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New Statement of Changes in Immigration Rules (HC309)

12 December 2017 Category: Personal Immigration Jack Freeland

Last week, the Home Office presented a new Statement of Changes in Immigration Rules (HC309)  to Parliament. The changes, accompanied by a detailed explanatory note, will mostly come into force on 11 January 2018, except where otherwise indicated. This article will examine the most notable of these changes, and their effects on certain routes to entry clearance and settlement.

PBS Migrant Absences

In an attempt to curb abuses under work categories and ‘clarify and remove inconsistencies from the rules... for main applicants and their dependents in work categories’ the Home Office has extended the 180 day absence criterion to partners of Points Based System (PBS) dependents during the qualifying period for ILR.

Previously, whilst PBS migrants had to be out of the country for no fewer than 180 days in any given 12 months to qualify for ILR, their partners and dependants did not. As a result, abuses often occurred whereby PBS migrants have ensured that the main applicant given is the person who did not need to leave the UK often, allowing the actual main businessperson to travel extensively out of the UK and still be eligible to qualify for ILR. By extending the criterion to the dependants of PBS migrants, abuses like this under various work categories will no longer be possible.

Tier 1

Certain changes have also found their way into the Tier 1 visa categories. Firstly, the requirements for Tier 1 (Entrepreneur) route have been ‘re-written to make them clearer and easier to follow.’ Whilst the requirements themselves remain largely unchanged, the changes provide clarification on previously unclear provisions, such as clarification on job creation rules and documentary evidence to be provided

As recently announced in the Chancellor’s autumn budget, the number of Tier 1 (Exceptional Talent) visas will double to 2,000. Further changes under this category now allow exceptional talent visa holders to qualify for ILR after three years, and there will now be a ‘simpler application process for applicant’s who hold specific peer-reviewed fellowships or who have been appointed to senior academic or research positions.’ These changes are designed to support the government’s ambitions in innovation and research and development, and are undoubtedly in response to critical claims that the Home Office is putting the UK's research reputation at risk.

Tier 2

In what is possibly, again, a response to the critics on harming the UK’s academic research reputation, the Home Office has introduced ‘further exemptions to the Resident Labour Market Test for posts held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and established researched team members sponsored by a Higher Education Institution or a Research Council.’

Furthermore, in what is a profound change for those under this route, paragraph 245AAA(b) is deleted, and Tier 2 migrants will no longer be required to have been continuously employed through the qualifying period to be eligible for settlement. Previously, the rules provided that breaks of employment could only be disregarded where they amounted to less than 60 days. It meant that those who had a break of more than 60 days between one employment and the other could not apply for ILR after five years. With Tier 2 leave capped at 6 years, this meant that those who had a break in employment of more than 60 days would have to leave the UK after 6 years, and were ineligible to apply for ILR. Undoubtedly this is a welcome change for these applicants.

Students

Students seeking to switch to Tier 2 visas after completing their studies will also now be able to do so as soon as they have completed their course; previously being made to wait until they receive their final results.

For the first time certain part time students will now be able to secure Tier 4 visas, where previously full time study was required. However, this visa will not permit part-time students to hold work rights or bring dependents to the UK.

Other Notable Changes

  • Immigration Bail – Schedule 10 introduces an entirely new provision of ‘immigration bail’ and repeals existing powers of temporary admission and release. Therefore, once the changes come into force, those who have no prospects of being removed and therefore cannot be detained may still be put on bail.
  • Electronic Entry Clearance (EEC) – The Government intends to trial issuing entry clearance in electronic form, with a view to general introduction if successful. In future, applicants in possession of EEC will not be required to present such entry clearance to an Immigration Officer on arrival in the UK for checks, and will only need to present their passport or identity documents.
  • Visitors – A visitor holding a valid visit visa will no longer be required to obtain a separate visa to transit the UK. However, transit visas will still be available for those making ‘transit only’ visits.
 

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