March 31, 2023
Following the Home Office’s Statement of Changes of 09 March 2023, in this alert we focus on those scheduled changes to the Immigration Rules as follows:
- Appendix FM and SM-SE and creation of new Appendices:
- Substitution of the term “refugee leave or with humanitarian protection” for “protection status”.
- Minors changes to clarify that applications for entry clearance can be rejected if the applicant fails to adequately prove their identity and nationality through a passport or other documentation.
- Changes have been made to clarify when it may be appropriate to waive the condition that prohibits access to public funds. These changes provide flexibility in the rules to ensure that individuals with exceptional circumstances are not unfairly excluded from accessing public funds they may need to support themselves.
- Creation of Appendix Family Reunion (Protection):
- To allow partners and children of individuals with protection status in the UK to enter and remain. This appendix has replaced the previous regulations found in sections 352A to 352FJ of Part 11 of the Immigration Rules.
- Creation of Appendix Child Joining a Non-Parent Relative (Protection):
- For Children joining a Non-Parent Relative (Protection) which replaces the previous regulations for limited leave to enter or remain in the UK as a refugee or beneficiary of humanitarian protection under paragraphs 319X to 319Y of Part 8 of the Immigration Rule, for children who are joining a non-parent relative.
- Creation of Appendix Adult Dependant Relative
- The rules have been updated to align with the wider approach to suitability at settlement on Article 8 human rights routes.
- Where an applicant applies for an entry permit or permission to remain, they may be refused if they fail on some grounds of suitability in connection with serious criminality.
- Applicants will need to complete a longer qualification period before being able to settle in the UK if he or she fails on some grounds of suitability (e.g involvement in a sham marriage/civil partnership); however, their removal would breach Article 8 of the European Convention of Human Rights.
- After the recent arguments in the previous appendix regarding the secondary implementation of Article 8 which led to unjustified serious consequences for the applicant or his or her family. The changes set up gladly places for Article 8 respect sequentially after consideration of other requirements. Actually, a more logical and visual change.
- The maintenance undertaking at paragraph 35 in Part 1 of the rules has been incorporated into the Adult Dependent Relative Rules. That means that an applicant may need to show evidence of adequate maintenance and accommodation even so the current definition of ‘adequate’ is still ambiguous.
- Appendix Student:
- Essentially, the update to Appendix Student removes a bespoke set of requirements a dependent partner of a student must meet and instead follows the list of rules set out in Immigration Rules Appendix Relationship with Partner, noted below:
Immigration Rules Appendix Relationship with Partner states:
- The applicant and their partner must be aged 18 or over on the date of application.
- The applicant and their partner must not be so closely related that they would contravene the Marriage Acts 1949 to 1986, the Marriage (Scotland) Act 1977 and 1986, the Marriage (Northern Ireland) Order 2003, the Civil Partnership Act 2004 and the Marriage and Civil Partnership (Scotland) Act 2014.
- Requirement for previous relationships to have broken down permanently unless the applicant or their partner is currently in a polygamous or polyandrous marriage or civil partnership. They may then rely on that marriage or civil partnership for the purposes for entry clearance, permission to enter or stay as a partner where no partner to the marriage or civil partnership is seeking or has been granted:
- (a) permission to enter or stay (except as a visitor or person in transit); or
- settlement; or
- a certificate of entitlement to Right of Abode in the UK.
- Requirement that any marriage or civil partnership is valid ( in the country in which it took place)
- Requirement for a durable relationship where a person is not married or in a civil partnership – if the applicant and partner is not married or is a civil partnership, they must have been in a relationship similar to a marriage or civil partnership for at least 2 years before the date of application
- Genuine and subsisting relationship requirement
- The applicant and their partner must have met in person
- The relationship must be genuine and subsisting.
- Appendix Youth Mobility:
- Introduction section – “The Youth Mobility Scheme provides a cultural exchange programme that allows a person aged between 18 and 30 (or 18-35 for some nationalities), from participating countries and territories, to experience life in the UK for up to 2 years (or 3 years for some nationalities).”
- Analysis: The agreement with New Zealand has been enhanced as the age range is being expanded from 18-30 to 18-35 and the length of stay in being increased from 2 to 3 years.
- Each year the allocation of places available is updated. This year Australia has been allocated 5.000 extra places, and Canada 2000.
- Analysis: As international and trade agreements are enhanced, it is likely that the allocation of places available will continue to increase.
- Appendix V (Visitor):
- This route sees some changes in Permitted Activities. It allows seafarers working on ships on a genuine international route between ports in the UK and overseas destination may deliver or collect goods or passengers in the UK as part of their international journey. The visa holders may receive payment from a UK source in this instance.
- Appendix EU:
- Amendments to EEA regulations definition (a) “(where relevant to something done before 2300 GMT on 31 Page 22 of 182 December 2020)” this change now provides a specific time for the regulation
- Time periods and validity carries on to provide for an EUSS family permit issued from 12 April to be valid in all cases for six months from the date of decision. “for “valid for the relevant period” substitute “valid for a period of six months from the date of decision”.
- Durable partners definition In Annex 1, for sub-paragraph (b)(ii) (bb), now further emphasis original policy intent under the EUSS that it is only applicable where they had another lawful basis of stay in the UK. Residing in the UK before the specified date and end of the transition period that a durable partner “(aaa) was not resident in the UK and Islands as the durable partner of a relevant EEA citizen (where that relevant EEA citizen is their relevant sponsor) on a basis which met the entry for ‘family member of a relevant EEA citizen’”
- A person with a derivative right to reside & Zambrano right to reside definition amendments;
- Zambrano (the primary carer of a British citizen), Chen (the primary carer of a self-sufficient EU citizen child) and Ibrahim & Teixeira (a child in education in the UK of an EU citizen former worker or self-employed person in the UK and the child’s primary carer) – to bring within Appendix EU the current concession that relevant cases are not excluded from eligibility by having leave to enter arising from arrival in the UK with an EUSS family permit.
- Cancellation insert to the Annex; A3.1A. A person’s indefinite leave to enter or remain or limited leave to enter or remain granted under this Appendix must be cancelled where: (a) The person is an excluded person, as defined by section 8B(4) of the Immigration Act 1971, because of their conduct committed before the specified date, and the person does not Page 24 of 182 fall within section 8B(5A) or 8B(5B) of that Act; and (b) The Secretary of State or an Immigration Officer is satisfied that the cancellation is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the Immigration (European Economic Area) Regulations 2016, irrespective of whether the EEA Regulations apply to that person (except that in regulation 27 for “a right of permanent residence under regulation 15” read “indefinite leave to enter or remain or who would be granted indefinite leave to enter or remain if they made a valid application under Appendix EU to the Immigration Rules”; and for “an EEA decision” read “a decision under paragraph A3.1A. of Annex 3 to Appendix EU to the Immigration Rules”).
- Cancellation where the relevant threshold is met in respect of a person subject to a travel ban imposed by the UK or the United Nations Security Council, their EUSS leave is to be cancelled. This will be subject to a right of appeal.
- Sponsor – to prevent a relevant EEA or Swiss citizen granted pre-settled or settled status under the EUSS in error from sponsoring an EUSS family permit.
Newland Chase Insights
If you have any compliance queries on the above or which are more nuanced please contact us directly on [email protected]. For general advice and information on immigration and business travel to the UK, please contact us.
This immigration update is for informational purposes only and is not a substitute for legal or scenario-specific advice. Furthermore, it is important to note that immigration announcements are subject to sudden and unexpected changes. Readers are encouraged to reach out to Newland Chase for any case- or company-specific assessments.