As a direct access immigration barrister practising across England and having been heavily involved in paragraph 322 5 litigation it was a pleasant(ish) surprise to see the new Statement of Changes to the Immigration Rules HC1534 that were published recently.
As those who are perhaps not fully aware of what “State of Changes to the Immigration Rules” actually means – it is the manner in which, essentially, the Secretary of State introduces changes to the Immigration Rules, they are done this way as the Immigration Rules occupy a strange place in our law, they are neither primary legislation (think Nationality, Immigration and Asylum Act 2002) nor secondary legislation (such Statutory Instruments), however, while they do not fit “conventionally” into our legal framework and there have been numerous challenges to them, they amount to law (see number of failed challenges to their lawfulness). The Statement of Changes vehicle enables the Secretary of State to publish the changes which become “law” if not challenged within a short period of time. I am not aware of any such challenges being made prior to the implementation.
However, what does these new changes mean and why are the potentially positive.
They are as are many changes detailed and relate to the ever increasing Immigration Rules, I have therefore decided to extract some of the more positive factors – perhaps they are sign of a change away from the hostile nature that immigration clients find themselves in, having written this, I would not hold one’s breath nor advise anyone to bet on it. Especially with Brexit coming up.
As an aside I have written on the uncertainty of Brexit on those EU citizens living, working and contributing to life in the United Kingdom and will return to this subject in the near future, having heard some disturbing rumours as to whether individuals are able to make applications for a permanent residence card, something that merits further investigation.
Anyway back to HC1534 what are the benefits:
More flexibility introduced to Part 6A of the Immigration Rules. Part 6A relates to the Points Based System, which has traditionally created a vast number of problems due to its lack of flexibility.
In future, given the provision of the new changes caseworkers there is a greater amount of evidential flexibility, previously this was strictly limited (see paragraph 245AA of the Immigration Rules for the limits on what has been called “evidential flexibility”), now caseworkers can request whatever document has been left out. They are also able to ask for further evidence as often as required to make the decision and most importantly they are able to allow an application even where documents are omitted or are in the wrong format, previously a missing telephone number or address could doom an entire application and family to be forced to leave the United Kingdom.
In my view this amounts to a huge shift in the manner in which applications were treated under the PBS – I can also foresee a growth in the number of judicial review applications – particularly if the decision maker has not asked for documents, only asked once or has refused an application where there is sufficient material to show that the Applicant meets all the substantive requirements of the Immigration Rule.
Additionally, copies are now going to be accepted in certain circumstances. This again is a huge shift, I have had numerous clients over many years who are frightened about making applications where there is a real risk that the HO will hold onto them for years – a fear which has been born out by those who are caught up in the paragraph 322 5 imbroglio.
Though it will not affect many those individuals who were previously in Calais Migrant camp will be allowed to apply for leave to remain in the United Kingdom provided that they were transferred to the UK between 17 October 2016 and 13 July 2017.
On a more general note:
There is also a move towards making applications on line. Applications made at the premium service centres will be on line, applications in future can be submitted on hard copy (paper) if they are made by post – this amends paragraph 34 of the Immigration Rules which covers valid applications.
On a note that I find a little more worrying:
The statement of changes makes reference to an extension of the EU settlement scheme and that those who are refused will be entitled to Administrative Review. This highlights one of my concerns, which I raised earlier that EU nationals rights are being cut down. Previously under the Immigration (EEA) Regulations 2006, 2016 there was a right of appeal this appears to be disappearing.
What is disturbing is that while appeals have enjoyed good prospects statistically of success over many years – those who fall under the purview of Administrative Review are often just delaying the inevitable. I think I have seen 1 case where the AR was successful and a few where they have abandoned the original refusal only to dream up another reason for refusing the application. As I have mentioned I will write more on this issue shortly.
Should you or a member of your family have any concerns as to the changes or have any immigration questions please do not hesitate to get in touch with me through my team and I would be delighted to meet you and hope to be able to help you.
Paul Turner is a highly regarded direct access immigration barrister who is the Head of Chambers of Imperium Chambers, 2 Selkirk Road, London SW17 0ES and who is entitled to represent the public in immigration matters. Feel free to call on 020 7 242 3488 or email at email@example.com