New statement of changes to the Immigration Rules: HC 1118 – PART 1

The government has published 205 pages worth of changes to the Immigration Rules. The changes are being phased in over the next few months, starting on 6 April 2022.

This is the first in a series of (at least) three articles on this statement of changes. 

No recourse to public funds

In May 2021, the High Court ruled that government policy on denying benefits to migrants was in breach of the statutory duty to promote the welfare of children. The Home Office is now graciously making changes to reflect that judgment. 

This currently stipulates that immigration permission as a partner, child or parent “normally” comes with no recourse to public funds. The exceptions are if the applicant is “destitute” or there are “particularly compelling reasons” relating to child welfare. The language is being softened to remove the “normally”, add an exception for “imminent destitution”, and make it just “reasons” that don’t need to be particularly compelling.

This takes effect on 20 June 2022.

Students

People who have applied to move from a Student to a Graduate visa will now be allowed to start working straight away, while they wait for the application to be approved. New provisions provides:

A Student who makes a valid application for permission to stay under the Skilled Worker, or Graduate route, may start employment in a full-time permanent vacancy either up to 3 months prior to the course completion date (for the Skilled Worker route) or once they have successfully completed their course of study (for the Graduate route), provided all of the following apply:

(a) the Student is studying a full-time course of study at degree level or above with a higher education provider with a track record of compliance; and

(b) the application as a Skilled Worker, or Graduate, was made when the applicant had permission as a Student; and

(c) a decision has not been made on the Skilled Worker, or Graduate, application, or where a decision has been made, any Administrative Review against a refusal of that application has not been finally determined.

This plus a few other tweaks to the Student and Graduate routes kick in from 6 April.

Seasonal Workers

The Seasonal Worker route is being expanded. It will now allow the recruitment of labourers in the following sectors:

(vii) Bulbs and cut flowers, such as daffodils, grown outdoors and indoors; or

(viii) Pot plants, such as seasonal bedding plants like pansies, violas, germaniums and poinsettias; or

(ix) Hardy ornamental nursery stock such as Christmas trees, shrubs, roses, ornamental trees and perennials; or

(x) Tree and forest nurseries.

This is in addition to the existing fruit pickers etc and takes effect from 6 April 2022.

Settlement for BNOs

On what appears to be a further outbreak of generosity on the already pretty liberal visa route for Hongkongers, those who don’t qualify for settlement will be allowed to stay anyway:

If the requirements for settlement are not met, but the
decision maker believes the applicant is likely to meet all the
suitability and eligibility requirements for permission to stay under
Appendix Hong Kong BN(O) (based on the route under which they
have or last had permission), the application will be varied by the
Secretary of State to an application for permission to stay on that route.

Although the Rules themselves do not say that a settlement application converted in this way into an extension application will be accepted, the explanatory notes do: “as long as the applicant pays the requested Immigration Health Charge, they will be granted permission to stay”.

Those interested in the BNO route should also note that further changes are coming down the track, as ann

ounced by Kevin Foster last month. This one takes effect on 6 April.

Variations and validity

The statement of changes also makes technical changes to the mechanics of applications for immigration permission.

The explanatory notes tell us that the rules are also being changed to “extend the circumstances in which an application can be rejected as invalid”, which is always worrying. Specifically, someone applying as the dependant of a main applicant will see their application rejected without consideration if they fall foul of new provisions:

An applicant applying as a dependent partner or dependent child must be applying as the partner or child of a person (P) where:

(i) P has made a valid application for entry clearance, permission to enter, permission to stay or settlement on the same route as the applicant and that application has not been decided; or

(ii) P has entry clearance, permission to enter, or permission to stay, on the same route as the route on which the applicant is applying; or

(iii) P is settled or a British citizen, providing P had permission on the route on which the applicant is applying when they settled, and the applicant had permission as their partner or child at that time.

These changes apply from 6 April 2022.

English language

Provisions of Appendix English Language allows migrants who have studied English at school in the UK an exemption from taking an English language test.

It is now being extended to cover the family and private life routes; this takes effect from 30 May 2022.