On 04 March 2021 the Home Office published the latest Statement of Changes to the Immigration Rules and the accompanying explanatory memorandum. The Statement of Changes amend Appendix EU and Appendix EU (family permit) in additional a number of other immigration routes. Some the changes will take place on 06 April 2021, the remainder will happen on 01 July 2021 once the Grace Period has concluded. For an overview of general changes please read our previous blog post on the topic. This post will focus on the changes that apply to EU citizens in the UK after Brexit and the EU Settlement Scheme specifically.
Many of the changes to the EU Settlement Scheme (EUSS) introduced here are technical changes which will not affect the overall qualifying conditions of the Scheme. The two most important changes relate to an apparent clarification on the late applications process and the rules to allow family members of EEA citizens who were resident before the end of the transition period to qualify for EUSS status even if the EEA citizens themselves do not. The current wording of the rules would have barred these family members from obtaining status themselves once the Grace Period concluded on 30 June 2021. This appeared to offend the Withdrawal Agreement between the UK and the EU and would have created unjust outcomes for affected family members.
Regarding late applications to the EUSS, the rules will be changed to enable a person who relies on having reasonable grounds for missing the deadline applicable to them to make one application to the EUSS, so that the Home Office can consider those grounds in assessing their eligibility for EUSS status. Contrasting this with the current wording, which indicated there would be a two-part approach to assessing late applications where the first stage would be to assess the reason for the late application and the second stage being substantive consideration of the applicant’s eligibility for EUSS status, subject to stage 1 being successful, this is a significant improvement. By clarifying in the rules that the late application reasons and EUSS eligibility criteria will be dealt with in a single application, the Home Office is bringing the EUSS in line with the way that the wider immigration system operates.
Applying on time (before 30 June 2021) is still paramount, as the current position of the Home Office is that late applicants to the EUSS do not have any lawful residence rights until they are granted status. Those who apply late, even where they are found to have good reasons, will therefore still face the impact of the hostile immigration environment in the period between 30 June 2021 and the date of the positive outcome of their application (assuming they meet the eligibility and suitability requirements).
Regarding suitability requirements for the EUSS, the Statement of Changes amends the suitability provisions of the EUSS and the EUSS family permit after the end of the transition period, which ended on 31 December 2020. The new rules enable an application to be refused (and the leave or entry clearance granted following such an application to be cancelled) where the applicant’s presence in the UK is not conducive to the public good because of conduct committed after the end of the Transition Period. This is a lower threshold for deportation than under EU law, which applies to conduct committed up to the end of the Transition Period. EU citizens are thus easier to deport for conduct or crimes committed after 31 December 2020.
The second significant change concerns family members of EEA nationals. Where both the national and the family members were continuously resident in the UK before 30 June 2021, or the end of the transition period, the changes will allow for the family member making an application on or after 1 July 2021 to rely on either the qualification of the EEA citizen for EUSS status if they had made a valid application under Appendix EU before 1 July 2021, or that prior residence of the EEA citizen, regardless of whether that EEA citizen has EUSS status or could have qualified for it if they had applied before 1 July 2021. This also applies where the EEA citizen has died (and was resident in the UK as a worker or self-employed person at the time of their death), or where the applicant relies on their documented right of permanent residence or existing indefinite leave to enter or remain.
The purpose of this change is to prevent a situation where the family member of an EEA citizen is prevented from obtaining EUSS status because the EEA themselves has not applied to the EUSS. The current iteration of Appendix EU would have prevented this and it was argued that this breached the Withdrawal Agreement. The Home Office appears to have made these changes to avoid that breach.
Additionally, changes were made to the rules of evidence for family members of EEA citizens applying to the EUSS. Under the new rules, a family member applying to the EUSS can rely on a family permit issued under the old (pre-Brexit) Immigration (European Economic Area) Regulations 2016 as a relevant document evidencing their relationship. Generally, they can rely on the family permit if it was issued on the basis of an application made under the EEA Regulations before 1 July 2021, except where the family member is an extended family member dependent relative. In those cases, the application under those Regulations must have been made by the end of the Transition Period (31 December 2020). Most family members can also rely on those family permits as evidence if the family permit has expired since the end of the Transition Period and before they apply to the EUSS, where they arrived in the UK after the end of that period but before 1 July 2021. Unmarried, durable partners or an extended family member dependent relative applying to the EUSS, however, will not be able to rely on an expired family permit issued under the EEA Regulations.
These changes will make it easier to evidence the family relationship as the Home Office will already have carried out an assessment on the family relationship in order to issue the old family permit. Additionally, there is a change to allow an applicant for an EUSS family permit to rely on alternative evidence of identity and nationality where the applicant is unable to obtain or produce the required document due to circumstances beyond their control or compelling practical or compassionate reasons. This brings the Appendix EU (family permit) approach into line with the way the Appendix EU operates.
Overall the changes should make the EUSS function more smoothly and it is important that family members who have previous residence with an EEA citizen are not penalised solely because that person did not apply to the EUSS (for example because they have left the UK). In terms of late applications, the process should be made as straightforward as possible and so relying on a single application process rather than a two-stage process, is an improvement. This said, the Home Office policy of forcing eligible EUSS applicants into the hostile immigration environment until they are granted status – which could take a long time depending on the complexity of the application – is a harsh penalty for missing a deadline for potential good reason. We know that there are still many people out there who do not know the EUSS applies to them, or who are facing difficulties with the application process; the policy towards these people could and should be more generous.
Last week, the Johnson government published an important Statement of Changes to the immigration rules which amongst other things officially introduces the Graduate route for students and the Global Talent visa into law. Here, we take a look at the main changes, most of which relate to so-called points-based system visas.
The new Graduate route will open for applications on 1 July 2021, allowing international students to stay in the UK for two to three years after completing their studies. In sum, to be eligible for the Graduate route, international students must have completed an eligible course at a UK higher education provider with a track record of compliance with the government’s immigration requirements. Eligible courses are degree-level courses at undergraduate level or above – certain professional qualifications like the Law Practice Course (LPC) also qualify. Bachelor’s and master’s students on the Graduate route will be able to work or look for work after their studies for a maximum period of 2 years. For Doctoral students, the period of leave granted will be for 3 years. Individuals who already have permission as a dependant of students applying on this route can apply to extend their permission as a dependant accordingly. New dependants, however, are not permitted on this route.
All students who began their studies in the fall of 2020 and entered the UK before 21 June 2021 will be eligible to apply. There is no cap on numbers, no minimum salary requirement, and no requirement for applicants to be sponsored by employers. This means that Graduate visa holders will potentially become an important recruitment pool for employers unable to sponsor Skilled Workers.
As for the fine print, the Graduate route will require applicants to make a new visa application before their student visa expires. Making the application will only be possible from inside the UK – which is why applicants who started their course during the pandemic (fall 2020) will need to show they came to the UK before 21 June 2021. Applicants will be expected to pay a visa fee of £700 as well as the Immigration Health Surcharge at the full rate of £624 per year. Students will also need to know the Confirmation of Acceptance for Studies (CAS) they used for their most recent Student (or Tier 4) application in order to apply for the Graduate route.
Important to note is that a period of leave under the Graduate route is not a path to settlement; time spent in the UK on the Graduate visa does not count towards settlement or indefinite leave to remain applications. The idea is that once graduates on the Graduate Route find a suitable job, they will be able to switch into the Skilled Worker category, which can then lead to settlement in the UK. If they do not find a suitable job, they can try to switch into another visa category, or they have to return to their home country.
A second important adjustment in this Statement of Changes is the detailed annex on the Global Talent visa, which is a more flexible, broader rebrand of the old “Tier 1: Exceptional Talent” visa category. Some of its more flexible characteristics include the fact that there is no cap on the number of people who can enter the UK on this visa, that it does not require an employer sponsorship, and that it reduces the leave needed to obtain indefinite leave to remain to 3 years instead of 5 in comparison with other Skilled Worker routes.
Generally, getting a Global Talent visa is a two-stage process. Preliminarily, an applicant will need an endorsement by a recognised organisation in the UK. The organisations are listed on the government website and include the British Academy for humanities and social science, Arts Council England for arts, culture, fashion, film and television, Tech Nation for digital technology, etc. The idea is that specialist bodies across different industries select individuals with a particular talent in their field for this visa. Each endorsing body has different criteria for applicants – it is therefore important that anyone thinking of making an application reads the guidance from the specific endorsing body in detail and ensures that they include all the information needed. The fee to make an application to an endorsing body is £456.
In addition to endorsements, there will also be a list of “prestigious prizes”, the winning of which will qualify applicants for a Global Talent visa without needing an endorsement, bypassing the first step of the visa process. The “prestigious prizes” include Nobel Prizes, Oscars, Golden Globes, Tony Awards, etc.
The second stage of the Global Talent application, then, is the visa process. This is quite straightforward, since there are no quota or financial requirements involved. Most applicants simply need a confirmation that they’ve been endorsed, a valid passport, and a tuberculosis test result if from certain countries. The visa application fee is £152, with a price drop to £97 for nationals of Austria, Belgium, Croatia, Republic of Cyprus, Czech Republic, Denmark, Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Luxembourg, Malta, Netherlands, North Macedonia, Norway, Poland, Portugal, Slovakia, Spain, Sweden or Turkey. Global Talent visa holders will also have to pay the immigration health surcharge in full at £624.
A third important change concerns the conditions of leave to allow Hong Kong BNO’s to access public funds in the UK. Generally, foreign nationals who are not residents in the UK cannot access public funds such as Universal Credit, income support, child benefits, etc. In light of the new route to settlement for Hong Kong citizens which the Prime Minister unveiled last month, the immigration rules soften this requirement for Hong Kong BNO’s using that new visa to move to the UK. They will now be able to to apply for a change of conditions if destitute or at imminent risk of destitution.
Another change concerns the minimum salary for Skilled Workers, which now has to be calculated not only annually, but also hourly. The new Rules state that minimum pay for skilled workers can be no less than £10.10 an hour, even if the annual salary is above the required £25,600 a year (or the lower annual thresholds for new entrants, shortage jobs and people with PhDs). Except of this, some minor changes to the Skilled Worker visa were introduced, including an expansion (finally) of the Shortage Occupation List and changes to make it easier to recruit health and care staff from overseas.
Those are the main game changers contained in the new Statement of Changes. In addition, some other updates were released, including the numbers for the Youth Mobility Scheme allocations for 2021. There have also been some changes to the EU Settlement Scheme (EUSS) suitability criteria, and the EUSS rules for family members, but these concern mostly technical matters.
The new rules will take effect on 6 April 2021 unless otherwise specified in the Statement, kicking off the implementation of the new immigration system the government promised to deliver on in 2019.
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An eventful day in the immigration world, as the Home Office released a Statement of Changes to the Immigration Rules, as well as their most recent set of EU Settlement Scheme quarterly statistics.
The Statement of Changes to the Immigration rules carries some good news. For one, it confirms that victims of domestic violence for durable partners will be eligible for status under the EUSS. This is in line with other government initiatives to tackle domestic abuse in the UK.
In the same vein, any family member within scope of the EUSS whose family relationship with an EEA citizen breaks down is now eligible for status under the EUSS. Previously, only ex-spouses and ex-civil partners of EEA citizens could apply to retain a right of residence after divorce or breakdown of a relationship.
Additionally, for family members of the people of Northern Ireland, the proposed changes extend the EUSS to dual Irish/British citizens, allowing eligible family members of the people of Northern Ireland to apply for UK immigration status under the Scheme on the same terms as the family members of Irish citizens in the UK. Prior to this change, family members of Northern Irish people could not access the EUSS – under the new rules, they are able to do so on the same basis as those of the Republic of Ireland.
These are welcome changes which broaden the applicability of the EUSS. It comes as no surprise, then, that the government considers the EUSS a great success. Today’s EUSS press release boasts that with over a year until the application deadline, currently set at 30 June 2021, almost 3.5 million applications to the scheme, making it the biggest scheme of its kind in British history. 3.1 million of those applications have been concluded, of which 58% were granted settled status, 41% pre-settled status and 1% had other outcomes. Other outcomes include 640 refused, 23,740 withdrawn or void and 10,030 invalid applications.
Most EUSS applications are made online, and are relatively straightforward. But the online service is not available to everyone. The EUSS sets out that applicants must send in paper applications if they don’t have biometric ID documents, or if they are applying on the basis of a derivative right to reside. The latter includes people who are not EU, EEA or Swiss citizens but are applying under the scheme as the family member of a British citizen they lived with in the EU/EEA/Switzerland, the family member of an EU/EEA/Swiss citizen who has become a British citizen, the primary carer of a British, EU, EEA or Swiss citizen, the child of an EU, EEA or Swiss citizen who used to live and work in the UK in education, or such a child’s primary carer.
Immigration lawyers and front-field workers were looking forward to this release of quarterly statistics, as the Home Office had promised to integrate paper applications into the statistics in March, something they had not previously been able to do.
Despite this promise, there is still no information about the paper routes to be found in the newly released statistics. The reason given for failing to deliver on their promise is the COVID-19 pandemic, as the statistics state that it was the Home Office’s “intention to develop electronic integration of the two systems to provide a more complete account of all applications received for the quarterly publication in May 2020, but due to the impacts of Covid-19, this has not been possible.”
The Home Office have also temporarily stopped accepting ID documents by post, which delays the processing paper applications. Nevertheless, the statistics reaffirm that the deadline to apply to the EUSS will not be extended.
Paper applications are amongst the most complex applications under the EUSS, and often represent the most vulnerable individuals in society. As a consequence of the pandemic, charities and outreach projects which assist vulnerable applicants in their applications are unable to operate. As such, the people most unlikely to apply to the EUSS on time (those without ID), and whose applications are most affected by the pandemic (as they have to submit ID documents), are quite literally being left out in the cold: they cannot currently apply, their applications are excluded from the statistics and there is reduced community assistance available. The Home Office is working hard to overcome obstacles and delays caused by the pandemic, and resume normal operation. It is only logical that they should take the same approach towards applicants dealing with hindrances on their side of the process.
In brief, other, non-EUSS related changes to the Immigration Rules include:
Changes to the new Start Up and Innovator visa categories, tightening the requirements that endorsing bodies have to take into account when giving their endorsement
A change to student visas (Tier 4), whereby all applicants who apply under Appendix W who are sponsored for their studies in the UK by a government or international scholarship agency now have to obtain written consent from the relevant organisation.
The new Global Talent visa has been finetuned, as the Rules merge the old Exceptional Talent visa with this new category, and minor amendments have been made at the request of the endorsing bodies.
Changes to the Representative of an Overseas Business visa category, restricting its scope. Representative of an Overseas Business visa holders are employees of overseas businesses which do not have a presence in the UK, to be sent to establish a branch or wholly owned subsidiary of the overseas business in the UK. The changes include that the overseas business must be active, trading and intending to maintain their principal place of business outside the UK; that applicants must have the skills, experience, knowledge and authority to represent the overseas business in the UK; and that applicants must be senior employees of the overseas business.
Some amendments and clarifications regarding family life, including that if an individual is granted leave as a fiancé(e) or proposed civil partner, this automatically enables the marriage or civil partnership to take place in the UK, as well as clarification for the spent period for applicants under the family rules who have been convicted and sentenced to a period of imprisonment for a period between 12 months to four years is 10 years.
Read the full explanatory note here.