12 November 2020
This briefing was produced by Jennifer Stevens (Partner) and Milo Grounds (Paralegal) of Laura Devine Immigration.
On 10 September 2020, the government published the first Statement of Changes to the Immigration Rules since the announcement of the UK’s new immigration system, due to come into effect on 1 January 2021. This article analyses the main changes that are being introduced and comments on the present and future implications of these changes.
The Student and Child Student routes
The headline change is the introduction on 5 October 2020 of the Student and Child Student routes (together the Student routes) as a replacement for the current Tier 4 (General) and Tier 4 (Child) categories. It has been stated that those currently on Tier 4 visas will be able to extend their visas and bring dependants to the UK under the new route, provided they continue to meet all the mandatory requirements.
The introduction of the new Student route represents the first step in the attempted simplification of the UK immigration application process; accompanying the Student routes will be three new appendices (Appendix ATAS, Appendix English Language, and Appendix Finance) which are intended to reduce the more scattered nature of the current Tier 4 (General) requirements in the Immigration Rules.
In terms of the main differences between the Student routes and the previous Tier 4 routes, firstly, the new routes shall apply equally to both EEA nationals and non-EEA nationals, and both groups will be required to meet the same conditions. EEA nationals will be subject to the new UK immigration system if they are not resident in the UK by 11pm on 31 December 2020.
However, the new route does not simply represent an expansion of scope: it will also alter some substantive and evidentiary requirements of the previous Tier 4 category. For example, where an individual is applying to stay in the UK on a Student visa and has been in the UK for longer than one year on their current visa, or are applying for leave on a Foundation Programme/as a Student Union Sabbatical Officer, they will not be required to provide evidence of maintenance funds.
Furthermore, where a student’s higher education provider has a track record of compliance, the student will not need to routinely provide evidence of the academic qualifications which were used to obtain sponsorship, and the eight-year time limit on studying postgraduate courses has been removed. The maintenance and academic qualification alterations are clear attempts to remove some unnecessary and burdensome evidentiary requirements from the application process.
There have also been important changes with regards to the validity of submitted applications. Under the new Student routes, under certain circumstances an application will be rejected as invalid, rather than refused on grounds of eligibility. This may have important consequences for some applicants, such as those relying on Section 3C leave – an application rejection may in this case interrupt their leave and make them an overstayer. These circumstances include where the applicant:
- does not provide a Confirmation of Acceptance for Studies reference number that was issued prior to the date of application;
- is in the UK on immigration bail or with leave:
- as a visitor;
- as a short-term student;
- as a parent of a Child Student;
- as a seasonal worker;
- as a domestic worker in a Private Household;
- outside the Immigration Rules; or
- does not provide consent from a government or international sponsorship agency where this is required.
Regarding the interaction of the new Student routes with other UK immigration categories, there will be more opportunities to switch into this route from inside the UK as compared with the previous Tier 4 category. Whereas under the old rules switching was only available to those on Tier 2 visas, under the new Student routes applicants can now switch from any other UK immigration route – except where they fall into one of the categories listed in the preceding paragraph.
General changes to the Immigration Rules
Alongside the more specific changes introduced via the new Student routes, the Statement of Changes also outlined new rules on English language and Finance. Whilst these appendices currently only apply to the Student routes, they are intended to eventually apply more widely across the new immigration system – again with the intention of simplifying the existing rules. In terms of English language, it is proposed that an applicant will only need to prove the required level of English language once, and that Ireland and Malta will be added to the majority English language speaking country list. Applicants will also now be able to rely on a GCSE/A-Level or Scottish Highers in English while at school in the UK.
Under the new Appendix Finance, there will be greater flexibility in terms of when and how this requirement can be fulfilled. For example, applicants extending their stay on their current route will not be required to prove sufficient maintenance again if they have been supporting themselves in the UK for more than a year. Applicants will now also be able to rely on electronic bank statements and a wider range of accounts in general: the defining factor here will be whether the funds are instantly available, meaning funds in pensions and investment accounts will be accepted, while shares and bonds will not be. This should result in a more sensible and pragmatic approach to a complicated part of the Immigration Rules.
Analysis of the changes and future implications
In many ways, almost as a reflection of the new immigration system, this Statement of Changes does not represent a revolution as much as an evolution. While there have been some substantive changes when comparing the new Student routes with the old Tier 4 (General) category, the main thrust of the alterations are procedural, and aimed at simplifying the Immigration Rules and consolidating the requirements into fewer sections. This is a welcome attempt, as navigating the different appendices and sections of the Immigration Rules can be a daunting task for the unfamiliar, however this should be done with caution: there is certainly danger in simplifying complex rules, as this may leave out important information and context.
Some of the most welcome alterations introduced by this Statement of Changes are those which ease the administrative burden of applications, such as accepting electronic bank statements and introducing exceptions to the English language and Finance requirements. Opening up the ability of applicants to switch into the new Student routes from other categories is also a sensible and much needed change.
However, there is also evidence of a stricter approach in some areas – particularly in the evaluation of validity of an application under the new Student routes: it will be interesting to see if this approach is reproduced in other routes, as this could have a large impact on the availability of Administrative Review for many applicants, as well as on those whose stay in the UK depends on continuous residence.
In being the first Statement of Changes since the announcement of the new UK immigration system, this is an important indication of the direction in which the Home Office wants to move. Perhaps due to the anticipation of a deluge of new applications from EEA nationals, this was a pragmatic Statement of Changes. However, it remains to be seen whether this will fully translate in future to other new routes such as the Skilled Worker route, which will surely be tougher to tackle in this way.