New statement of changes to the Immigration Rules: HC1154
On Friday 15 June, a new statement of changes was laid. Rather atypically, many of the changes are welcome news!
All changes will come into force on 6 July 2018, although some only apply to applications made after that date.
As always, practitioners are encouraged to read the new rules in full, but hopefully this post will highlight the main bits to be aware of.
Exceptions for overstayers
As it is currently drafted, paragraph 39E of the Immigration Rules allows overstayers to benefit from the exceptions for overstayers in two consecutive applications. Applicants applying after 6 July will only be able to rely on the exceptions once. This is perhaps better explained by way of example:
Example
Tom’s leave was expiring on 15 June 2017. He submitted an application for further leave to remain as a spouse on 20 June 2017. This application was out of time but within 14 days of his leave expiring. He explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Tom’s control, such that his application can be considered under the rules, disregarding the overstay.
However, Tom’s application is refused because he did not meet the financial requirement. The refusal is dated 7 July.
Previously, relying on paragraph 39E, Tom would have had an opportunity to make another application by 19 July, and again disregarding the overstay. From 6 July, this will no longer be possible for Tom. It is now only possible for an applicant to apply for further leave within 14 days of the expiry of the previous leave disregarding the overstay once.
Another change to rules for overstayers, this time positive, is at paragraph 320(7BB) of the Rules, relating to general grounds for refusal. Paragraph 320(7B) means that an applicant who previously overstayed for 90 days or more before 6 April 2017, or for 30 days or more after 6 April 2017, might have an application for entry clearance refused for up to ten years (see our post on re-entry bans for more details).
Paragraph 320(7BB) sets out the periods of overstay which are disregarded. From 6 July 2018, a period of overstay pending the determination of an out-of-time application where paragraph 39E applied will be disregarded when calculating the period of overstaying in paragraph 320(7B).
Again, an example might explain this best.
Example
Tom’s leave was expiring on 15 June. He submitted an application for further leave to remain on 20 June 2017. This application was out of time but within 14 days of his leave expiring. He explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Tom’s control, such that his application can be considered under the Rules, disregarding the overstay, under paragraph 39E of the rules. The application is refused on 7 July. Tom leaves the UK on 10 July.
For the purposes of paragraph 320(7B), it is considered that Tom only overstayed for three days, from 7 July to 10 July, as the period between 15 June and 7 July is disregarded. Tom will not, therefore, be subject to a re-entry ban.
Tier 1 (Entrepreneur)
There are minor amendments on when letters from legal representatives confirming signatures are required, and provision for accountants to confirm the investment has been made on the applicant’s behalf.
Absences for indefinite leave to remain applications
Certain visa categories, including a number of the work-based categories, require an applicant to show they have been “continually resident” in the UK over a five-year period before they can apply for indefinite leave to remain.
Continuous residence can be broken by absences for a period of 180 days or more in 12 months. Prior to 11 January 2018, the 180-day limit could not be exceeded in any of the five 12-month periods preceding the date of the application. A recent statement of changes, of 7 December 2017, meant that from 11 January 2018, an application could be refused if at any point over the five qualifying years, the 180-day limit is exceeded in any 12-month period. This might seem like a small change but this post by Joanna Hunt explains how significant the change was.
The change was so significant that a number of immigration practitioners lobbied for the change to only apply to those who were granted leave after 11 January 2018. The request has been accepted by the Secretary of State, who has introduced a transitional arrangement to ensure that the new absences calculation rule does not adversely affect applicants whose absences occurred during leave granted under Rules in place prior to 11 January.
A second change to the Rules relating to when continuous residence is broken brings the entry clearance provisions in line with the more generous in-country provisions. Continuous residence will usually not be considered to be broken when the applicant left and returned provided they had leave, and there are some exceptions. Two new exceptions have been added:
• where the applicant makes an application for entry clearance within 14 days of the leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative why the application could not be made during the currency of continuing limited leave; or
• where a successful application for entry clearance is made following the refusal of a previous application to which an exception applied, and the application was made within 14 days of that refusal (or the expiry of the time limit for making an in-time application for administrative review, or any administrative review or appeal being concluded, withdrawn or abandoned or lapsing).
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