To many who follow the latest immigration news, it may feel as though there has been a never-ending stream of new rules and regulations in the past few months. Changes were made to the Immigration Rules in April, June and July of this year, and yet another Statement of changes was issued following Supreme Court judgments in the cases of Alvi, Munir and Rahman.
We’ve documented these changes and the effects they will have on foreign nationals seeking to work and live in the UK in our blog and news pages. It is widely acknowledged that these changes have caused considerable concern and upset in some quarters , notably the new financial requirement for British citizens and settled persons who wish to sponsor a spouse or partner to settle in the UK.
The Immigration Law Practitioners’ Association (ILPA) has voiced its dismay at the speed in which the various Statements of Change appear to have been drawn up and pushed through Parliament, and has also identified inconsistencies and potential errors within these documents. These were presented to the Home Office in July, and an official response was received by ILPA at the beginning of August.
In this blog we highlight four key errors which ILPA identified, and also set out the Home Office’s response to these concerns. We hope to clarify some of the more confusing changes for our readers, so that they are better equipped to understand the new rules and how they may impact on any immigration applications.
1. Overstayer applications (28 day rule)
From the 1st October 2012, if any UK visa holder overstays their leave by more than 28 days, any application which is submitted for further leave will be refused. However, if you resubmit an application within 28 days of your overstay, then you may still qualify under the rules.
Error: The new rules seemed to suggest that an application would fall for refusal if the applicant had overstayed by more than 28 days by the date of the decision on that application, rather than by the date the application was submitted.
Home Office response:
From 1 October 2012 any application made by an overstayer will be considered under the new overstayer rules, regardless of when that application was made, because the rules in force at the date of decision apply subject to any transitional provisions.
In calculating whether a person has overstayed by a period of 28 days or less the end point is the date of application, not the date of determination. Guidance to applicants and caseworkers to be amended to make this clear.
2. 90 day overstay period before a mandatory re-entry ban commences
This rule applies to overstayers who submit applications within the 28 day period allowed, but are subsequently refused. The overstayer will then have 90 days to leave the UK before becoming subject to an automatic re-entry ban.
Error: ILPA stated that if the time UKBA takes to decide an application by an overstayer results in 90 days being exceeded (where the application has been submitted within 28 days of leave expiring), this should not trigger a mandatory ban. They said that this intention was not reflected by the drafting of the rule.
Home Office response:
The intention behind extending the period of overstaying to 90 days is to allow those who have overstayed for 28 days or less to leave the UK promptly after a refusal of their application and so avoid the re-entry ban.
In calculating whether a person has overstayed by a period of 90 days or less the time during which that application was being determined by UKBA will count. This will be made clear in the guidance to applicants and caseworkers.
3. Domestic Violence
The rules allow for victims of Domestic Violence to apply for indefinite leave to remain (ILR) in the UK when the relationship with their sponsoring spouse or partner has broken down.
Error: ILPA identified a new requirement which states that an applicant for ILR as a victim of domestic violence must have previously had leave to remain in the UK as a spouse or partner of a British citizen or settled person. However, the relevant Statement of Intent indicated no changes were being made in this area.
Home Office response:
There has been no change in policy on victims of domestic violence. The previous rules enabled those in the UK as a spouse or partner of a person settled in the UK or a British citizen whose relationship broke down as the result of domestic violence to apply for indefinite leave to remain. Those in the UK with a different immigration status were not eligible to apply under the previous rules on victims of domestic violence. The situation is the same under the new rules.
The Home Office’s response here is clearly in direct contradiction with ILPA’s findings. We will provide an update once the situation has been clarified further.
4. Points-Based System Dependants
Many changes have been made to UK Family Immigration, with a view to restricting the instances when British citizens or persons settled here can sponsor foreign nationals to live with them in the UK.
Under the new rules there is a requirement for dependants of points-based applicants who wish to apply for ILR to first spend five years leave in the UK as a points-based dependant.
Error: However, ILPA identified that dependants who have not yet completed five years residency in the UK by the date the Points-Based System migrant qualifies for ILR (including investors/entrepreneurs, who qualify for accelerated settlement after two/three years) would then need to switch category and spend an additional five years as the partner of a person present and settled.
Home Office response:
The Home Office accepted that there is an error in how the new rules deal with dependants under the Points Based System. Where a Points Based System migrant qualifies for settlement under Tier 1or 2, it is their policy intention that the partner of that Points Based System migrant should be able to extend their leave and apply for settlement after 5 years with that leave, without the need for them to switch category and spend 5 years as the spouse or partner of a person settled in the UK. The Home Office stated that they would amend the rules to reflect this.
ILPA have identified numerous other concerns with the new rules, and we will look forward to further clarification from the Home Office on these matters. Unfortunately, we are currently unable to advise on when corrections and amendments to the rules will be carried out, and it is quite likely these will take some time to be completed.
If you have identified any parts of the rules which you feel should be reviewed, please write to us and let us know. We look forward to reading your comments below…