Изменения в иммиграционных Правилах Великобритании
>>> New statement of changes to the Immigration Rules: HC1154: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/716674/CCS207_CCS0618810832-1_HC1154_Web_Accessible.pdf
All changes will come into force on 6 July 2018, although some only apply to applications made after that date.
Returning residents
Iindefinite leave to remain automatically lapses after two years’ absence from the UK. It is possible to have indefinite leave restored if you can show strong ties to the UK.
The new Rules make clearer the distinction between people who have been absent for under two years, and those who have been absent for longer than two years. The former are no longer called “returning residents” and can return without a visa. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. Previously, the Rules simply said that returning residents had to show, “for example, that they had lived here most of their life”. This seems to be a relaxation of the position, which may be in order to cater for people returning under the Windrush scheme — the explanatory memorandum makes that link, at any rate.
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. For example:
Sergei’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. Sergei explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Sergei’s control, such that his application can be considered under the rules, disregarding the overstay.
However, Sergei’s application is refused because he did not meet the financial requirement. The refusal is dated 7 July.
Previously, relying on paragraph 39E, Sergei 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 Sergei. 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.
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).
Tier 1 (General)
The rules relating to indefinite leave to remain for Tier 1 (General) Migrants will be deleted as the route closed on 6 April 2018.
Tier 1 (Exceptional Talent)
For applications submitted after 6 July 2018, the endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses.
Other changes are being made to the criteria for endorsement by each Designated Competent Body, including to evidential requirements and eligible awards for applicants in film and television.
Tier 1 (Investor)
Changes are made so that:
• Applicants cannot withdraw interest and dividend payments generated before they purchased their investment portfolio
• There is a further obligation on financial firms to scrutinise the suitability of applicants’ investment by having to confirm that the funds have only been invested in qualifying investments, and no loan has been secured against those funds.
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.
Tier 2
In summary doctors and nurses are now exempt from the limit on visas for skilled non-EU workers.
Other, smaller, changes to the Tier 2 (General) route include:
• Deletion of references to jobs sponsored at level 4 of the Regulated Qualifications Framework, as, since June 2012, this was increased to RQF level 6.
• Clarification that an applicant cannot own more than 10% of shares, even if indirectly (for example via another corporate entity), in a limited company sponsoring them, save for certain exceptions. The old Rules did not specify that an application could not own the shares indirectly.
• Applicants applying after 6 July 2018 who have been absent on maternity, paternity, shared parental or adoption leave will now need to submit evidence of the adoption or birth.
• Finally, a migrant who has been absent for work without pay for four weeks or more will no longer have their Tier 2 leave curtailed when the absence was for assisting with a national or international humanitarian or environmental crisis overseas, providing their sponsor agreed to the absence(s) for that purpose.
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.
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).
Students
Students who study certain subjects and learn “knowledge and skills that could be used in the proliferation of weapons of mass destruction” are subject to the Academic Technology Approval Scheme (ATAS). They must obtain a certificate before they can start studying those subjects. The Rules will be changed such that this requirement will be applied to all students regardless of the length of their studies (it previously only applied to those courses in excess of six months).
Other changes include:
• students are allowed to study on a study abroad programme, regardless of when the programme is added to their course
• The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 6 months
• Evidence of previous qualifications now include print-outs from awarding bodies’ online checking services, although the Home Office may still ask to see the original certificates of qualification or transcript of results
• Students from certain countries are subject to different documentary requirements under Tier 4 of the Points Based System. The list of eligible countries is expanded and students may benefit from those different requirements even if they apply from their country of residence, and that is different from their country of nationality.
Other changes
Other changes include:
• Removal of Croatians from the limit of allocated endorsements for Tier 1 (Exceptional) Talents and Tier 2 Certificates of Sponsorships. This is because, from 1 July 2018, the fifth-year anniversary of Croatia’s entry in the EU, Croatian nationals will no longer need authorisation to work in the UK and will benefit fully from EU movement rules.
• Changes to list of approved government authorised exchange schemes for Tier 5 migrants
• Confirmation that an adopted child with limited leave under the family Immigration Rules, who is aged 18 years or above by the time of their application for indefinite leave to remain, will need to meet the Knowledge of Language and Life requirement
All changes will come into force on 6 July 2018, although some only apply to applications made after that date.
Returning residents
Iindefinite leave to remain automatically lapses after two years’ absence from the UK. It is possible to have indefinite leave restored if you can show strong ties to the UK.
The new Rules make clearer the distinction between people who have been absent for under two years, and those who have been absent for longer than two years. The former are no longer called “returning residents” and can return without a visa. The latter must apply for leave to enter and must show that they have strong ties to the UK and intend to make the UK their permanent home. Previously, the Rules simply said that returning residents had to show, “for example, that they had lived here most of their life”. This seems to be a relaxation of the position, which may be in order to cater for people returning under the Windrush scheme — the explanatory memorandum makes that link, at any rate.
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. For example:
Sergei’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. Sergei explained that he had been urgently hospitalised and could not have applied before. The Secretary of State accepts this as a good reason beyond Sergei’s control, such that his application can be considered under the rules, disregarding the overstay.
However, Sergei’s application is refused because he did not meet the financial requirement. The refusal is dated 7 July.
Previously, relying on paragraph 39E, Sergei 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 Sergei. 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.
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).
Tier 1 (General)
The rules relating to indefinite leave to remain for Tier 1 (General) Migrants will be deleted as the route closed on 6 April 2018.
Tier 1 (Exceptional Talent)
For applications submitted after 6 July 2018, the endorsement of arts applicants is being widened to include those in the fashion industry who are operating leading designer fashion businesses.
Other changes are being made to the criteria for endorsement by each Designated Competent Body, including to evidential requirements and eligible awards for applicants in film and television.
Tier 1 (Investor)
Changes are made so that:
• Applicants cannot withdraw interest and dividend payments generated before they purchased their investment portfolio
• There is a further obligation on financial firms to scrutinise the suitability of applicants’ investment by having to confirm that the funds have only been invested in qualifying investments, and no loan has been secured against those funds.
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.
Tier 2
In summary doctors and nurses are now exempt from the limit on visas for skilled non-EU workers.
Other, smaller, changes to the Tier 2 (General) route include:
• Deletion of references to jobs sponsored at level 4 of the Regulated Qualifications Framework, as, since June 2012, this was increased to RQF level 6.
• Clarification that an applicant cannot own more than 10% of shares, even if indirectly (for example via another corporate entity), in a limited company sponsoring them, save for certain exceptions. The old Rules did not specify that an application could not own the shares indirectly.
• Applicants applying after 6 July 2018 who have been absent on maternity, paternity, shared parental or adoption leave will now need to submit evidence of the adoption or birth.
• Finally, a migrant who has been absent for work without pay for four weeks or more will no longer have their Tier 2 leave curtailed when the absence was for assisting with a national or international humanitarian or environmental crisis overseas, providing their sponsor agreed to the absence(s) for that purpose.
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.
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).
Students
Students who study certain subjects and learn “knowledge and skills that could be used in the proliferation of weapons of mass destruction” are subject to the Academic Technology Approval Scheme (ATAS). They must obtain a certificate before they can start studying those subjects. The Rules will be changed such that this requirement will be applied to all students regardless of the length of their studies (it previously only applied to those courses in excess of six months).
Other changes include:
• students are allowed to study on a study abroad programme, regardless of when the programme is added to their course
• The minimum length that a postgraduate course needs to be in order for a Tier 4 migrant to be eligible to bring dependants with them to the UK is being reduced from 12 months to 6 months
• Evidence of previous qualifications now include print-outs from awarding bodies’ online checking services, although the Home Office may still ask to see the original certificates of qualification or transcript of results
• Students from certain countries are subject to different documentary requirements under Tier 4 of the Points Based System. The list of eligible countries is expanded and students may benefit from those different requirements even if they apply from their country of residence, and that is different from their country of nationality.
Other changes
Other changes include:
• Removal of Croatians from the limit of allocated endorsements for Tier 1 (Exceptional) Talents and Tier 2 Certificates of Sponsorships. This is because, from 1 July 2018, the fifth-year anniversary of Croatia’s entry in the EU, Croatian nationals will no longer need authorisation to work in the UK and will benefit fully from EU movement rules.
• Changes to list of approved government authorised exchange schemes for Tier 5 migrants
• Confirmation that an adopted child with limited leave under the family Immigration Rules, who is aged 18 years or above by the time of their application for indefinite leave to remain, will need to meet the Knowledge of Language and Life requirement
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