Анализ Изменений В Правилах От 24-11-2016

[British Lawyer]

01 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

 

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Further analysis (most interesting points) of the recent UK and EEA Immigration Rules/Regulations changes at the end of November 2016:

 

• 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 theperson 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 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.

 

• Points Based System (PBS)

 

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 2 (General)

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 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.

 

• PBS 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.

 

• EEA Regulations

 

The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)

 

Into effect 25 November 2016 and 1 February 2017. These regulations replace the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) achieving a much needed consolidation. But SI 2016/1052 follows the usual Home Office mantra of ‘no consolidation without change’. Changes to the Surinder Singh (Case C-370/90 ) route, inspired by O & B v The Netherlands (Case C-456/12) come into effect on 25 November 2016. The good news is that the new regulations cover not only British citizens who were workers and self-employed in another member State but also British citizens who have studied or been self-sufficient in another member State. The rules require an assessment of whether residence in another member State was ‘genuine’, recalling the genuineness tests of the Points-Based system. But there is a new reason for refusing a Surinder Singh family member: that the purpose of residence was to circumvent immigration laws that would otherwise have applied to them.

 

Other changes come into effect on 1 February 2017. It appears that the prospect of Brexit has persuaded the Home Office that it can break EU law with impunity. There is a new power to require EEA applications to be made in a prescribed manner. There is a new ‘verification’ process for applications.

 

The abolition of the right of appeal for extended family members is confirmed. Just as the Immigration Act 2016 extends deport first; appeal later powers to turn them into remove first appeal later powers, so the power to force EEA nationals to leave before their appeal is heard is extended to cases where they have been told that they have no right of residence or that they have ‘misued’ EEA rights.