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30 September 2020
On 10 September 2020 the Home Office published new Immigration Rules for students. The rules provide the first glimpse of the new points-based immigration system (PBIS) and highlight what some of its implications will be, not only for students, but also for employers and workers.
The Statement of Changes in Immigration Rules HC 707 introduces new student and child student routes. These routes will come into effect at 9:00am on 5 October 2020 for non-EEA nationals and EEA nationals making applications from abroad, although EEA nationals will have their entry clearance issued starting from 1 January 2021 at the earliest.
EEA nationals who are already in the United Kingdom will be unable to apply before 1 January 2021. This is because EEA nationals who arrive in the United Kingdom before 11:00pm on 31 December 2020 will still be covered by the Brexit transition period and will be eligible to apply under the EU Settlement Scheme (EUSS). Anyone who comes to the United Kingdom as a visitor will be unable to switch their immigration status to a student route in-country – they will have to leave the United Kingdom and apply for entry clearance.
Under the new rules, there will no longer be an eight-year limit on postgraduate studies. This means that UK employers will have a greater chance of being able to hire more highly skilled workers after they have completed their full programme of studies.
When combined with the proposed two-year Graduate visa, international students will now have a clearer route to settlement following 10 years' continuous residence in the United Kingdom, which means that a lower proportion will require sponsorship by employers. This will provide some administrative and cost savings.
Due to the promised abolition of the resident labour market test under the new skilled worker route (which will replace Tier 2 (General)), it will be a more streamlined process to sponsor an international student in circumstances where they have not completed their course in the United Kingdom (or have not completed at least 12 months of their course in the case of PhD students).
In some cases, international students may be considered new entrants to the labour market and so may be paid a minimum of 70% of the relevant going rate for the occupation that they are sponsored to fill as a skilled worker. This will enable sponsorship to be possible a pay level that is aligned with market expectations for those who are at the beginning of their career.
The new rules for students provide some clues about how some aspects of the PBIS will work for employers and therefore what they need to be on top of now.
Tip 1: review immigration and nationality considerations for EEA nationals and their family members as soon as possible
The general position is that the EUSS is a much cheaper, more flexible option for EEA nationals and their family members. Entering the United Kingdom by 31 December 2020 and applying under this route rather than entering in 2021 under the United Kingdom's domestic immigration system will in most cases be advantageous for both individuals and employers.
Therefore, employers should consider:
Potential travel disruptions and self-isolation requirements due to COVID-19 should be factored into the planning process.
Eligibility to apply under the EUSS should be considered for both people who intend to be based permanently in the United Kingdom and those who intend to spend significant time here in the foreseeable future (eg, senior executives, other employees or contractors who must undertake frequent business travel or productive work in the United Kingdom).
The necessity and timing of the EUSS, citizenship and British passport applications should also be considered, taking into account the following:
Tip 2: be ready for new terminology, cross-referencing headaches and teething problems
The rules have been drafted in a new style, following on from the Law Commission's January 2020 report on simplifying the Immigration Rules. Although the finished product may be simpler overall, in the interim, there will be a need for extensive cross-referencing, bringing with it potential for confusion. The old Immigration Rules will be replaced by new ones on a phased basis and the rules must still be workable overall in the meantime.
The new routes for students and workers will mainly be under the PBIS, which is how the Home Office has chosen to distinguish the new categories from the previous points-based system (PBS) categories introduced from 2008. The terms 'leave to enter' and 'leave to remain' are replaced with the less technical sounding 'permission to enter' and 'permission to stay'.
The student categories are set out in two new appendices to the Immigration Rules. A similar approach is likely when the rules are published for workers, with separate appendices being expected for skilled workers and intra-company transfers. It is unclear whether there will be multiple appendices for the various temporary worker categories that currently sit within Tier 5.
The appendix for students includes provisions relating to their dependants. The choice not to centralise the rules for dependants across a range of immigration categories could turn out to be a headache for both the Home Office and users of the rules. There is a high chance that the rules for dependants in different immigration categories will diverge over time, either intentionally or due to drafting errors. This introduces complexity that could trip some users of the system up.
The following student appendices cross-reference to other ones that will cover common issues and will be relevant for work categories as well:
Although the number of cross-referenced appendices will be lower than under the current PBS, there will still be a need to look in multiple places to find out what the full requirements of an immigration route are.
Alongside revisions to the Immigration Rules, the Home Office will also have to update all of its related website content and application forms, as well as its guidance for sponsors, applicants and case workers.
All in all, this amounts to a mammoth undertaking and errors will inevitably be made. It will be a considerable time before the nuances of the new order are fully understood and any unintended issues are ironed out. Users of the system will need to be vocal about raising issues and will likely need to be persistent to get them satisfactorily resolved.
Tip 3: pay attention to validity requirements
One of the notable features of the new student rules is that in addition to the existing requirements to apply on the appropriate application form (ie, to pay application fees and the immigration health surcharge and provide biometrics and a passport or travel document as proof of identity), some requirements that are currently considered to be eligibility requirements will become application validity requirements. For students, these requirements include:
The benefit of this change is that if an application is deemed to be invalid, the application fee will be refunded, whereas it would not be at present.
However, the much larger pitfall is that for in-country applicants, an invalid application will mean that no application will have been considered to have been made at all. This can have severe implications for people who attempt to make an application for further permission to stay immediately before their current permission runs out, because a statutory extension of their leave will not arise.
If such a person finds out that their application is invalid only after their immigration permission has expired and resubmits their application after the expiry of their permission, they will be doing so as an overstayer. This introduces significant complexity and uncertainty into the application process. Further, without a statutory extension of leave, the person would have no immigration conditions, so would be unable to work, study or rent private accommodation during the consideration of their application, even if they were allowed to do so under their previous expired leave.
The Home Office may still provide an applicant with a single opportunity to correct issues that would render their application invalid. However, it remains to be seen what the mechanism will be to enable consideration of an application outside the Immigration Rules where a validity requirement is not met (eg, where an applicant is asking for a switching requirement to be waived).
Tip 4: get any sponsor licences in order and stay on top of CoS allocations
Having a confirmation of sponsorship (CoS) on the date of application will almost certainly be a validity requirement for an application under a sponsored work route. Employers must ensure that they get the timing right for any sponsor applications and requests for CoS allocations so that immigration applications are not unnecessarily delayed. In some cases, timing issues around this could break the continuity of leave of some migrants, resetting the clock for indefinite leave to remain.
Employers should review their sponsor licence and CoS allocation needs regularly. They should be aware that sponsor licence applications can take approximately eight weeks to process and standard requests for revised CoS allocations can take up to 18 weeks. These timelines can be longer if a sponsor visit is required. They could also change if a priority consideration process is resumed or the overall consideration process is revised under the new system.
Tip 5: pay attention to switching requirements
The new rules for students make good on the Home Office's stated intention to liberalise and simplify the situations in which a person will be able to switch from one immigration category or status to another without the necessity to leave the United Kingdom and apply for entry clearance.
For students, switching will be prohibited only from the following types of permission:
The list is likely to be broadly similar for applicants in work categories. As noted above, failure to meet the switching requirement will ordinarily make an application invalid and clarification will need to be sought on how a request to waive a switching requirement should be made. Another point that is not yet resolved is whether the Home Office will consider applications currently being approved under the COVID-19 concessions to have been granted outside the Immigration Rules or not.
Tip 6: consider certifying the financial requirement if possible
For students, it will no longer be necessary to provide evidence of maintenance funds (which will be known as meeting the financial requirement under the new system) if they have been in the United Kingdom with immigration permission for at least 12 months already.
It is unknown what the financial requirements (ie, the maintenance requirement under the present system) will be for the skilled worker, intra-company transfer and other work-related immigration categories; however, it is likely that a similar provision will be made.
Assuming that employer certification is still possible under the new system, it may be a good way to minimise the risk that an application will be refused due to the financial requirement not being met. At present, there is a published list of financial institutions that are or are not deemed to satisfactorily verify financial statements. However, the recently published rules show that the financial requirement will not be met if, among other things, the Home Office is unable to make satisfactory verification checks with the financial institution. The potential problem is that individual applicants will not know in advance whether the Home Office will be able to do that.
While the new Immigration Rules for work routes will not be published until later in Autumn 2020, the new rules for students provide some significant pointers on the Home Office's general thinking and flag some areas in which further policy clarifications will be needed.
For further information on this topic please contact Andrew Osborne or Kathryn Denyer at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
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