New Tier one rules include concession of 13 May 2008
Under the statement of changes in the immigration rules (HC 607) announced on Monday and which is effective from 30 June 2008, the UKBA has implemented the whole of Tier one of the points based system.
This statement of changes deletes the following immigration routes:
The Highly Skilled Migrant Programme (HSMP)
Businesspersons
Investors
International Graduates Scheme
Fresh Talent: Working in Scotland
Innovators
Writers Composers and Artists
Although the concession relating to Self Employed Lawyers was never adapted into an immigration rule, paragraph 7.29 of HC607 makes it clear that this too will go.
The HSMP is replaced by the Tier one (General) sub-category. The new rules effectively make it impossible to apply under the HSMP anywhere from 30 June 2008. From that day all such applications, whether they are for entry clearance or for leave to remain in the UK, will be under Tier one general. The Businesspersons’ route is replaced by the Entrepreneur sub-category of Tier one and the old investors’ route by the new Investors sub-category. The International Graduates Scheme and that known as Fresh Talent: Working in Scotland are replaced by the Tier one (Post-Study Work) category.
Innovators, Self-Employed Lawyers and Writers and Artists will no longer exist as immigration routes, either in the immigration rules or as a concession. However it will be open to anyone who has leave to remain in one of the routes which are to be deleted to apply for indefinite leave to remain if they are able to demonstrate that they are eligible for leave of this kind as the relevant rules are to be kept (i.e. rule 209 – indefinite leave to remain for people established in business; rule 210G – innovators, 230 – investors and 238 – writers and artists).
This accords with the UKBA’s announcement on 14 April 2008 that people with leave to remain as Self-Employed Lawyers, Writers and Artists and Innovators but whose leave to remain would expire before they were eligible to apply for settlement could apply before the new rules were implemented for further leave to remain in the existing categories. If they succeeded they would be granted enough leave to remain to make them eligible to apply for settlement.
As well as completing the implementation of Tier one of its points based system HC 607 includes a new rule 320 (7C). This is the first actualisation within the immigration rules of one of the two concessions made by the government in respect of the re-entry bans announced in the controversial new general grounds for refusal which were included in HC 321. The new rule covers the concession Liam Byrne MP announced in the House of Commons on 13 May 2008. It states:
320(7C)
Paragraph 320(7B) shall not apply in the following circumstances:
(a) where the applicant is applying as:
(i) a spouse, civil partner or unmarried or same-sex partner under
paragraphs 281 or 295A,
(ii) a fiancé(e) or proposed civil partner under paragraph 290,
(iii) a parent, grandparent or other dependent relative under paragraph
317,
(iv) a person exercising rights of access to a child under paragraph 246,
or
(v) a spouse, civil partner, unmarried or same-sex partner of a refugee or
person with Humanitarian Protection under paragraphs 352A, 352AA,
352FA or 352FD; or
(b) where the individual was under the age of 18 at the time of his most recent
breach of the UK’s immigration laws.
This is the first time either of the two concessions has been contained in the rules. In order to discover whether this particular concession applies to them people will now not have to look at the entry clearance guidance intended for entry clearance officers – where, apart from in the parliamentary reports, was the only place it was published before.
The other concession – whereby rule 320 (7B) will not be applied to people who leave the UK before 1 October 2008, is not included in the rules. The explanatory memorandum to the notes says that this is because it’s “time limited”.
Also included in the rules is a new rule 320 (11). This states:
“320(11) where the applicant has previously contrived in a significant way to frustrate the intentions of these Rules. Guidance will be published giving examples of circumstances in which an applicant who has previously overstayed, breached a condition attached to his leave, been an Illegal Entrant or used Deception in an application for entry clearance, leave to enter or remain (whether successful or not) is likely to be considered as having contrived in a significant way to frustrate the intentions of these Rules.”
This places the exemption to the two concessions into the immigration rules, again for the first time. But when does the exemption apply? The explanatory notes state that “an example could be a person who has entered into a bogus marriage” – the same example given by Lord Bassam when the first “time limited” concession was announced. There is already guidance contained at paragraph 26.17.5 of the Entry Clearance Guidance – which suggests that there must be “aggravating factors” for the exemption to the concessions to apply.
The meaning of “having contrived in a significant way to frustrate the intentions of these Rules” continues to bedevil the general grounds for refusal element of the points based system. The reason for this is obvious enough. It is that as long as the criterion for refusal on this basis remains unclear people will be unwilling to leave the UK on the understanding that they will be able to apply to come back.
Immigration control has to be "human rights compatible" – and the possibility of someone making an application to come back in order to rejoin their family which may be settled here is usually invoked by the UKBA to say that by requiring an immigration offender to leave the UK they are not interfering with his or her right to respect for family life. Instead they are just stopping the offender from “jumping the queue” for a visa, and his or her family life won’t suffer much interference if the visa application they can make on their return succeeds.
But if access to the queue is prevented anyway – by the application say of rule 320 (11) – the interference with family life is absolute. This makes it much more difficult to justify the decision to require the person to leave.
