New statement of changes to the Immigration Rules: CP 232

21st July 2020 Immigration

The Home Office’s Statement of Changes published on 24 June 2020 to bring into effect changes across various parts of the Immigration Rules in June and August 2020 could not have come at a more questionable time.

While there are clearly more pressing matters requiring attention in light of the Covid-19 pandemic, the government’s stance has certainly given us an indication of its firm desire to implement the changes despite its country trying to pull out of a catastrophe.

Turning to the statement of changes we find that there are numerous proposed changes, with some that will have a knockback effect on prospective applicants who were held back from applying through qualifying categories amidst the pandemic, but now find themselves not meeting the new requirements.

Representative of an overseas business

Since the abolition of the Tier 1 Entrepreneur category and with the stricter requirements of the Start-up and Innovator Visas, an increasing number of migrants have been utilising Representative of an Overseas Business entry route to the United Kingdom.

This route, widely known as the sole representative visa has received a significant change which would apply to any application submitted on or after 4 June 2020. Whereas previously the Immigration Rules simply required that applications must not be a majority shareholder in the overseas business, this requirement has now received a broader scope, thus making it much more difficult to interpret. The statement of changes sets out that applicants must:

‘not have a majority stake in, or otherwise own or control, that overseas business, whether that ownership or control is by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement.’

The changes also root out the possibility of owners of companies passing control to their partners in order for them to qualify for the visa by not permitting partners of applicants to have a majority stake in the business either.

The statement of changes has also introduced the genuiness test.

“An amendment is being made to prevent an overseas business sending a representative to facilitate their entry to the UK when there is no genuine intention for them to establish a branch or subsidiary in the UK.”

It is now a requirement that applicants must ‘genuinely’ be recruited from outside of the UK and the overseas business must ‘genuinely’ be active outside of the UK. This will give scope to Home Office decision-makers to refuse applications if they do not believe that the applicant has any intention of setting up a branch or subsidiary in the UK, which could potentially lead to more refusals.

The Statement of changes has also added words to the existing Rules in order to clarify and formalise some of the requirements under the visa route. For example, the overseas business must confirm that the applicant has the ‘relevant skills, experience, knowledge and authority’ for the role

Global Talent

The Statement of Changes has sought to provide clarification in areas of vagueness and technical amendments to the specified supporting documents. The length of the Letters of Recommendation has been restricted to three pages and must include the company’s log and address, if applicable. This encourages an applicant to focus the information contained in the letters on their key contributions and accomplishments.

The ‘Fashion Industry’ has now been amended to ‘Fashion Design Industry’ making it clear that this category is for designers.

Those applying under the Tech National endorsements criteria must demonstrate proven technical expertise ‘with the latest technologies’ which may cause some concern for those relying on past achievements. Furthermore, the length of documents allowed to demonstrate the qualifying criteria has been increased from two A4 sides to three A4 sides. This ensures uniformity with the allowable length of a curriculum vitae.

Furthermore, those who have been senior executives of relevant companies can now meet the Key Criteria 1 since this will be replaced with the term ‘director’

A welcomed change is that under the Exceptional Promise of ‘the Arts and Culture’ endorsement criteria, applicants can rely on evidence of appearances, performances, publications or exhibitions, even if they are not credited directly. They would have to provide evidence from a senior individual linked to their work explaining the significant and direct contribution they made.

Where an applicant’s studies in the UK have been sponsored by a government or international scholarship agency in the 12 months before the date of their application, they will require a written consent to their application from them before they can submit their application.

Start-up and Innovator Route

The statement of changes has added a proviso to allow the Home Office decision maker to request further information from an applicant or an endorsing body when they believe the endorsement was not issued properly and refuse any application which they believe was not issued in line with the endorsement criteria.

Higher education providers which have so far been able to endorse Start-up applications, may now also endorse Innovator applications. Additionally and similar to Global Talent, individuals applying for a Start-up or Innovator visa will require written consent to their application from any government or international scholarship agency which sponsored their studies in the UK in the 12 months before the date of their application.

Family Life

Where an individual is applying for limited leave to remain in the UK under Appendix FM of the Immigration Rules, the impact of certain criminal convictions on their application has now changed.

If an applicant has been sent to prison for a period of twelve months to four years, any application for limited leave to remain should only be refused for ten years after the applicant has completed their sentence. This is in line with the Part 9 of the Immigration Rules – grounds for refusal. Previously, such a conviction could lead to a refusal regardless of when it occurred.

A change has also been made for those who are meeting the financial requirement of applications made under Appendix FM through self-employment income.

For self-employed people who require a set of accounts to prove they can meet financial requirements such as the minimum income requirement for a Spouse Visa, the list of accountants they can approach has been extended. Four of the organisations are members of a UK supervisory body. The other six organisations are not but have previously satisfied the requirements for suitable supervision of their member accountants.

It was also made clear that leave as a fiancé/ fiancée or proposed civil partner is to enable the marriage or civil partnership to take place in the UK.

The EU Settlement Scheme

In a series of mostly positive changes, as of 24 August 2020 family members of Northern Ireland citizens can apply to be sponsored under the Settlement Scheme, rather than having to work through the expensive UK family routes of the Immigration Rules. The statement of changes confirms that family members of citizens of Northern Ireland will fall within the scope of the EU Settlement Scheme (EUSS) on the same terms as the family members of Irish citizens in the UK.

This immigration status will be available to the family members of all the people of Northern Ireland, no matter whether the person of Northern Ireland holds British or Irish citizenship or both, and no matter how they identify.

EEA - Retained Rights of Residence

All victims of domestic violence who qualify for the EU Settlement Scheme will be permitted to retain their rights of residence if their relationship broke down because of domestic violence from 24 August 2020. These changes will apply to durable partners, children, dependent parents, and dependent relatives. Currently, this is only applicable to individuals who were married to EEA nationals.

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Sumara Azhar is a Solicitor located in Londonin our Immigration department

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