A new Statement of Changes to the Immigration Rules (CP 232) was published on 14 May 2020 which will introduce a number of changes across a range of immigration routes. We explore some of its key aspects. Most, but not all, of the changes covered by the statement come into force in June 2020.
Disclaimer: The information in this article is intended for general information only and reflects the position in the law at the date of publication. It does not constitute legal advice and should not be treated or relied upon as such. It is provided without any representations or warranties, express or implied.
The EU Settlement Scheme
The statement of changes confirms that family members of citizens of Northern Ireland will fall within the scope of the EU Settlement Scheme (EUSS). This positive change means that such family members will not have to apply under the more strenuous and expensive UK family routes of the Immigration Rules. Unfortunately the process won’t be in place for some weeks – applications for family members of Northern Irish nationals will be accepted under the EUSS from 24 August 2020.
EEA retained rights of residence
From 24 August 2020, any family member of an EEA national may retain their right of residence if their relationship with the EEA family member broke down due to domestic abuse. Currently, this is only applicable to individuals who were married to EEA nationals.
Representative of an overseas business
CP 232 includes a number of changes to the Representative of an overseas business category, widely known as the ‘sole representative’ route. Those submitting applications from 4 June 2020 will need to ensure the application meets the new requirements. Many of the changes to the Immigration Rules clarify some of the stricter requirements outlined in the Home Office guidance.
For example, the overseas business must confirm that the applicant has the ‘relevant skills, experience, knowledge and authority’ for the role. This criteria was included in the guidance in any case and has now been formalised in the Immigration Rules.
A significant change has been made to the requirement that applicants should not be a majority shareholder in the overseas business. This has typically been interpreted as holding no more than 50% of shares in the company. 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.’
This is much broader in scope and difficult to interpret. We expect the guidance to be updated shortly to clarify how applicants can demonstrate that they meet this requirement.
It will also no longer be possible for the partner of an applicant to obtain a dependant’s visa if they hold a majority stake in the business. This is to ensure that owners of companies do not pass control to their partners in order for them both to be able to qualify for visas.
The statement of changes has added a number of subjective changes to the requirements, including 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 allow Home Office decision makers more discretion which could potentially lead to more refusals.
There have been a number of technical amendments to the Global Talent endorsement requirements in CP232, including standardising the length of letters of recommendation to three pages. These should include the company’s logo and address, if applicable.
For those applying under the Tech Nation endorsement criteria, there have been a number of small changes including that technical applicants must demonstrate proven technical expertise ‘with the latest technologies’ which may cause some concern for those relying on historical achievements. Applicants who have been senior executives of relevant companies can now meet Key Criteria 1, and this will replace the term ‘Director’.
The good news is that those applying under exceptional promise of the Arts and Culture endorsement criteria can rely on evidence of appearances, performances, publications or exhibitions even if they are not named directly. They would have to provide evidence from a senior individual linked to the work explaining the significant and direct contribution they made.
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 the applicant received a sentence of 12 months to four years imprisonment, this should only lead to the refusal of an application where the sentence ended less than ten years ago. This is in line with the Immigration Rules Part 9: 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. Such applicants have always been required to submit accounts which are signed by an accountant from a specified organisation. The list of acceptable organisations has been expanded.
Start-up and Innovator route
The Start-up and Innovator routes were introduced by the Home Office when it ended the Tier 1 (Entrepreneur) route. To successfully obtain a visa through either the Start-up or Innovator route, an applicant must first obtain an endorsement from an approved endorsing body.
Immigration Rules CP 232 adds a provision which will allow a Home Office decision maker to request further evidence from an applicant or the endorsing body when they believe the endorsement was not appropriately issued. The Home Office decision maker will also have the ability to refuse an application where they believe the endorsement criteria have not been met.
Higher education providers which have so far been able to endorse Start-up applications, may now also endorse Innovator applications.
Along with applicants under the Global Talent route, those 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 the applicant’s studies in the UK in the 12 months before the date of their application.
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