragraph relating to time spent working in the UK for the Sponsor is being removed, and amendments are being made to the evidential requirements to more accurately reflect the criteria relating to previous working for a business linked to the Sponsor.
Other changes
OTHER CHANGES TO THE POINTS-BASED SYSTEM
Evidential flexibility
The period of time within which the caseworker may get in touch with the applicant or representative and request the corrected document within is changed from seven to 10 working days with effect from 24 November 2016 (see new rule 34B). Circumstances in which this will be done are specified, for example where a document is missing it must be at the beginning of the sequence not at the beginning or end.
Evidence relating to English language requirements
Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.
Tier 1 (entrepreneur)
Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.
Tier 1 (exceptional talent)
Providing that applications for endorsements can come from the Isle of Man (which has its own immigration rules). Changes as to evidence.
Tier 4 (students)
Changes to the definition of an approved qualification. Changes as to evidence. A correction to remove the need for academic progression in cases where, for example, the person has taken a year as a student union sabbatical officer. To allow those studying either an integrated Masters course or an integrated Masters and PhD programme, who are progressing from the lower to higher level qualification to move to a higher level course, and extend their leave from within the UK. To require a Doctorate Extension Scheme application to demonstrate two months of maintenance funds to support themselves until their salaried work starts.
Tier 5 (youth mobility scheme and temporary worker categories)
Setting out the quota’s for youth mobility schemes for 2017. To confer deemed sponsorship status upon Taiwan.
In the temporary worker category A-Rated Tier 5 sponsors are given the option of certifying maintenance in respect of a Tier 5 applicants and dependants. Minor, consequential, changes to government-authorized exchange schemes.
See also below re domestic workers.
Family members
Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.
Overseas domestic workers (Tier 5 and paragraph 159A to 159H)
The Immigration Rules on overseas domestic workers are also amended. In April 2016, the government gave domestic workers in private households and private servants in diplomatic households a right to change employer. They were however only allowed to stay with the new employer for a maximum of six months, or until their leave ends, whichever is the shorter, so for most workers in diplomatic households opting to change employer meant taking a cut in the time for which they could stay in the UK. From 24 November 2016 that is changing and domestic workers in diplomatic households who change employer will be able to work for the rest of their period of leave. The rules do not state whether they have to continue in a diplomatic household to benefit from this (it is understood that while the maximum period of leave has been six months they have not been confined to diplomatic households),
The Immigration Rules are amended with effect from 24 November 2016 to remove the upper age limit (65) currently applied to those applying in the overseas domestic worker in private household category.
From 24 November, when (pre April 2012) domestic workers are applying for more leave, instead of showing that they are required for ‘full-time’ work domestic workers must show that they are required to work a 30 hour week. This is unlikely to b e a problem for most domestic workers.
REFUGEES / ASYLUM
The anticipated changes to periods of refugee leave and refugee family reunion have not been implemented. There appears to be a placeholder at paragraph 11.116 of HC667 which would indicate that those changes were due to be added in and have been removed. A victory, therefore, but one that may be only temporary.
There are significant changes at 11.123 of the statement of changes introducing new paragraphs 345A – 345E. An asylum claim will be declared inadmissible where the following conditions are met:
•another member State has recognized the person as a refugee;
•a country which is not a member State is considered to be a first country of asylum for the applicant, according to the requirements of paragraph 345B;
•a country which is not a member State is considered to be a safe third country for the applicant, according to the requirements of paragraphs 345C and 345D;
•the applicant is allowed to remain in the United Kingdom on other grounds and as a result of this has been granted a status equivalent to the rights and benefits of refugee status;
• the applicant is allowed to remain in the United Kingdom on some other grounds which protect them against refoulement pending the outcome of a procedure for determining their status in accordance with (iii) above.
The content of the rules on first country of asylum and safe third country appear at first glance to reflect articles 26 and 27 of Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status, with added detail on how the connection to the safe third country will be determined. The rule change signals increased consideration of the safe third country option in asylum applications, beyond the Dublin III regulation. Para 345A (iv) appears aimed at preventing those granted humanitarian protection from having their claims for refugee protection being considered.
Changes are made to where Refugee Status or Humanitarian Protection is revoked or ceases to apply to allow for exclusion where there are ‘serious reasons for considering’ that a person has committed a serious crime in addition to where they have committed a crime prior to their admission to the UK. ‘Serious reasons considering’ reflects language used by UNHCR but we wait to see how the provision is applied.
The changes relating to the first country of asylum / safe third country apply to all asylum claims made on or after 24 November 2016. All the other changes apply to decisions made on or after 24 November 2016.
See also above on general grounds for refusal where Article 1F or Article 33(2) of the Refugee Convention apply.
24 November 2016 - UK & EEA Immigration Law Updates from the Legal Centre Legal Centre’s Services at a glance - Вкраце об услугах Legal Centre: - Consultation with the top category Immigration Advocate: <noindex>https://legalcentre.org/Initial-Consultation.html</noindex> - Консультация с иммиграционным адвокатом всшей категории: <noindex>https://legalcentre.org/Konsultacija-s-Advokatom.html</noindex> - Application verification service by the top category Immigration Advocate: <noindex>https://legalcentre.org/Immigration-Applica...on-Service.html</noindex> - Услуга проверки заявлений иммиграционным адвокатом высшей категории : <noindex>https://legalcentre.org/proverka-zayavleniy.html</noindex> - General supervision (de-facto representation) by the top category Immigration Advocate : <noindex>https://legalcentre.org/Genera-supervision.html</noindex> Общее сопровождение дела адовкатом высшей категории : <noindex>https://legalcentre.org/Obshee-soprovozdenie.html</noindex> - Full representation : <noindex>https://legalcentre.org/</noindex> – Полное сопровождение: <noindex>https://legalcentre.org/language.php?lang=ru</noindex> THE NEWS •Updated Guidance on Right of Appeals under Immigration Act 2014 (21 November 2016) <noindex>https://www.gov.uk/government/uploads/syste...Appeal-v4_0.pdf</noindex> Guidance on when there is a right of appeal against decisions in immigration cases, including mechanisms to prevent repeat rights of appeal and prevent delay from appeals against unfounded claims. The guidance has been amended to include a list of applications that cannot be made during the currency of leave under section 3C of the Immigration Act 1971 (namely are not human rights claims), and a fuller EEA appeals guidance section has been added which includes reference to the case of Sala. •Internal guidance for Tribunal caseworkers considering remission applications. Unpublished. 21 November 2016: <noindex>http://www.ilpa.org.uk/resources.php/32705...ished.-21-novem</noindex> •UK Visas and Immigration (UKVI) upholds complaint of EEA family permit applicant wrongly told by UKVI to pay for priority visa service, 24 November 2016 UKVI upholds complaint and refunds fee of applicant who was told by Visa Application Centre staff to pay for the priority visa service to have his application processed on a priority basis when this should not have been necessary because EEA family permit applications are required to be issued as soon as possible under Regulation 12(4) of the Immigration (European Economic Area) Regulations 2006.