Tier 1 Investors - Changes

The Statement of Changes in Immigration Rules HC 693, found here, made changes to the Tier 1 (Investor) Rules. The following changes took effect from 06 November 2014.

The current £1 million minimum investment threshold has been raised to £2 million.

The full investment sum must be invested in prescribed forms of investments (share or loan capital in active and trading UK companies, or UK Government bonds), rather than 75% of the sum.

The requirement that the migrant’s investment must be “topped up” if its market value falls is being removed; instead Tier 1 (Investor) Migrants will only need to purchase new qualifying investments if they sell part of their portfolios and need to replace them in order to maintain the investment threshold.

The provision under which the required investment sum can be sourced as a loan was removed.

Transitional arrangements are being applied, so that Tier 1 (Investor) Migrants who have already entered the route before these changes were introduced will not be subject to these changes when they apply for extensions or for indefinite leave to remain.

Entry Clearance Officers and UK Visas & Immigration caseworkers are being empowered to refuse a Tier 1 (Investor) application if they have reasonable grounds to believe that:

- the applicant is not in control of the investment funds;
- the funds were obtained unlawfully (or by means which would be unlawful if they happened in the UK); or
- the character, conduct or associations of a party providing the funds mean that approving the application is not conducive to the public good.

Constant changes to other categories of visas, often to the detriment of the migrant, has made the Tier 1 Investor route more attractive to those with the required resources. This results in an increase of investor applicants and a corresponding increase in the scrutiny of these applications by the Home Office. Expert advice in this area is becoming more important, please contact us for more information.

Waiving Home Office application fees

The SSHD’s approach to waiving human rights application fees was limited to those who were literally destitute. This presented an obstacle to people who were overstayers, with limited financial support from family or friends, to applying for leave to remain in the UK based on their Human Rights because they were not considered destitute.

Those who were not destitute but did not have sufficient financial resources, had to find some way to pay the relevant fees, which often meant getting themselves into debt. A case called R (Carter) v Secretary of State for the Home Department, found here, disagreed with this approach.

The court decided that if the entitlement to getting a fee waiver is seen by the SSHD as being limited to people who are actually destitute, that’s unlawful. If the SSHD decides not to waive the fee, then this should be challenged.

The SSHD issued the following news article today:

‘Fee waiver applications for FLR(O) and FLR (FP): information for applicants
Updated 3 December 2014

The Home Office is reviewing its fee waiver policy in light of the judgment of the Administrative Court in the case of R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin). The Home Office’s appeal to the Court of Appeal against that judgment has been withdrawn.

The previous policy has been withdrawn. Until a new policy is published, the Home Office will use interim arrangements, so that applicants who would have met the requirements under the previous policy will continue to be granted a fee waiver.

Applicants who would not have qualified for a fee waiver under the previous policy will have their applications placed temporarily on hold. We expect the new policy to be published by spring 2015.

This means that:

1. Applications for a fee waiver can continue to be submitted on the Appendix 1 FLR(FP) FLR(O) form and will be considered.
2. Applications which meet the terms of the previous policy will be given a fee waiver and their FLR(O) or FLR(FP) form will go on to be considered in the usual way.
3. Applications for a fee waiver which do not meet the terms of the previous policy and which would have fallen to be refused will be on hold until the revised policy is announced. They will then be considered under the terms of the revised policy. In the meantime, applicants may write to us with any additional evidence that they meet the terms of the previous fee waiver policy.
4. Alternatively, applicants may choose to apply again on an FLR(FP) or FLR(O) form along with the appropriate fee.
5. Once the revised policy is announced we intend to review all fee waiver applications on hold based on the new policy, and any further evidence submitted, and give applicants a final decision on their application.’


This issue is likely to proceed to the Court of Appeal.






Judicial Reviews in the Upper Tribunal

The House of Lords Committee debated an amendment to the Crime and Courts Bill in order to transfer all immigration, asylum and nationality judicial reviews from the High Court to the Upper Tribunal. Currently the Upper Tribunal is limited to judicial reviews in fresh claim matters. It was agreed that the amendment should proceed. From 02 July 2012 the judicial reviews will be transferred on a staggered basis. The full debate can be read here (column 494 onwards).

Immigration Rule Changes: Overstayers

Following the changes to the family migration routes, the Immigration Rules are being changed from 01 October 2012 to restrict further applications where a migrant has over stayed by more than 28 days.

Currently some categories ‘allow’ further applications where a migrant has overstayed by more than 28 days, which is of particular benefit for those applying under the Points Based System, as well as the following additional categories:

  • all working and student routes;
  • visitors;
  • long residency;
  • discharged HM Forces;
  • UK ancestry routes.

However, from 01 October 2012 this will no longer be possible and those applying after 28 days of overstaying will be refused and will be expected to leave the UK and reapply from abroad. If there are any migrants who have overstayed and are planning to reapply, they should do so ASAP and no later than 27 September 2012.

Immigration Rule Changes: Families

The Secretary of State for the Home Department is at it again, bringing in a raft of changes to the Immigration Rules relating to family members of non-European Economic Area migrants. The SSHD wants to ensure those who come here 'can do so only on the basis of a genuine relationship, that once here they can pay their way, and that they can integrate properly into British society’. If not already, the chances come into force on 09 July 2012.

Now that we've survived the rush to help as many people as possible to apply before 09 July 2012 we can catch our breath, sit down, and update you on what is changing. We suggest you also take a seat...

Income Thresholds for Partners*, plus Children

The SSHD has placed a minimum income threshold of £18,600 for those wishing to sponsor the settlement of a partner in the UK. That threshold will increase with each additional child under the age of 18. With one child it increases to £22,400 and an additional £2,400 for each further child. What a child alone 'will cost' is not yet clear. The financial requirement does not apply to children who are British.

The SSHD will no longer accept financial support from third parties / other family members. Gifts (and therefore not loans) can be included. Savings over and above £16,000 can be used to offset any shortfalls in income.

Where the sponsor is in receipt of any of the following disability-related benefits the applicant will be exempt from the financial requirement:

- Disability Living Allowance.
- Severe Disablement Allowance.
- Industrial Injuries Disablement Benefit.
- Attendance Allowance.
- Carer’s Allowance.

The applicant still will be required to demonstrate that they will be adequately maintained and accommodated without direct recourse to public funds.

Settlement for Partners

As it currently stands, when the SSHD allows a partner can join their UK based partner, s/he is given a 2-year residence permit, and before that expires s/he can apply for permanent residence. The changes increase the initial probation period from 2-years, to 5.

For those who have lived together overseas for at least 4-years, they could currently obtain permanent residence from the outset. From 09 July 2012 s/he will be given a 5-year probation period before being eligible to apply for permanent residence.

The 5-year period will be reached in two periods of 30-months, which means two applications, and two UKBA application fees, before being eligible to apply for permanent residence (and another application, and UKBA fee).

An applicant for further leave or indefinite leave to remain on the five year family route who fails the new financial requirement will be granted further leave on the 10-year route if they qualify for it on Article 8 grounds. Those on the 10-year route will not have automatic access to public funds.

Genuine Relationships

The SSHD will publish guidance setting out a list of factors which she associates with a genuine relationship, so if your loving and long-term relationship does not meet these factors it will not be considered genuine.

Adult Overseas Dependent Relatives

Following the changes, adult dependent relatives will only be able to apply from overseas, and not (as they currently can) in-country. And they can only do so if they demonstrate that, as a result of age, illness or disability, they require a level of long-term personal care that can only be provided in the UK by their relative here and without recourse to public funds. It will also only apply to immediate family members, therefore aunts and uncles will be excluded. In changing this route the SSHD pointed out that it was ‘far too easy’ to come here under the current rules.

Life in the UK Test

From October 2013, everyone applying for permanent residence will be required to pass the Life in the UK test and present an English language speaking and listening qualification at B1 (currently A1) level or above. Those aged 65 or over, or have a physical or mental condition that prevents them from meeting this requirement, will be exempt.

Long Residency

The current rules allowing for those who have been in the UK illegally for 14-years to apply for permanent residence will be scrapped and replayed with a 20-year threshold.

Article 8

The new approach to Article 8 has already started. The rules sets out the SSHD's stricter interpretation of Article 8, Family and Private Life, under the European Convention for Human Rights. Unsurprisingly, it contradicts the interpretation of national and European courts. The SSHD asks that the courts interpret Article 8 in-line with the interpretation with the rules. However, the courts will eventual rule in many cases that the rules are incompatible with European law. Inevitably the SSHD will blame the courts for allowing people to remain in the UK, and 'winning' a PR battle.

Discretionary Leave

Discretionary leave is effectively being removed. If someone cannot meet the rules or leave outside of the rules on an exceptional basis (which appears to be so exceptional that the SSHD does not believe it will ever occur) they will be expected to leave to the UK.

Those who applied before 09 July 2012 under any of the rules, but do not qualify for the rules they applied for, will not be considered under the discretionary leave policy. Their application will instead be refused, and any further application must be made on the new rules.

Criminality

Those with criminal sentences of under 4-years will normally be deported unless (i) they have a child and it is unreasonable to expect that child to leave with the parent and the child cannot be cared for by other family members in the UK, and the child is British / lived here for the last 7 years; or (ii) they have been in the UK lawfully for at least 15 years, while in a genuine and subsisting relationship with a British / settled / refugee / HP partner, and there are unsurmountable obstacles to continuing family life with their partners overseas; or (iii) they have been continuously resident in the UK for at least the last 20 years (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin, or they are aged under 25 years and have spent at least half of their life residing continuously in the UK (excluding any period of imprisonment) and they have no social, cultural or family ties with their country of origin. Still with us?

For those with sentences over 4 years, it will only be in 'exceptional circumstances', that family life, the best interests of the child, or family life will outweigh criminality.

The new criminality requirements apply to all cases decided after 09 July 2012, therefore, it does not matter if the application was made before.

What happens if I applied before 09 July 2012?

A person who has been granted or has applied for leave based on the family rules before 09 July 2012 will remain subject to the old rules. But they will nevertheless have to meet the new Life in the UK Test rules (subject to the exemptions).

In Summary

If there is anyone still out there yet to apply, please do so. Now.



*Partner includes fianceĢ(e), proposed civil partner, spouse, civil partner, unmarried partner or same sex partner, unless otherwise stated

The Costs of an Appeal

From October 2011 the Tribunal Service will start charging fees for immigration appeals.

Fees will be set at £80 for an appeal based on the papers, and £140 for an oral hearing. However, the consensus is that, once these rates are accepted, they fees are likely to increase over time.

Where a person asks for a paper hearing, but a judge requests a oral hearing, there will be no charge. A person can apply for a refund where the opposite occurs.

The fees will be restricted to the First-tier Tribunal, so no fees are currently planned for appeals in the Upper Tribunal.

The Tribunal may award these costs against the UK Border Agency if it was clear that they should have accepted the initial decision, and the appeal could have been avoided.

Those in receipt of NASS support, child support, and who qualify for legal aid, will be exempt. Also exempt are appeals regarding deportation, removal, revocation, deprivation of citizenship, humanitarian cases, and detained cases.

Changes to Points Based System Appeals

The UK Border Agency announced that from 23 May 2011 tribunals will not be allowed to consider evidence submitted after they have made a decision to refuse a Points Based System application.

The UKBA say that it will 'stop misuse of the system' and stop 'individuals to drag out their appeal by submitting new evidence at the last minute'. However, what was slightly glossed over (or actually ignored) was their poor decision making, and their failure, up to now, to avoid the appeals (and the costs of those appeals) by simply contacting the applications for the right evidence before making a decision. The UKBA now say they will do this from 23 May 2011.

The Commencement Order is expected to apply to all appeals heard for the first time against refusals under the PBS regardless of the date that the appeal was lodged.

This seems to be an abuse of the legal certainty principle, where grounds of appeal are changed without warning or notice. Particularly, as those who received negative decisions before 23 May 2011 would not have had UKBA caseowners contact them for further information / documents before making that decision. To then deny that information during their appeal is irrational. Also...

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