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UK Immigration Rules: Where Are We Now?

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The UK Immigration Rules set out the policy and practice of the Home Office in regulating the entry and stay of migrants in the UK.

The rules apply to all decisions made by immigration officers in relation to applications for entry clearance, leave to enter or remain, or variation of leave to enter or remain in the UK.

The Immigration Rules, however, remain widely criticised for being long, complex and difficult to interpret, divided into several different documents and appendices, and in total running into well over one thousand pages.

The rules are also subject to change, most recently in October 2020 when the Government published the ‘Statement of Changes to the Immigration Rules HC 813‘, which provided the legal framework for the country’s new immigration system.

The following guide provides an overview of the key components of the UK Immigration Rules, and examines some of the complexities arising within the rules and related guidance.

 

Changes to the UK Immigration Rules 2020

At 9am on 1 December 2020, the following will take effect:

  • Introduction (except Provision for Irish Citizens)
  • Part 1: General provisions regarding entry clearance, leave to enter or remain in the UK
  • Part 2: Persons seeking to enter or remain in the United Kingdom for visits
  • Part 3: Persons seeking to enter or remain in the United Kingdom for studies
  • Part 4: Persons seeking to enter or remain in the United Kingdom in an “au pair” placement, as a working holidaymaker or for training or work experience
  • Part 5: Persons seeking to enter or remain in the United Kingdom for employment
  • Part 6: Persons seeking to enter or remain in the United Kingdom as a businessman, self-employed person, investor, writer, composer or artist
  • Part 6A: Points-Based System
  • Part 7: Other Categories
  • Part 8: Family members
  • Part 9: General grounds for the refusal of entry clearance, leave to enter, leave to remain, variation of leave to enter or remain and curtailment of leave in the United Kingdom
  • Part 14: Stateless persons
  • Appendix EL (deletion)
  • Appendix FIN (deletion)
  • Appendix A
  • Appendix AR
  • Appendix ATAS (deletion)
  • Appendix B
  • Appendix C
  • Appendix D (deletion)
  • Appendix E
  • Appendix G (deletion)
  • Appendix J (deletion)
  • Appendix K (deletion)
  • Appendix KOLL
  • Appendix P (deletion)
  • Appendix ST (deletion)
  • Appendix CS (deletion)
  • Appendix U (deletion)
  • Appendix V (deletion)
  • Appendix W (deletion)
  • Appendix V: Visitor (insertion)
  • Appendix Visitor: Permitted Activities Appendix Visitor: Visa National list (insertion)
  • Appendix Visitor: Permit Free Festivals Appendix Visitor: Transit Without Visa Scheme Appendix S2 Healthcare Visitor (insertion)
  • Appendix Student (insertion)
  • Appendix Short-term Student (insertion)
  • Appendix Child Student (insertion)
  • Appendix Parent of a Child Student (insertion)
  • Appendix Skilled Worker (insertion)
  • Appendix Intra-Company routes (insertion)
  • Appendix Skilled Occupations (insertion)
  • Appendix Shortage Occupation List (insertion)
  • Appendix T2 Minister of Religion (insertion)
  • Appendix T2 Sportsperson (insertion)
  • Appendix Representative of an Overseas Business Appendix UK Ancestry (insertion)
  • Appendix Global Talent (insertion)
  • Appendix Start-up (insertion)
  • Appendix Innovator (insertion)
  • Appendix T5 (Temporary Worker) Seasonal Worker (insertion)
  • Appendix T5 (Temporary Worker) Youth Mobility Scheme Appendix Youth Mobility Scheme: eligible nationals (insertion)
  • Appendix T5 (Temporary Worker) Creative or Sporting Worker Appendix T5 (Temporary Worker) Religious Worker (insertion)
  • Appendix T5 (Temporary Worker) Charity Worker (insertion)
  • Appendix T5 (Temporary Worker) International Agreement Worker Appendix T5 (Temporary Worker) Government Authorised Exchange Worker Appendix T5 Creative Workers: Codes of Practice (insertion)
  • Appendix Service Providers from Switzerland (insertion)
  • Appendix ATAS (insertion)
  • Appendix English Language (insertion)
  • Appendix KOL UK (insertion)
  • Appendix Finance (insertion)
  • Appendix Continuous Residence (insertion)

 

Changes taking effect at 11pm on 31 December 2020 notably include:

  • Introduction (Provision for Irish citizens)
  • Appendix FM
  • Appendix FM-SE
  • Appendix AR (EU)
  • Appendix ECAA Extension of Stay
  • Appendix ECAA Settlement

 

The following changes shall take effect on 31 January 2021:

  • Appendix Hong Kong British National (Overseas)

 

Appendices

The appendices cover broad and substantial aspects of the rules, including but not limited to attributes, ie; the points needed for attributes for applicants; the rules relating to the English language, maintenance requirements and knowledge of language and life in the UK (KoLL); as well as the rules relating to family members, visitors and workers coming to the UK.

The Government noted in its October 2020 Statement of Changes that much of the additional appendices would in time be brought into the main body of the Immigration Rules as distinct Parts.

 

How often are the UK Immigration Rules amended?

It is an inherent feature of the UK Immigration Rules that they are subject to constant updates and amendments, either as the Secretary of State’s policy changes or because the Secretary of State is forced to address problems that have manifested themselves in the practical operation of the system.

All changes to the UK Immigration Rules can be accessed online under the “Immigration Rules: statement of changes”. It is also possible to view the archived copies of the consolidated rules as they were on the date before each statement of changes came into effect. These date back to 1994.

That said, it can prove extremely difficult to access up-to-date versions of the underlying legislative provisions, which have also been repeatedly amended. While original versions are readily available online, it is also essential for users to be able to access the current amended versions, which isn’t always possible.

It can also prove difficult to identify precisely which laws were in force at any particular time. In the absence of any detailed analysis of the relevant changes, it can often be hard to discern which pieces of legislation, rules and regulations were in place at an earlier stage when particular disputed decisions were taken.

Seeking professional legal advice is recommended to ensure you are working to the most up to date rules, guidance and interpretation of this complex body of law.

 

Simplification of the Immigration Rules 

Typically, the UK Immigration Rules are amended in a piecemeal way to deal with particular problems as and when they arise. However, because the rules have been allowed to grow organically, in direct response to the needs at any given time, this is not necessarily the way to produce a rational and consistent set of rules.

In addition, not only is it difficult to predict with any certainty how long a particular set of rules and related guidance will remain static, critics, including senior judges and lawyers, frequently criticise the rules for being repetitive, archaic and hard to navigate, not least because they are set out in a non-sequential fashion.

These problems are further compounded by the fact that the UK Immigration Rules no longer contain all or indeed most of the policy that is to be implemented, which is of course their primary purpose. The policy is separately provided in separate unconsolidated guidance that can be accessed through the Home Office website.

Described by one senior judge as a “maze of immigration and asylum procedure”, and another as an “impenetrable jungle of intertwined statutory provisions and judicial decisions”, it is hard to imagine how lay people, and people whose first language is not English and have no recourse to public funding, can be expected to understand how the rules apply to their particular set of circumstances.

Indeed, the rules are not even necessarily fully understood by many immigration officers, yet hundreds of thousands of decisions are made annually, decisions that can be life changing for those seeking entry or leave to remain in the UK.

Accordingly, for many cynics of the system, it is argued that the complexity of the rules serves as a barrier to migrants, effectively but unfairly driving down net migration, as it is only those who can afford a good lawyer who are able to successfully navigate those rules.

Clearly, therefore, there is an acute need for simplification of the UK Immigration Rules so that both immigrants, and immigration officers making the necessary decisions, have a clearer understanding of their rights and responsibilities.

This has been formally recognised through the Law Commission’s “Simplifying the Immigration Rules” project, which was published as a comprehensive report in March 2020.

The Government has pledged to follow recommendations from the report “as part of a wider multi-year programme of change, led by the Home Office, to transform the operation of the border and immigration system”, as detailed in the Statement of Changes to the Immigration Rules HC 813. Indeed, the amended rules acknowledge that the new body of appendices are to be incorporated into the main Rules as Parts.

 

Do you have a question about the UK’s Immigration Rules?

DavidsonMorris are specialist UK immigration lawyers, helping employers of all sizes and across all sectors with their UK immigration and visa needs.

We are working closely 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.

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