Очень ВАЖНЫЕ и ХОРОШИЕ изменения в иммиграционных Правилах
12 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> New statement of changes to the Immigration Rules: HC 1534 – An in-depth review of the changes
There is some very welcome news, including more flexibility given to caseworkers on whether and when they can write to applicants to ask for missing documents. (Whether they will in practice or still refuse for minor mistakes is another matter.) In addition, the Home Office will no longer insist on seeing original documents: copies may be provided. So far, all in line with the Secretary of State’s plan to “introduce an immigration system that allows staff greater freedom to use their common sense”.
Except where otherwise indicated, these changes will come into force on 5 November, although the statement of changes does not specify whether it is for applications submitted after 5 November, or decided after 5 November.
Making a valid application, fee waivers and passports
Paragraph 34 of the Rules, which deals with valid and invalid immigration applications in the UK, is amended to reflect the introduction of a new in-country application process from next month. The bottom line is they are trying to go digital — see the explanatory memorandum here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/747687/Explanatory-memorandum-HC1534-accessible.pdf - says “the ambition is that most applicants will apply online” — and most people will be able to keep their original documents. Accordingly:
• applicants will no longer need to submit passport-size photographs. This has probably been a redundant requirement for some time, given that applicants are already required to enrol their biometric information, which includes a photograph, as part of their application.
• paper forms can only be used if submitting the application by post. Those who will want to use the Premium Service Centre, or its future equivalent – see https://www.gov.uk/government/news/sopra-steria-has-been-awarded-a-new-ukvi-contract - will need to apply online.
If certain (minor) issues arise during the application process, then:
• where an applicant has not submitted a “valid” application, the Secretary of State may give them an opportunity to rectify the mistake within a specified timescale. It used to be that they could only give 10 working days, but they now have discretion to give more time – or less – it still needs to be confirmed
• the Secretary of State now has discretion to consider an invalid application as valid, provided the specified fee was paid and proof of identity submitted (or, if not submitted, one of the exceptions to submit a proof of identity apply – see paragraph 34(5)). For example, if an applicant were to submit the wrong form, or submit an incomplete form, the Secretary of State could still consider the application as if it had been submitted on the right form.
• the Secretary of State will return an applicant’s ID while the application is outstanding, unless he “considers it necessary to retain it”. This is welcome news. Not having a passport can be problematic: it is needed to give notice of an intention to marry or sit the English language / Life in the UK tests. However, leaving the UK while an application is pending will still result in the application being treated as withdrawn
• those who want to apply for a fee waiver can apply online. They will need to make the fee waiver application first. Once that has been considered and they have received a decision by the Home Office, they will then need to make the application for leave to remain within 10 days. As long as the application for leave to remain is made within those 10 days, the date of the application will be the date of the fee waiver, therefore protecting those who make fee waiver applications on time from becoming overstayers.
These changes will take effect on 1 November, and will apply to applications made on or after that date.
More flexibility and copies of documents
Changes to part 6A of the Rules, relating to Point Based System migrants, also offer more flexibility. For example, officials can decide to:
• request an applicant to submit specified evidence which they have left out entirely. As the Rules are currently drafted, they could only do so if “some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided”.
• request more evidence as many times as they wish (the Rules currently specify that a request for documents will only be made once)
• grant an application even if a specified document is omitted or submitted in the wrong format, if the missing information is verifiable from other documents provided in the application or elsewhere.
Documents will not be requested when even if they were provided, the application would still fall to be refused.
These are the good news for the applicants who are worried about having missed any one document in circumstances where it is clear from the rest of the application that the Rules are met. Of course, caseworkers are not obliged to request missing documents (the Rules say “may”, not “must”), but it is hoped discretion will be used whenever applications would otherwise clearly meet the rules.
Another positive development is being able to submit copies of documents rather than originals. These changes are made throughout the Rules, where all references to “original” (as far as it can be seen now) were deleted and/or replaced with “copies”. This can save applicants money and administrative nightmares.
The Legal Centre has been pioneering this approach for over a decade, long before the UK BA decided to “repeat” the firm’s experience. For example, the Legal Centre’s client and the sponsor (spouse) can simply upload their documents into a shared Dropbox folder, and the application can be printed out by either one to submit to the relevant body (the Visa Application Centre in the applicant’s country or Sheffield (for the Settlement applications in certain countries).
EU Settlement Scheme
Changes to the EU Settlement Scheme include:
• changes to reflect the second trial phase of the scheme, which will run from 1 November to 21 December 2018. Details of who will be eligible to apply during this second phase are at pages three to six of the statement of changes and summarised here: https://homeofficemedia.blog.gov.uk/2018/10/11/fact-sheet-eu-settlement-scheme-phase-2/ They include staff in the higher education, health and social sectors across the UK, and “vulnerable individuals” supported by specific local authorities and community groups.
• the introduction of a right to administrative review. This will be available to those whose settled status application is refused on the basis that they do not meet the eligibility requirement and those who are granted limited (pre-settled) rather than indefinite (settled) leave to remain. Those refused on the basis of suitability or those whose application is rejected as invalid will not have a right to administrative review. They are better than typical administrative reviews:
o the application can be made from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending
o the deadline to apply is 28 days after receipt of the refusal (normally the deadline is 14 days for people applying from inside the UK, and 28 if they are applying from abroad)
o the reviewer can take into consideration documents submitted in support of the administrative review which were not available to the decision-maker at the time of the decision (this can only be done in rare circumstances for other administrative reviews) and can even take themselves the initiative to request further documents to an applicant
• amendments are made to align the rights of “Surinder Singh” family members to the family members of EU citizens.
These changes come into place on 1 November.
Other changes
The list of subjects which require an Academic Technology Approval Scheme certificate is updated. The majority of the changes seem to reflect a technical change of name by the Higher Education Statistics Authority rather than a change in the subjects. These changes will take effect on 1 January 2019 for decisions made on or after that date.
Appendix KOLL now specifies the evidence that applicants must provide if they want a medical exemption from the requirement to pass the English language or the Life in the UK tests. People must provide a copy of the form published on gov.uk for this purpose, which can be found here: https://www.gov.uk/government/publications/life-in-the-uk-test-exemption-long-term-physical-or-mental-condition - completed by a doctor who is either:
a. the applicant’s GP or a GP based in the practice with which the applicant is normally registered; or
b. a General Medical Council (GMC) registered consultant
This doctor must have “met with the applicant in person, assessed their ability to fulfill the requirements set out in this appendix, and supports their request for an exception from either or both elements of KOLL on the basis that they have a condition which would prevent them from satisfying the requirements for the foreseeable future”.
>>> New statement of changes to the Immigration Rules: HC 1534 – An in-depth review of the changes
There is some very welcome news, including more flexibility given to caseworkers on whether and when they can write to applicants to ask for missing documents. (Whether they will in practice or still refuse for minor mistakes is another matter.) In addition, the Home Office will no longer insist on seeing original documents: copies may be provided. So far, all in line with the Secretary of State’s plan to “introduce an immigration system that allows staff greater freedom to use their common sense”.
Except where otherwise indicated, these changes will come into force on 5 November, although the statement of changes does not specify whether it is for applications submitted after 5 November, or decided after 5 November.
Making a valid application, fee waivers and passports
Paragraph 34 of the Rules, which deals with valid and invalid immigration applications in the UK, is amended to reflect the introduction of a new in-country application process from next month. The bottom line is they are trying to go digital — see the explanatory memorandum here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/747687/Explanatory-memorandum-HC1534-accessible.pdf - says “the ambition is that most applicants will apply online” — and most people will be able to keep their original documents. Accordingly:
• applicants will no longer need to submit passport-size photographs. This has probably been a redundant requirement for some time, given that applicants are already required to enrol their biometric information, which includes a photograph, as part of their application.
• paper forms can only be used if submitting the application by post. Those who will want to use the Premium Service Centre, or its future equivalent – see https://www.gov.uk/government/news/sopra-steria-has-been-awarded-a-new-ukvi-contract - will need to apply online.
If certain (minor) issues arise during the application process, then:
• where an applicant has not submitted a “valid” application, the Secretary of State may give them an opportunity to rectify the mistake within a specified timescale. It used to be that they could only give 10 working days, but they now have discretion to give more time – or less – it still needs to be confirmed
• the Secretary of State now has discretion to consider an invalid application as valid, provided the specified fee was paid and proof of identity submitted (or, if not submitted, one of the exceptions to submit a proof of identity apply – see paragraph 34(5)). For example, if an applicant were to submit the wrong form, or submit an incomplete form, the Secretary of State could still consider the application as if it had been submitted on the right form.
• the Secretary of State will return an applicant’s ID while the application is outstanding, unless he “considers it necessary to retain it”. This is welcome news. Not having a passport can be problematic: it is needed to give notice of an intention to marry or sit the English language / Life in the UK tests. However, leaving the UK while an application is pending will still result in the application being treated as withdrawn
• those who want to apply for a fee waiver can apply online. They will need to make the fee waiver application first. Once that has been considered and they have received a decision by the Home Office, they will then need to make the application for leave to remain within 10 days. As long as the application for leave to remain is made within those 10 days, the date of the application will be the date of the fee waiver, therefore protecting those who make fee waiver applications on time from becoming overstayers.
These changes will take effect on 1 November, and will apply to applications made on or after that date.
More flexibility and copies of documents
Changes to part 6A of the Rules, relating to Point Based System migrants, also offer more flexibility. For example, officials can decide to:
• request an applicant to submit specified evidence which they have left out entirely. As the Rules are currently drafted, they could only do so if “some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided”.
• request more evidence as many times as they wish (the Rules currently specify that a request for documents will only be made once)
• grant an application even if a specified document is omitted or submitted in the wrong format, if the missing information is verifiable from other documents provided in the application or elsewhere.
Documents will not be requested when even if they were provided, the application would still fall to be refused.
These are the good news for the applicants who are worried about having missed any one document in circumstances where it is clear from the rest of the application that the Rules are met. Of course, caseworkers are not obliged to request missing documents (the Rules say “may”, not “must”), but it is hoped discretion will be used whenever applications would otherwise clearly meet the rules.
Another positive development is being able to submit copies of documents rather than originals. These changes are made throughout the Rules, where all references to “original” (as far as it can be seen now) were deleted and/or replaced with “copies”. This can save applicants money and administrative nightmares.
The Legal Centre has been pioneering this approach for over a decade, long before the UK BA decided to “repeat” the firm’s experience. For example, the Legal Centre’s client and the sponsor (spouse) can simply upload their documents into a shared Dropbox folder, and the application can be printed out by either one to submit to the relevant body (the Visa Application Centre in the applicant’s country or Sheffield (for the Settlement applications in certain countries).
EU Settlement Scheme
Changes to the EU Settlement Scheme include:
• changes to reflect the second trial phase of the scheme, which will run from 1 November to 21 December 2018. Details of who will be eligible to apply during this second phase are at pages three to six of the statement of changes and summarised here: https://homeofficemedia.blog.gov.uk/2018/10/11/fact-sheet-eu-settlement-scheme-phase-2/ They include staff in the higher education, health and social sectors across the UK, and “vulnerable individuals” supported by specific local authorities and community groups.
• the introduction of a right to administrative review. This will be available to those whose settled status application is refused on the basis that they do not meet the eligibility requirement and those who are granted limited (pre-settled) rather than indefinite (settled) leave to remain. Those refused on the basis of suitability or those whose application is rejected as invalid will not have a right to administrative review. They are better than typical administrative reviews:
o the application can be made from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending
o the deadline to apply is 28 days after receipt of the refusal (normally the deadline is 14 days for people applying from inside the UK, and 28 if they are applying from abroad)
o the reviewer can take into consideration documents submitted in support of the administrative review which were not available to the decision-maker at the time of the decision (this can only be done in rare circumstances for other administrative reviews) and can even take themselves the initiative to request further documents to an applicant
• amendments are made to align the rights of “Surinder Singh” family members to the family members of EU citizens.
These changes come into place on 1 November.
Other changes
The list of subjects which require an Academic Technology Approval Scheme certificate is updated. The majority of the changes seem to reflect a technical change of name by the Higher Education Statistics Authority rather than a change in the subjects. These changes will take effect on 1 January 2019 for decisions made on or after that date.
Appendix KOLL now specifies the evidence that applicants must provide if they want a medical exemption from the requirement to pass the English language or the Life in the UK tests. People must provide a copy of the form published on gov.uk for this purpose, which can be found here: https://www.gov.uk/government/publications/life-in-the-uk-test-exemption-long-term-physical-or-mental-condition - completed by a doctor who is either:
a. the applicant’s GP or a GP based in the practice with which the applicant is normally registered; or
b. a General Medical Council (GMC) registered consultant
This doctor must have “met with the applicant in person, assessed their ability to fulfill the requirements set out in this appendix, and supports their request for an exception from either or both elements of KOLL on the basis that they have a condition which would prevent them from satisfying the requirements for the foreseeable future”.
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