There were 5 Statements of Changes to the Immigration Rules in 2014, but which were the important ones and how do they affect you ?
Having trawled through them, so you don’t have to, it strikes me that there are 2 Statements of Changes that you need to know about.
HC532 – This Statement of Changes covers
– Tier 4 (Students) becoming Tier 1 (Entrepreneurs)
– Tier 1 (Post Study Workers) in relation to becoming Tier 1 (Entrepreneurs) ie setting up in business.
WHAT ARE THE CHANGES ?
FIRST CHANGE – FROM JULY 2014 – If you are a Tier 4 student, wanting to become self-employed as an Entrepreneur after graduating, then from 11th July 2014 you can only switch from Tier 4 to Tier 1 (Entrepreneur) if you have access to funding to invest in business from an official source, ie either a UK Entreprenurial Seed Funding Competition endorsed by UK Trade & Investment, or one or more Govt departments.
If you are a Tier 1 (Post Study Worker), then, first of all lucky you (!) and second of all, you can apply to switch into Tier 1 (Entrepreneur) with this funding.
WHAT DOES THIS MEAN ?
There is still a way of setting up in business after completing your degree, but the route has been narrowed by the Home Office. If you are a Tier 4 student, unless you have been living on Planet Mars, you will be aware that all tests provided by Cambridge International Examinations (‘CIE’) and certain tests provided by Cambridge English and Trinity College London have been removed from the list of apprpved English language tests used in various Immigration categories, including the Points Based System and applications used by family members, from 1st August 2014.
SECOND CHANGE of note within this Statement of Changes relates to Family Members and Foriegn Criminals regarding decisions invovling the qualified right to Article 8 Family and Private life in the UK.
From 28th July 2014, the Immigration rules have been amended to show that the weight of Primary legislation ie Acts of Parliament, ie the Immigration Act 2014, is given to the Government’s view of what the public interest requires under Article 8 ECHR.
What does this mean in simple terms for you ? It means that for decisions involving Article 8, the rules for Family Members and Foreign Criminals will be in line with public interest considerations.
For Family Members the public interest will be the economic well being of the UK, so that people who want to enter or remain in the UK are able to speak english, and be financially independent – on the basis that those people are not a burden on taxpayers and are better able to integrate into society.
Little weight will be given to family or private life with with a partner that is established by some-one at a time when they are in the UK unlawfully. Equally, little weight will be given to some-one whose private life is established at a time when their immigration status is precarious. Where some-one has a genuine and subsisting relationship with a child, public interest does not require their removal where they are not liable to deportation.
For foreign criminals deportation will be in the public interest. The more serious the offence, the greater the public interest. Where the sentence is less than 4 years, public interest requires deportation unless 1 of 2 exceptions applies.
Where the sentence is more than 4 years, the public interest requires deportation unless there are very compelling circumstances.
WHAT DOES THIS MEAN FOR FAMILY MEMBERS AND FOREIGN CRIMINALS ?
It means that the legal arguments to be made where you are relying on your Article 8 Family and Private life here in the UK with a partner are more complicated as the rules in their new form are challenged in the Immigration Tribunal and Higher Courts. Watch this space for new caselaw and updates on the way Article 8 Family and Private life cases need to be presented.
HC 693 – This Statement of Changes covers
Tier 4 students losing the right of appeal for in country applications
The introduction of Administrative Review for Tier 4 students
WHAT ARE THE CHANGES ?
FIRST CHANGE – From 20th October 2014 all Tier 4 students applying for permission to extend their stay in the UK as students, lose the right of appeal to the Immigration Tribunal when their application is refused. They will only be able to apply for Administrative Review. In order to understand what this means, you have to look at Appendix AR within the Immigration Rules. It is a procedure operated by the Home Office themselvs. The person undertaking the review is not the person who refused your application.
WHAT DOES THIS MEAN FOR YOU ?
In essence there is a list of ‘Caseworking errors’ that can be considered under this new system. When your application is refused, you apply for Administrative Review, and you have to say which of these ‘Caseworking errors’ applies to your decision, and why.
Examples are – where the original decision maker applied the wrong Immigration Rules – applied the rules incorrectly – where they have not considered all the evidence that was submitted – considered the evidence incorrectly – where the original decision maker failed to apply the Secretary of State’s relevant published Policy Guidance.
You cannot submit new evidence when applying for Admin Review unless an exception applies. The exceptions are – the decision maker has not conisderd all of the evidence submitted – evidence relating to your credibility – evidence that the decision makers conclusion that the supporting documents were not genuine was incorrect.
The possible outcomes vary and include – the decision being withdrawn – permission to extend your stay (known as leave to remain) being granted – if the decision stands, a reason for refusing may be withdrawn or another reason to refuse being given.
WHAT IS THE DEADLINE TO LODGE AN APPLICATION FOR ADMIN REVIEW ?
14 calendar days
WHEN IS IT DECIDED BY THE HOME OFFICE ?
Their service standard is publihsed as 28 days.
WHAT HAPPENS TO YOUR STAY IN THE UK ?
If you made an application for Admin Review and your current leave expired before a decision was made, it is automatically extended whilst Admoin Review is pending, and ends when the notice of outcome is served on you.
SECOND CHANGE – CHANGES TO THE REQUIREMENTS FOR A VALID APPLICATION
Not only do you have to make an application before your current visa expires, in order to remain lawfully in the UK, you must also make a valid application.
This is an applicaiton where you comply with the requirements of the Immigration rules, by eg using the correct and most recent version of the application form, sign and date it, provide all mandatory supporting documents, and authorise the Home Office to take payment by completing the fee payment page.
WHY DOES IT MATTER ?
It matters becuase if your application is returned to you as an ‘attmepted, invalid’ application, it is as though you never made it, and if your visa expired whilst the application was with the Home Office, you are in the UK unlawfully, vulnerable to removal at any time.
If you are removed from the UK by the Home Office, you can also be subject to a 10 year re-entry ban for the UK.
WHAT DOES THIS CHANGE IN THE RULES MEAN TO YOU ?
It appears that you are now being given the chance by the Home Office to rectify any errors or omissions which would make your application invalid.
This is a very important and hugely welcome change to the Immigration rules.
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