New Immigration Rules have been laid before Parliament by way of the ‘Statement of Changes in Immigration Rules: HC 1534’, the full version of which can be found here. The majority of new provisions come into force on 08 November 2018.Earlier this year, the Home Secretary, Sajid Javid, stated that he wanted to introduce a ‘fairer, more compassionate’ immigration system, allowing Home Office caseworker’s greater freedom to use their common sense. For those who have experienced the UK’s immigration system, you will be aware that this represents a significant change in tack. During the summer’s Joint Human Rights Select Committee, Sajid Javid heard of how individuals of the Windrush generation had been wrongly accused of living in the UK without leave due to lack of common sense being used by caseworkers when dealing with individual applications.
A number of the main changes within October’s Statement of Changes focuses on the digitalisation of applications and documents in support. In an announcement earlier this year, Caroline Nokes, Immigration Minister, awarded a £91m contract to Sopra Steria, to deliver a digital visa and immigration service in the UK. This was due to commence later this month but it is now likely that this will be rolled out in November 2018.
Applications
The digitalisation changes mean that Applicants will no longer need to submit passport-sized photographs with applications and further their supporting documents will be able to be scanned and submitted electronically, allowing Applicants to retain their original documentation. This will not yet apply to passports but the Statement of Changes does set out that the Secretary of State will return an Applicant’s passport or ID card while the application is outstanding unless it is considered ‘necessary to retain it’. Applicants do need to be mindful that whilst having their passport returned, leaving the UK whilst an application is pending will result in the application being treated as withdrawn.
Caseworkers will be able to exercise their discretion (read: common sense) when dealing with invalid applications. For example, they will be able to allow Applicants time to rectify a mistake within a specified timescale and consider an invalid application as being valid. For example, where an Applicant makes an application on the incorrect form, the caseworker will have discretion to consider the application as a valid application, as if it had been submitted on the correct form. This is a welcome change.
It is welcome news that applications for fee waivers in respect of Home Office application fees will be made online. The fee waiver application will be made first, with the substantive application to be made within 10 days of the fee waiver decision. This will effectively serve to protect an Applicant’s immigration status until a decision is made on the substantive application.
Points Based System
Under proposed changes to the Points Based System of the Immigration Rules, further common sense is apparent. Appendix FM currently provides for caseworkers to grant an application if missing information is verifiable from other documents provided in the application or elsewhere, this discretion has now been extended to the Points Based System. Currently, caseworkers only have discretion to request documents if they form a sequence of documents and part of the sequence is missing. Caseworkers will soon be permitted to request missing evidence, even if it has not been provided at all with the initial application.
EU Settlement Scheme
The second phase of the private testing of the EU Settlement Scheme has been announced and will run from 01 November 2018 to 21 December 2018, testing the full application process from start to end. A number of Greater Manchester NHS Trusts and North West universities have been selected to take part from 01 November 2018, extending to staff in the higher education sector, some vulnerable individuals supported by 5 local authorities and 7 civil society organisation in England from 15 November 2018 and staff in health and social care sectors across the UK from 29 November 2018.
The Statement of Changes also introduces a right to administrative review for those whose settled status application is refused on the basis of failing to meet the eligibility criteria and for those granted pre-settled status instead of settled status. The administrative review process attached to the EU Settlement Scheme is more flexible than the current Administrative Review Scheme, with an extended deadline to apply, consideration of documents extended to those not originally available to the decision-maker at the time of the decision on the application and the power to request further documents from an Applicant as part of the process.
It will remain to be seen how this new ‘common sense’ approach works but for now, all in all, it appears positive steps are being taken by the Home Secretary to introduce a ‘fairer, more compassionate’ UK immigration system.
The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.