Statement of Changes to the Immigration Rules 2020

Statement of Changes to the Immigration Rules 2020 – HC 813

In its Statement of Changes to the Immigration Rules HC 813, the UK Government has set out the legal framework for the country’s new immigration system.

The document, at 514 pages, is far-reaching in its reform of the routes and regulations which allow individuals to enter and remain in the UK.

The Government has stated the changes are “a significant step forward in [the] transformation of our immigration system, implementing the future global points-based immigration system and simplifying and streamlining the rules.”

The changes cover specific aspects of routes for skilled workers, intracompany transferees, visitors and students visa, while also amending and introducing overarching requirements relating to grounds for refusal, English language and finances, criminality and validity.

The changes will take effect on varying dates:

• 1 December 2020: Implementation date for most of the changes.
• 31 December 2020: The majority of changes in respect of Appendix EU, Appendix FM, Appendix ECAA and Irish citizens will take effect.
• 31 January 2021: Two new routes for Hong Kong British Nationals (Overseas) will open.

 

New appendices 

In what the Government has said is a “transitional measure”, the bulk of the changes are being introduced as new appendices to the Immigration Rules, but “in the interests of simplification”, these will in time be included as Parts within the body of the Immigration Rules.

New appendices within the statement include:

• Appendix Global Talent – replacing Appendix W
• Appendix Innovator and Appendix Start-Up
• Appendix ATAS
• Appendix English Language
• Appendix Finance

 

A number of existing appendices have been amended and are subject to relatively minor changes, such as:

• Tier 2 Minister of Religion
• Tier 2 Sportsperson
• UK Ancestry
• Tier 5 (Temporary Worker)
• Start-up & innovators

 

EU nationals

Under the new system, all non-UK residents will require permission to the come to the UK from 1 January 2021 to live, work and study. This includes EEA and Turkish nationals not resident in the UK by 31 December 2020, who will become subject to the Immigration Rules in the same way as non-EEA nationals.

The statement introduces a number of changes and stipulations in relation EU nationals.

In respect of transitional measures, EU nationals will not be able to apply before 11pm on 31 December for leave to remain under any other routes than the Appendix EU, Appendix S2 Healthcare Visitor or Appendix Service Providers from Switzerland. And while EU nationals will be able to apply for entry clearance, any leave granted to EU nationals will be granted from 1 January 2021.

While most of the changes relating to Appendix EU are effective from December 2020, cancellation, curtailment and revocation of leave to enter or remain for Appendix EU will be effective from 1 December 2020.

 

Changes to requirements under the Immigration rules 

Refusal grounds

The new rules reclassify some of the mandatory and discretionary grounds which the Home Office can rely on to refuse an immigration application.

For example, new discretionary refusal grounds have been introduced in respect of being involved in a sham marriage, for customs breaches and for rough sleeping, while false misrepresentation is now deemed a discretionary ground for refusal rather than mandatory.

Note that the changes to refusal grounds do not, for the most part, apply to applications under Appendix EU (EU Settlement Scheme), Appendix EU (Family Permit), Appendix FM, Appendix AF (Armed Forces), Part 11 (Asylum) (except paragraph 352ZH, 352ZP, 352J and 352U), Appendix S2 Healthcare Visitor and Appendix Service Providers from Switzerland.

Criminal grounds 

Changes have also been made to the rules on criminal convictions as grounds for refusal.

The following are now classed as mandatory grounds for refusal:

• The individual has been convicted and sentenced to 12 months or more imprisonment
• The individual is a ‘persistent offender’
• The individual has caused serious harm (note there is no time limit indicated)

 

In addition, custodial sentences of less than 12 months, non-custodial sentences and out-of-court disposals on a criminal record will either constitute a mandatory refusal for a period of 12 months for visitors and those applying for entry for under 6 months, or will be discretionary for all other applicants.

 

UK residence 

Appendix Continuous Residence remains broadly similar to the existing rules, and is applicable to most routes, except for Appendix FM and Appendix EUSS.

 

Validity 

General validity requirements for applications for entry clearance and permission to stay have been introduced for a number of routes in the new rules. These include:

• Use of the correct application form
• Payment of the correct fee(s) and charges, such as the Immigration Health Surcharge
• Submission of biometric information
• Providing required identity document, such as a passport or other document which satisfactorily establishes the applicant’s identity and nationality
• Meeting the minimum age requirement of the relevant route on the date of application
• Meeting any relevant rules as to current or previous leave

In addition to general grounds, many routes will also stipulate specific requirements to be met. For example, skilled worker applicants must have been issued a Certificate of Sponsorship within three months of the date of their application.

Applicants will need to be aware of the significance of validity issues, as should an application be rejected on validity grounds – as opposed to being refused – it may impact the applicant’s leave and render them an overstayer.

 

English language 

Proof of English language ability remains a requirement under the new rules, although several changes have been made.

For example, visa applicants will now only have to prove they meet the language requirement once. The majority speaking English language country list has also been updated to include Malta and those with a degree from an Irish university will be able to rely on this as proof of English language ability.

Skilled worker, student, start up and innovator applicants will also be able to rely on any attained GCSE/A Level or Scottish Highers in English while at school in the UK as proof of their English language ability.

Finances & maintenance

A number of changes and updates have been made to the financial and maintenance requirements for applicants.

New thresholds 

Route	Minimum maintenance funds	Minimum period funds held for
Skilled Worker, Intra-Company Worker, 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	£1,270	28 days
Most dependants	£285 for a dependant partner £315 for the first child applying £200 for each subsequent child	28 days
Youth Mobility Applicants	£2,530	28 days
Parents of a Child Student	£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

 

Applicants can refer to a wider range of accounts as proof of eligibility, provided the funds can be accessed immediately. Electronic bank statements will also be acceptable (except for Appendix FM-SE applications), and most applicants will need to submit evidence ending within 31 days of the date of application

Note that the finance requirement will not apply to applicants for the skilled worker route, ICT, students, Tier 2 Ministers of Religion, Tier 2 Sportpersons, Tier 5 (Temporary Workers), Start-up and Innovator who have been in the UK for more than 12 months.

 

Skilled workers

Earlier papers have already outlined this new route for non-UK resident skilled workers. Namely, that applicants must meet the points-requirement by being sponsored to do a specific job, that has the requisite skill and salary levels, with an employer that has been licensed by the Home Office.

This latest Statement of Changes confirms that the existing Tier 2 route is to be replaced by an Appendix Skilled Workers.

This will see the removal of the Resident Labour Market Test, the Tier 2 cooling off period and the 6-year maximum stay limit, as well as the suspension of the Tier 2 cap.

In addition, the minimum skill threshold is being lowered from RQF level 6 to RQF level 3.

The general salary threshold has been decreased from £30,000 to £25,600. The salary requirement is “tradeable” when other requirements are met, such as where the applicant:

• Has a PhD qualification relevant to the job
• Has a PhD qualification in a STEM subject relevant to the job
• Has a job in a shortage occupation;
• Is a new entrant
• Is in a job in a listed health or education occupation

 

The £35,800 minimum salary threshold for indefinite leave to remain applications is being removed, and replaced with £25,600 or the ‘going rate’ for the occupation

No changes are (as yet) being made to the Shortage Occupation List. The Government has noted it will hold off any such review until after the pandemic and the new system implementation.

 

Intracompany transfers

ICT applicants still need to have been working for the sponsor for 12 months at the date of application, unless they qualify as a ‘high earner’. High earners are those earning an annual salary above £73,900, rather than £120,000.

Additional flexibility is being introduced in relation to ICTs and switching and the the cooling-off period is being removed.

The time limit for ICT leave will be up to 5 years within any 6-year rolling period. This is increased for high earners for up to 9 years in any 10-year rolling period.

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).

Visitors

The rules relating to the visitor visa route have been amended in parts.

Academic visitors will be able to apply to extend their permission to stay in the UK for up to 12 months.

Visitors will now be able stay in the UK for up to 6 months to study – an increase from the previous 30 day limit. Although this increase does not apply to recreational courses.

Those studying between 6 months and 11 months should use the new short-term study route, provided the course is with an accredited institution.

 

Global Talent

The Global Talent rules on the criteria for senior appointments and to the definitions of qualifying academic and research roles have also been amended.

 

Students 

The recent Statement of Changes detailed the new route for students, however, one notable change in the new rules sees the maintenance level change to £1,334/month for students inside London and £1,023 for students outside of London.

 

Honk Kong British National Overseas

The visa scheme for Hong Kong British National (Overseas) citizens, details of which have previously been released, is now part of the Immigration Rules.

Coming into effect on 31 January 2021, the two routes are:

• The BN(O) Status Holder route, for BN(O) citizens ordinarily resident in Hong Kong or the UK and their dependent family members
• 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.

 

Employers adapting to the new rules – need assistance?

As details of the new rules continue to emerge, and as the deadline for implementation approaches, the pressure is on for employers to ensure they are ready for the new system.

We are working with employers to guide them through the transition process, to ensure their knowledge, processes and systems comply with the new rules, so as to minimise disruption to operations and workforce recruitment, mobility and management once the new system takes effect.

For advice on preparing your organisation for the new rules, contact us.