EU & non-EU: there have been important changes to the UK immigration rules

The Home Office have just announced some changes to the UK’s immigration rules. They will be of particular interest to those wanting to access the EU Settlement Scheme in the wake of Brexit.

 

These changes are fairly extensive, but are definitely worth knowing!

 

Amendments to the EU Settlement Scheme (EUSS):

 

The Home Office have added to the guidance regarding family members of UK nationals, and if they can access the EUSS or not, and for how long.

 

The below family members will have access to the EUSS until 29 March 2022:

 

• children and grandchildren (including those born overseas after exit day),
• spouses,
• civil partners,
• durable partners,
• parents and grandparents.

 

The below family members will have access to the EUSS until 31 December 2020:

 

• future spouses,
• civil partners and durable partners (where the relationship was established after exit),
• and other dependent relatives

 

What else?

 

The Home Office will count offshore working as permitted absence. So if you have been working on an oil rig for example, that time can be counted as UK residence on an EUSS application.

 

The Home Office have clarified that if you are relying on a family member who has ‘ceased activity’ (i.e retired from work in the UK), then you must have been resident in the UK as their family member before they retired.

 

The Home Office have also clarified that relevant evidence will be expected of people applying to the EUSS on the basis of having an EEA citizen family member.

 

Those applying to the EUSS on the basis of being a dependant parent of an EEA child under 18 will be asked to provide evidence of this child.

 

The Home Office have also said they will allow a non-EEA family member, whose biometric card is lost or stolen overseas, a free of charge EUSS travel permit to enable them to travel to the UK and apply for a replacement biometric card.

 

Discretionary grounds for refusal will be provided should an application to the EUSS be unsuccessful.

 

Changes to Part 9 of the Immigration Rules:

 

To provide additional grounds for the cancellation and curtailment of EUSS status and leave acquired having travelled to the UK with an EUSS family permit, e.g. on grounds this was obtained by deception (such as where the person had claimed to be the family member of an EEA citizen when they were not).

 

Administrative changes:

 

An applicant may challenge a decision made during their application via administrative review.

 

Applicants will also have a right to administrative review where status granted under EUSS is cancelled at the border because the person no longer meets the requirements for that status, e.g. where, as a non-EEA citizen granted pre-settled status under the EUSS, they have ceased to be the family member of an EEA citizen. Such cancellation could only occur where the person no longer met any of the bases for eligibility for status under the EUSS.

 

If an applicant is detained while their case is being reviewed the time they spend in detention will be kept to an absolute minimum, meaning that their case will be given priority.

 

Amendments to s67 leave – relocation and support of unaccompanied refugee children:

 

In June 2018 the Home Office introduced ‘section 67 leave’ which ensured that children who are transferred to the UK under section 67 of the Immigration Act 2016, and who do not qualify for refugee status or international protection, are able to remain in the UK and build a life here. This form of leave allows them to study, work, access public funds and healthcare, and is a route to settlement.

 

Before, this was only available to children who had an application for refugee status or humanitarian protection refused. The new rules mean that the Home Office will grant section 67 leave automatically upon the child’s arrival.

 

Importantly, this change does not remove the entitlement of the child to apply for, or to continue with an application for, refugee status or humanitarian leave should they wish to do so.

 

 

Minor amendments relating to the Start-up and Innovator categories:

 

These new visa routes were introduced in March 2019.

 

A change is being made to the Tier 4 (General) rules to allow students who have submitted a Start-up application supported by an endorsing body to commence their business activities whilst their application is being considered.

 

An exemption from the requirement for ‘start-up’ applicants not to have previously established a UK business is being added for Tier 4 (General) students on the doctorate extension scheme.

 

A correction is being made to confirm that a checkpoint between an applicant and their endorsing body is not required after 24 months in the Start-up category, only in the Innovator category.

 

Minor amendments to the Tier 1 (Investor) category:

 

The Tier 1 (Investor) category is for high net worth individuals making an investment of at least £2 million in the UK. The following changes are being made:

 

The changes made in March 2019 to closing dates are being flexed to allow applicants to make extension or settlement applications after these dates, provided that they move their qualifying investments out of UK Government bonds before either 6 April 2023 in the case of extension applications, or 6 April 2025 in the case of settlement applications.

 

Another change will allow investors who do not meet those deadlines to apply for further extensions and settlement if they meet certain conditions; i.e. invest the full £2 million in qualifying investments before they apply for further extensions and maintain the full £2 million investment for the qualifying period required for settlement.

 

The changes in March 2019 also increased the period for which applicants must provide evidence of their available funds from 90 days to 2 years. Some references to three months were missed in March’s rules changes and these are being corrected in line with the other references to 2 years.

 

A drafting correction is being made to rectify an outdated reference to the definition of a regulated financial institution.

 

Minor amendment to Tier 1 rules – Exceptional talent criteria:

 

The Tier 1 (Exceptional Talent) category is for talented individuals in the fields of science, humanities, engineering, the arts and digital technology to work in the UK without the need to be sponsored for employment in a specific post. Applicants must be endorsed by a Designated Competent Body.

 

At the request of one of the Designated Competent Bodies, Tech Nation, a number of changes have been made:

 

There must be three, rather than just two, letters of support provided by established organisations in the digital technology sector to permit more in-depth consideration of an individual’s skills and the contribution they would make to the sector.

 

The phrase ‘product-led’ has been added to the requirements to ensure the route is used by migrants with the appropriate skill set.

 

At the request of The Royal Society, The Royal Academy of Engineering, and The British Academy, the following changes have been made to increase the number of applicants in science, engineering, and humanities to take advantage of a simpler process under the Tier 1 (Exceptional Talent) route.

 

The Home Office have:

 

• Expanded the list of peer-reviewed fellowships to include fellowships awarded by the National Institute for Health Research
• Expanded the criteria to include applicants who have held a peer-reviewed fellowship in the 12 months immediately prior to date of application
• Expanded the application criteria to allow a wider range of eligible senior academic or research positions to qualify.

 

Minor amendment to Tier 2 (General) category – To remove PhD level occupations from the Tier 2 Cap:

 

The Tier 2 (General) category is the main immigration route for UK employers seeking to recruit non-EEA skilled workers. It is subject to an annual limit of 20,700 places, divided into monthly allocations.

Changes are being made to exempt PhD level occupations from the Tier 2 (General) limit. Announced in the Chancellor’s 2019 Spring Statement, this is to signal that the UK welcome researchers and other highly skilled individuals and will free up places in that tier for other key roles that contribute to the UK economy.

 

Also, as announced in the Spring Statement, amendments are being made to ensure that applicants whose occupations are at PhD level, and who undertake research overseas directly related to their Tier 2 employment, may do so without that absence being ‘counted’ when any application for settlement is assessed. Corresponding amendments are also being made to benefit partners who accompany them in these circumstances.

 

Minor amendment to Tier 2 (General) category – Changes to Shortage Occupation List

 

The Shortage Occupation List (SOL) is being amended following a review by the independent Migration Advisory Committee published 29 May 2019. There is one list covering the whole of the UK and an additional list for Scotland.

 

The SOL means that (i) listed jobs are exempt from the Resident Labour Market Test requirement and are given higher priority within the Tier 2 (General) annual limit; and, (ii) jobholders whose occupations are on the list are exempt from the relevant Tier 2 earnings threshold when they apply for indefinite leave to remain, although they must still be paid the appropriate rate for the occupation.

 

The changes are that:

 

Some new occupations have been added, such as 2112 Biological scientists and biochemists, and 2216 Veterinarians, and a small number removed, such as 1123 Production Manager and directors in mining and energy.

 

A significant number of Standard Occupational Classification (SOC) codes already on the Shortage Occupation List (SOL) but only for limited types of jobs, have been extended to cover all jobs in that occupation code.

 

The qualifying company criteria applying to digitech occupations has been amended/removed.

 

The restriction preventing chefs from working for a sponsor that provides a takeaway service has been removed.

Two further changes arise from the Migration Advisory Committee’s review:

 

Re-classifying from Regulated Qualifications Framework Level 4 to Level 6 the occupation of chartered architectural technologist. This means that employers may sponsor overseas applicants where no suitable resident worker is available.

 

Allowing overhead lines workers, at Linesman Erector 2 (LE2) level and above (SOC 5249) to qualify for Tier 2 (General) with a Resident Labour Market Test if the jobholder’s pay is at least £32,000 per year. Having been removed from the shortage occupation list, this RQF level 4 occupation would not ordinarily meet the minimum skill level for Tier 2 (General), however the MAC recommended they remain eligible to prevent the occupation returning to shortage.

 

Minor amendment to Tier 2 (General) category – Addition of the ‘Teaching Vacancies’ service on GOV.UK to the list of acceptable sources of advertising:

 

The Department of Education ‘Teaching Vacancies’ service on GOV.UK, allows schools based in England to advertise teaching positions to the resident labour market. The Immigration Rules now include this as an acceptable form of advertising.

 

Minor amendment to Tier 2 rules – to ensure migrants are not penalised for certain absences from employment:

 

Changes are being made to Part 6A and Appendix A to ensure that Tier 2 migrants are not penalised if they are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action. The changes mean, for example, that a Tier 2 migrant will not be refused indefinite leave to remain if such absence causes their salary to fall below the required threshold. The Rules already contain exemptions for migrants who are on maternity, paternity, shared parental, or adoption leave.

 

Minor amendment to update the accepted English language test providers and Exemptions to the English language testing requirement:

 

An amendment is being made to Appendix B and Tier 2 (General) requirements to exempt doctors, dentists and nurses and midwives, when making a Tier 2 (General) application, from having to sit an approved English Language Test if they have already passed an English test accepted by the relevant professional regulatory body 5. A corresponding amendment is also being made to provide that Tier 2 doctors, dentists nurses and midwives who have passed such a test are treated as having demonstrated sufficient knowledge of the English language for the purpose of settlement.

 

English language test providers will now be published on the GOV website.

 

Minor amendment to Knowledge of language and Life (KOLL):

 

Amendments are being made to Appendix KOLL so that applicants are no longer required to provide original documents as proof of passing the ‘Life in the UK’ test but need instead only to provide the unique reference number for checking.

 

Changes relating to Tier 4 of the Points-Based System:

 

Tier 4 of the Points-Based System is the route used by non-EEA nationals wishing to study in the UK.

 

Tier 4: The ‘Professional Sportsperson’ definition and Tier 4 (General) Students:

 

The ‘Professional Sportsperson’ definition is being amended to clarify that Tier 4 (General) Students studying at degree level or above at a higher education provider are permitted to play or coach sport as an Amateur whilst in receipt of a sports scholarship, or if doing so as part of a work placement being undertaken as an integral and assessed part of their course.

 

Tier 4: Switching into Tier 2:

 

Tier 4 students studying at degree level or above are now permitted to apply to switch into the Tier 2 route within 3 months of the expected end date of their course, to facilitate such students taking up skilled work in the UK following the successful completion of their studies. A corresponding change is being made to the Tier 4 conditions of leave to allow such students to commence work with their Tier 2 sponsor if they have applied to switch into the Tier 2 route within 3 months of the expected end date of their course.

 

Tier 4: Minor amendment – Masters’ and PhD students changing subject:

 

A change is being made to allow Tier 4 students studying at masters’ and PhD level to commence a different course of study with their current sponsor during a period of leave, provided the other requirements for commencing such a course are met. This will also address an issue around instances of doctoral research qualifications changing focus and the student being unable to obtain leave to remain to complete their course, as they would not meet the requirement for academic progression. This change will remove the need for these students to make an application overseas.

 

 

Minor amendments to Tier 5 rules – update to South Korea deemed sponsorship status:

 

South Korea is added to the list of countries with deemed sponsorship status having gone through the requisite 5-year qualifying period for eligibility.

 

Minor amendments to family rules:

 

Amendments have been made to the introduction section of the Immigration Rules and Appendix FM to replace references to Immigration (EEA) Regulations 2006 with references to the Immigration (EEA) Regulations 2016, which revoked and replaced those from 2006. This is to ensure that the Immigration Rules applicable to EEA and Swiss citizens and their family members refer to the current EEA legislations applicable to them.

 

However, references to the 2006 Regulations are retained, and to predecessor instruments are added, to allow those holding valid residence permits issued under them to be considered ‘present and settled in the UK’.

 

We hope that these rules are helpful to you. We are always here to help if you have any questions you can reach us on 020 7928 0276 or email in to info@lisaslaw.co.uk

 

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