Despite COVID-19, Home Office introduces important changes to UK Immigration Rules

At a time when you would have thought the Home Office would be too busy dealing with the practicalities of managing UK immigration applications during a global pandemic, in May it found time to release a Statement of Changes to the Immigration Rules. The Statement makes changes to a mixed bag of categories (unrelated to COVID-19), most of which took effect from 4 June 2020. 

Here we will go through some of the main changes affecting both business and personal UK immigration categories.

Overseas representative of a business (also known as sole representatives)

The main category to face substantive changes is the category allowing seniors employees from an overseas business to move to the UK to set up a branch or subsidiary. This category faces a tightening of provisions which we can only assume is linked to the closure of the Tier 1 (Entrepreneur) category and likely corresponding increase in the use of the sole representative category, given the inadequacies of the Start-up and Innovator categories for established businesses. 

For applications submitted from 4 June 2020 there is now a genuineness requirement, meaning all applicants must genuinely satisfy all the requirements and must not be setting up a branch or subsidiary in the UK solely for the purpose of facilitating their entry and stay. Historically the introduction of such provisions has been due to suspected abuse of the category. It does, however, indicate a worrying move to a more subjective approach, providing caseworkers with the scope to refuse applications even where they meet prevailing criteria with specified evidence, simply because they do not consider the applicant to be genuine. 

Applicants are now required to show their ‘skills, experience and knowledge of the business’. How that is to be satisfied remains open to interpretation. 

Finally, and significantly, the Rules have been changed to limit the types of employees eligible under this category. Previously where applicants were majority shareholders of the business, applications under this category would fall for refusal. From 4 June 2020, the Home Office has stated that applicants cannot apply as a sole representative if they ‘have a majority stake in, or otherwise own or control, that overseas business, whether that ownership or control is by means of a shareholding, partnership agreement, sole proprietorship or any other arrangement’. This new provision therefore places a further limit on those with a majority stake in the business being eligible under this category, with caseworkers having the power to apply discretion when considering applications.

The sole representative category has been a useful option for an overseas business looking to set up an existence in the UK, particularly following the closure of the Tier 1 (Entrepreneur) category. The changes made to the Immigration Rules mean applicants will have to ensure applications are fully prepared and evidenced so they do not fall foul of subjective requirements, causing issues for future UK immigration applications and growth of a business in the UK. 

Start-up and Innovator

As with the expansion of subjective criteria for sole representatives seeking entry to the UK, applicants under the Start-up and Innovator categories may now face further requests for information or evidence following the grant of an endorsement, if the Home Office has concerns about whether the endorsement has been issued appropriately. Such a request can also be made to the endorsing body while considering an application. Applications can be refused where the Home Office is not satisfied that the endorsement criteria have been met. The additional verification checks seem to undermine the concept of granting authority to third parties to review candidates and issue endorsements. It also puts applicants at risk of refusal even where they have been awarded an endorsement by a Home Office approved body.

A Home Office favourite for individual business categories, the ‘viability’ criteria has been enhanced to add that ‘the applicant’s business plan is realistic and achievable based on the applicant’s available resources’. This is somewhat concerning as it can be interpreted as providing Home Office caseworkers with further discretion when assessing applications and applying a pre-emptive assessment of the likely success of a business, with no or limited knowledge or experience in the relevant business area. 

On a positive note, however, individuals who have been granted leave under these categories are now able to change business ventures providing the new venture demonstrates that it meets the relevant endorsement criteria of the endorsing body. Thankfully there is no need to apply for and obtain a new endorsement and applicants will not be prevented from relying on the ‘same business’ criteria for their subsequent Innovator application. This is particularly relevant to those looking to switch from the Start-up to Innovator visa category as they will not need to meet the funding criteria of £50,000 again under the ‘new business’ option.

Another positive change is that higher education providers can now be endorsing bodies for Innovators. Previously this was only possible for Start-up applicants.

Finally the Rules now state that where an applicant is not the sole founder, they must be an ‘instrumental member’ of the founding team and rely on their own business plan, for which they must ‘have generated the ideas in the plan or made a significant contributions to those ideas’. Additionally, the applicant must be responsible for executing the plan. These additions indicate that applicants will have to show that they have been part of the senior team of the business from the outset.

Appendix EU - European Union Settlement Scheme (EUSS)

While Appendix EU remains somewhat convoluted, the Home Office has introduced positive changes to bring three different groups within the remit of the EUSS. Firstly, from 24 August 2020, all family members of Northern Irish nationals will be brought under the scope of the EUSS, enabling them to  apply for UK immigration status on the same terms as family members of Irish citizens. These provisions will apply to family members even where the Northern Irish national has subsequently obtained British or Irish citizenship.

Secondly, from 4 June 2020, the scope for victims of domestic violence or abuse to apply for UK immigration status under the EUSS has been extended to include any family member of an EEA national (spouse, civil partner, durable partner, child, dependent parent or dependent relative).  Previously these provisions were only available to former spouses or civil partners of EEA nationals whose marriage/civil partnership had been legally terminated and the abuse occurred during the course of their marriage/partnership.

Lastly, and consistently with the Free Movement Directive, all applicable family members of EEA nationals will be eligible to apply for status under the EUSS, following the legal termination of the marriage or civil partnership of an EEA citizen. As with the EEA Regulations, this is subject to the marriage or civil partnership having lasted for at least three years prior to the start of termination proceedings and the couple having lived in the UK for at least one year while it lasted.

Appendix FM - Family members of British citizens

A welcome and somewhat overdue change has been made to bring extension applications as a family member of a British citizen in line with entry clearance and settlement applications. The rules now indicate that if the applicant has been sentenced to a period of imprisonment of more than 12 months but less than 4 years, an application should not be refused on this basis that 10 years have passed since the end of the sentence.

Further details of these Rule changes can be found here. 

Clearly the Home Office is working in the background to prepare for a post-Brexit UK and to deal with the fallout of COVID-19. The Home Secretary has also made clear that plans for a new UK immigration system are still very much progressing, so we wait to see what further changes are to come.

For more information on these changes, please contact Malini Skandachanmugarasan, Anita de Atouguia or any member of the Doyle Clayton Business Immigration team.