This month has seen the Government making various reforms to the Immigration Rules which many consider as unwelcome and controversial, some of which seems to be in breach of EU Law (most likely on purpose due to Brexit). However, if you are an immigrant it is important that you abide by these laws which you may now be affected by. We have put together a useful guide to tell you what the changes are, when they come into force and how you may be affected by them.

There are two recent developments in this area, being the new Immigration (European Economic Area) Regulations 2016 and changes to the Immigration Rules.

New Immigration (European Economic Area) Regulations 2016

First, we will guide you through the new Regulations, and although they are similar to their 2006 counterpart, some important changes have been added in. These include a softening of the test determining whether the Regulations apply to a family member of a British citizen with a discretion to refuse, increase in appeal fees, a new verification process to determine whether EEA nationals or family members qualify for residence and a refusal of admission if there has been a misuse of a right to reside.

1. Test to determine whether the Regulations apply to a Family Member of a British Citizen has been softened with Potential for Refusal:

An added condition for the Regulations to apply is that the Family Member and British Citizen’s residence in the EEA State must be ‘genuine’. Numerous factors have been included determining whether residence is genuine such as one factor being “the degree of their integration in the EEA State.” However, even if the factors are taken into account discretion is given to refuse the application of the Regulations “where the purpose of the residence in the EEA State was as a means for circumventing any immigration laws applying to non-EEA nationals to which the family member would otherwise be subject.”

When will these changes apply?

These changes apply from 25th November 2016.

2. A New Process to Determine Whether EEA Nationals or Family Members Qualify for Residence:

The Home Office reserves the right to use a verification process to determine whether an individual actually has a right of residence where the Secretary of State either “has reasonable doubt as to whether a person has a right to reside or a derivative right to reside; or wants to verify the eligibility of a person to apply for an EEA family permit or documentation issued under Part 3.” If this is the case and the Home Office wish to verify the individual’s right, they may have to “provide evidence to support a right to reside […] or to support an application for an EEA family permit or documentation; or attend an interview with the Secretary of State.” This process is unlikely to be used often but it is important to know it exists and what your applications could be subject to.

When will the change apply?

This change will apply from the 1st February 2017.

3. Misuse of a Right to Reside will mean the Regulations won’t apply:

Under the Refusal of Admission and Removal part of the 2016 Regulations, a new “Misuse of a Right to Reside” has been introduced which occurs where a person “(a) observes the requirements of these Regulations in circumstances which do not achieve the purpose of these Regulations; and (b) intends to obtain an advantage from these Regulations by engaging in conduct which artificially creates the conditions required to satisfy the criteria set out in these Regulations.” This is a really significant change and could lead to some cases being in contravention of human rights as well as EU law itself. The Secretary of State also has the power to “take an EEA decision on the grounds of misuse of rights where there are reasonable grounds to suspect the misuse of a right to reside and it is proportionate to do so.”

When will the change apply?

This change will apply from the 1st February 2017.

Changes to the Immigration Rules

Three important changes to the Immigration Rules mentioned below include salary level changes for Tier 2 skilled workers, a new English language requirement for Tier 4 students and the overstaying rules becoming stricter.

1. Tier 2 Skilled Workers Salary Level Changes:

The general salary threshold for experienced workers who fall under Tier 2 of the points based system has been increased to £25,000 with exemptions in certain areas, such as nurses and paramedics. The Intra-Company transfer salary threshold for Tier 2 short-term staff has been increased to £30,000. The Intra-Company transfer salary threshold for Tier 2 graduate trainees has been reduced to £23,000 but the number of places each company can provide has been increased to 20 per year.

When will these changes apply?

These changes will apply for Tier 2 sponsors who have been sponsored on or after 24th November 2016.

2. A new English Language Requirement for Tier 4 Students:

A new English Language requirement has been introduced for non-European Economic Area parents and partners at level A2 of the Common European Framework of Reference for Languages, where an elementary level of understanding is needed to fulfill the threshold. This will also affect those applying after 2.5 years in the UK on a 5 year route to settlement under the Appendix FM (Family Member Category) of the Immigration Rules.

When will this change apply?

This change will apply for partners and parents whose leave will expire on or after 1st May 2017.

3. Changes to Overstaying Rules:

The 28-day period/rule of permissible overstaying has been abolished for a more restrictive approach regarding out-of-time applications. Now an application made beyond the date of the applicant’s leave expiring will not be refused on the basis that the applicant has overstayed where the Secretary of State considers that there is a good reason beyond the control of the applicant or their representative, given in or with the application, why an in time application could not be made, provided the application is made within 14 days of the expiry of leave.

When will these changes apply?

These changes will apply for applications made on or after the 24th November 2016.

FAQ

If you or your family member is an EU, EEA or Swiss Citizen, you are able to apply for settlement under this scheme. There are two different types of status – settled status and pre-settled status. The type of status you will receive depends on how long you have been living in the UK for.

If you started living in the UK before 31 December 2020 (or before 12 April 2019 if the UK leaves the EU without a deal) and you have lived in the UK for a continuous 5-years period (at least 6 months in any 12 months period), you may be granted settled status which means you can stay in the UK without restrictions. However, if you do not qualify for settled status then you can apply for pre-settled status instead (see below).

The process and documents required for the application depend on your individual circumstances. Please contact us directly for specialist advice.

The processing of application normally takes about 1 to 4 days. It may take longer if the Home Office requires more information, the application is submitted by post, or an applicant has a criminal record/adverse immigration history.

Yes, you can apply for pre-settle status if you do not meet the requirements for settled status. However, you must have started living in the UK by 31 December 2020 (or by 12 April 2019 if the UK leaves the EU without a deal). Once you obtain pre-settled status, you can stay in the UK for a further 5 years. You may then apply for settled status after 5 years subject to satisfying the criteria.

After you obtain settled status, you should live in the UK continuously for another 12 months and you can then apply for British nationality (subject to satisfying all of the other eligibility criteria).

 

It is free of charge to apply.

We hope this list of changes to the Immigration Rules has provided you with valuable information on changes that may affect you personally. If you need advice on any of these changes, give our experts a call on 01273 696962, request a callback, or email info@arlingsworth.com. You can follow us on FacebookTwitter and  LinkedIn for other important information and updates.

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