This note was prepared by Francesca Sciberras (Senior Solicitor) and Milo Grounds (Paralegal) of Laura Devine
On 22 October 2020, the latest statement of changes was laid before Parliament, setting out the details of the UK’s new points-based immigration system. At a lengthy 514 pages, the statement was not lacking in content, and not only set in stone previously known changes, but also introduced some unforeseen alterations. The Home Office has made a lot of noise regarding simplification and streamlining in the new immigration system, and these concepts feature heavily throughout this statement of changes. This is a necessary and welcome approach, and it is encouraging to see some of the administrative bloat being cut out of the system; getting rid of the cumbersome resident labour market test (RLMT) and loosening the finance and English language requirements being particular highlights. However, the statement of changes also laid out some developments likely to cause significant issues in the future, which we shall explore in this article.
Changes to eligibility and validity requirements
We were treated to a preview of this concept when the statement of changes in relation to the new Student and Child Student routes (together the Student routes) was published in September 2020. The statement announced that in certain circumstances, requirements that were previously considered as being eligibility requirements for a Tier 4 (General) application will be treated as validity requirements for a Student application. Similarly, the latest statement of changes introduced this change across the board, with specific validity requirements for many routes – for example, an application under the Skilled Worker category will be invalid if a Certificate of Sponsorship (CoS) was not issued by the sponsor within three months of the date of an application; if consent is not obtained from a relevant government or scholarship organisation (where required); or if an applicant is not currently within an immigration route which allows switching to the Skilled Worker route. Previously, applications could have fallen for refusal if they did not meet these requirements rather than being rejected for being invalid.
This is not just a matter of semantics: an application that is rejected as invalid rather than refused could result in an applicant overstaying their leave in the UK (invalid applications do not extend leave under section 3C of the Immigration Act 1971). Immigration practitioners were in the past able to submit an application without a CoS (where the CoS was not yet available at the point of submission) to protect a client’s status in the UK (the CoS would then be assigned and submitted once it became available). This option would no longer be possible under the new rules as this would now affect the validity of an application. This is a harsher interpretation of validity and certainly something to keep in mind when submitting an application close to or beyond an applicant’s grant of leave.
More grounds for refusal
Another change which will have a major impact on the new immigration system is the addition of a number of discretionary grounds for refusal, and an overhaul of the criminality threshold. The new discretionary grounds for refusal relate to customs breaches, being involved in a sham marriage, and, surprisingly, rough sleeping.
Introducing rough sleeping as a discretionary ground for refusal when a global pandemic is threatening many people’s homes and jobs and when homelessness is on the rise seems particularly harsh. It is also unclear how the Home Office will reach its conclusions regarding periods of rough sleeping, leading to a further lack of certainty.
In relation to the criminality threshold, the previous tiered system (where longer criminal sentences resulted in longer mandatory bans) has been replaced with a flat sentence-based threshold of 12 months, which applies to offences committed anywhere in the world. An application will now be refused where an applicant has been either convicted of an offence in the UK or overseas for which they have received a custodial sentence of 12 months or more; or they are a persistent offender who has shown a particular disregard for the law; or they have committed a criminal offence which has caused serious harm. These offences will now result in an indefinite ban – a clear indication that the Home Office is taking a much more stringent approach in this area – which will almost certainly become a long-running issue for applicants with historic convictions. The threshold will also apply to those seeking entry to the UK for the first time as a visitor or for entry for less than six months, however it will only create a mandatory ban for 12 months for these groups.
The Shortage Occupation List
On 29 September 2020, the Migrant Advisory Committee (MAC) published its recommended changes to the Shortage Occupation Lists (SOL). The headline recommendation was the suggested addition of 70 new job-types to either the UK-wide or Scotland/Wales/Northern Ireland specific lists, which would increase the share of UK employment roles on the SOL from 9% to 14%. The report also recommended practical changes to the way the SOL should be reviewed, suggesting a minor review every year and a major review every three years.
In this statement of changes, all of the MAC’s recommendations were emphatically rejected, with the reasoning that the Home Office does not consider it an appropriate time to implement changes to the SOL. In particular the impact of COVID-19 and the introduction of the new system are quoted as mitigating factors to accepting the recommendations. It is arguable whether this makes sense, particularly as the impact of COVID-19 was factored into the MAC’s analysis.
It should also be considered that the SOL performs an important function in the current immigration system to prevent shortages in vital occupations, which is likely to become even more important as free movement ends and the UK labour market recovers from COVID-19 – implementing these changes now should prevent larger issues in the long run. Indeed, the addition of more job-types to the SOL is also cited as an important step by the Institute for Public Policy Research (IPPR) in their recent report on building a new immigration system to aid the economic recovery from the impacts of COVID-19.
Discretionary EU Settlement Scheme (EUSS) applications
In relation to the EUSS, the statement of changes laid out an exemption to the cut-off date for those who have ‘reasonable grounds’ as to why they were not able to apply in time. This is a positive development, and will be welcome to vulnerable groups such as children in care and homeless people.
However, there is a lack of guidance in the statement as to what will qualify as reasonable grounds, and this raises issues of what sort of approach the Home Office will take. While this may be mitigated by the publication of guidance in due course, as of right now the circumstances regarding discretionary EUSS applications are murky at best, and the cut-off date in June 2021 is not far down the road.
The Skilled Worker route requirements
Another potential instance of a lack of clarity in this statement of changes relates to the new Skilled Worker route, where massive changes have been introduced. These changes are on the whole very positive, for example removing the current 12 month ‘cooling off’ period and six year maximum stay cap, as well as scrapping the monthly cap on sponsored workers and the RLMT. However there is the risk of uncertainty with some of these changes – for example, the requirement for a role to be genuine still remains, but in the absence of a formal RLMT this would appear to have been replaced with more informal arrangements, with potentially more room for discretion on the part of the decision-maker. It will be particularly interesting to see if this approach is taken to other aspects of the new Skilled Worker route.
Furthermore, in light of the two large economic shocks in COVID-19 and Brexit, it can be argued that these changes do not go far enough to counteract the damage to the UK’s labour market. As was explored above, the IPPR and MAC report are clear in their belief that a labour shortage in the future is likely, especially in low-skilled roles and in sectors such as social care. While lowering the skill level required for a role from RQF 6 to RQF 3 is a good step towards mitigating these potential shortages, a close eye should be kept on how well the UK economy can cope without free movement, and whether any more concessions will need to be made in this area of the new immigration system.
COVID-19
Ironically, perhaps one of the most surprising things about this statement of changes is what is not in it: in the entire 514 page document there is not a single mention of COVID-19. In the Immigration Rules, paragraph 39E has been amended to allow caseworkers to disregard overstaying from 24 January 2020 to 31 August 2020, but this is already outdated and falls short of what is needed: we are currently in a second wave of COVID-19 infections and this kind of concession is needed just as much now as it was in the Spring.
While there is guidance for COVID-19 in various places, this seems like a missed opportunity to gather and condense all of the concessions and future considerations into one easily accessible document. The COVID-19 pandemic is far from over and will have an impact on the UK immigration system for the foreseeable future, so it would seem to be sensible to include substantive information on it in important policy documents. We shall see in due course the approach that the Home Office will take to further COVID-19 concessions, however this initial response is not promising and raises issues over how seriously the Home Office is considering the continued impact of the pandemic on migrants.
As shown, there are certainly some quite major shortcomings in this most important of statements, with some vital parts of the new system showing a less compassionate and flexible approach, in particular regarding validity and criminality. There is also a worrying lack of information with regards to other sections, such as EUSS discretionary applications and COVID-19, which will surely lead to issues of clarity in the future. Despite these problems, this statement of changes signifies a welcome focus on simplifying many areas of the UK’s immigration system and widening the scope of the rules to allow for more applicants, which is greatly welcomed.