Scattered throughout the latest statement of changes like needles in a 186-page haystack are three COVID-19 concessions that previously only appeared in Home Office guidance. They will now form part of the Immigration Rules.
In immigration law, a concession is a policy operated by the Home Office that is more generous to migrants than the Immigration Rules or other legislation. Such concessions tend to be created in response to exceptional circumstances, like the COVID-19 pandemic, or which are only expected to affect a small group of people for a limited time, as a way of remedying unintentionally harsh effects produced by the Rules without committing to a permanent amendment.
Anyone hoping to see a comprehensive incorporation of all the various COVID-related concessions will be disappointed. In particular, the Appendix FM financial requirement concessions appear doomed to remain, in their muddled state, in guidance only.
Tier 1 (Entrepreneur)
The Tier 1 (Entrepreneur) visa route closed to new applicants in 2019 but those who already had the visa can still apply to extend it or for settlement. The latest version of the Entrepreneur guidance contains several COVID concessions for this cohort. These include:
- time spent by employees on furlough counts towards the job creation requirement
- applicants can combine multiple jobs to meet the job creation requirement
- applicants whose businesses have created two qualifying jobs, but who have been unable to employ the relevant employees for the required 12 months because of COVID, can temporarily extend their visa
None of the above is actually being incorporated into the Rules. What we are getting is a new rule for those applying for settlement after relying on the last of the concessions above. They will now have to meet a second job creation requirement in order to qualify for settlement, over and above the one that normally applies.
The change is being made to Table 6 of Appendix A, which contains the main requirements for settlement in this route. The relevant section will now read (changes in italics):
|The applicant has:
(a) established a new business or businesses that has or have created the equivalent of at least 2 new full time jobs for settled workers, or
(b) taken over or invested in an existing business or businesses and their services or investment have resulted in a net increase in the employment provided by the business or businesses for settled workers by creating the equivalent of at least 2 new full time jobs for settled workers.
The jobs must have existed for at least 12 months during the applicant’s most recent grant of leave or, where that leave was granted less than 12 months ago, for at least the 12 months immediately before the date of application.
In respect of an applicant who was granted a COVID-19 related extension of leave, the applicant must have:
(i) created two jobs meeting the criteria in (a) or (b) for at least the 12-month period referred to above; and
(ii) created at least a further two jobs meeting the criteria in (a) or (b) that have been in existence for at least 12 months by the date of application (these jobs can be the same as (i) providing they meet the requirement of existing for at least a further 12 months).
In other words, anyone who extended their Entrepreneur visa by relying on this concession will have to show that they have either created four jobs that have each lasted for 12 months, or two jobs that have lasted for 24 months, when they apply to settle.
As a result, the COVID concession for Entrepreneurs will not be a “freebie” with respect to the job creation requirement, but rather a loan. The Home Office will extend your visa without you meeting the requirement, but you must settle the debt when you come looking for indefinite leave to remain.
Although this was already in the guidance, it is still likely to take some applicants by surprise, particularly as there is no mention of this condition in the gov.uk overview of COVID concessions.
The accelerated settlement provisions in Table 6 are also being amended so that more than two “job creation” jobs can be included in the ten jobs needed to qualify for settlement after three years.
These changes take effect from 6 October 2021 but with no provisions for applications to be decided under the old rules if a settlement application is lodged before this date. This is likely because the changes reflect existing guidance.
EU Settlement Scheme
Appendix EU is being amended to reflect concessions that extend the range of circumstances in which continuous residence is not deemed to be broken as a result of excessive absences from the UK. Those concessions are currently in Home Office guidance. They are important because excessive absences can leave EU citizens with pre-settled status unable to upgrade to full settled status.
Because the vast majority of the EU Settlement Scheme rules are inexplicably found in the cursed decrepit wasteland that is “Annex 1 – Definitions“, where hopes and dreams perish beneath impenetrable columns of what can only very loosely be characterised as “sentences”, the relevant amendments are to the definition of “continuous qualifying period”. Specifically, sub-paragraph b(i), which specifies circumstances in which continuity of residence will not be broken by absences of over 6 months in any 12-month period.
There are five relevant new or improved provisions in this sub-paragraph, which broadly reflect the existing guidance. As before, we’ll put new text in italics.
The first provision (aa) amends the existing rule allowing absences of between 6 and 12 months for an “important reason (such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting, or because of COVID-19)”.
The second provision (bb) incorporates the guidance-dwelling concession that permits absences of 6-12 months if the applicant intended to be absent for only six months but exceeded this “because of COVID-19“.
As is generally the case with Appendix EU, the drafting appears designed to benefit the pockets, if not the sanity, of immigration lawyers over the needs of either applicants or the civil servants who decide these applications. I can see no other reason for the wording of the third provision:
(cc) (following a period of absence under sub-paragraph (b)(i)(aa) above because of COVID-19 or under sub-paragraph (b)(i)(bb) above) a second period of absence which did not exceed 12 months and was for an important reason (such as described in sub-paragraph (b)(i)(aa) above) which, save for caring for someone with a serious illness, was not because of COVID-19; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies;
In English, this roughly translates as: where you had a COVID-related absence of 6-12 months, you are allowed a second absence of up to 12 months for an “important reason” unrelated to COVID or to care for someone seriously ill with COVID. Only six months of this second absence can be counted towards your five-year residence period for getting settled status, though.
The fourth provision is a mirror of the third, allowing the same thing the other way round:
(dd) (following a period of absence under sub-paragraph (b)(i)(aa) above which, save for caring for someone with a serious illness, was not because of COVID-19) either a second period of absence which did not exceed 12 months and was for an important reason, where that reason was because of COVID-19, or a period of absence under sub-paragraph (b)(i)(bb) above; where this is the case, the period of absence under this sub-paragraph exceeding six months will not count towards any period of residence in the UK and Islands on which the person relies;
In English: where you had an absence of 6-12 months that was for an important reason unrelated to COVID or to care for somebody seriously ill with COVID, you are then allowed a second absence of 6-12 months which was COVID-related. Again, only six months of this second absence positively counts towards your UK residence period.
Finally, the fifth provision allows:
(ee) a period of absence under sub-paragraph (b)(i)(aa), (b)(i)(bb), (b)(i)(cc) or (b)(i)(dd) above which exceeded 12 months because COVID-19 meant that the person was prevented from, or advised against, returning earlier; where this is the case, the period of absence under this sub-paragraph exceeding 12 months will not count towards any period of residence in the UK and Islands on which the person relies;
Translation: you are also allowed to be out of the UK for more than 12 months in one go, but only if COVID meant you couldn’t come back or were advised against — rather than if you just chose not to come back.
These changes take effect from 6 October 2021, with no provisions for applications to be considered under the old rules if lodged earlier. This is likely because the changes reflect existing guidance.
Whoever drafted Appendix EU should be made to read it and shot pic.twitter.com/GimLmG3wPb
— Greg Ó Ceallaigh (@gregoceallaigh) September 16, 2021
Skilled Worker and Sportsperson
In what appears to be an entirely new concession, the settlement requirements for both the Skilled Worker and Sportsperson routes are being amended. It takes five years to qualify for settlement in these routes. The rules will now allow applicants to count the time they had permission in any other route while they were waiting for a decision on their Skilled Worker/Sportsperson application towards these five years. This is provided that said application:
(i) was for permission to stay; and
(ii) was made between 24 January 2020 and 30 June 2021 (inclusive); and
(iii) was supported on the date of application by a certificate of sponsorship assigned by a licensed sponsor; and
(iv) was granted.
It was always possible to include time spent waiting for a decision on an in-time application that was then granted where the person was extending their permission as a Skilled Worker or Sportsperson. The significance of this change is that it allows applicants to count time waiting for a decision on an ultimately-successful application while they were in their UK with permission in a different route entirely.
The existing T2 Sportsperson route is being replaced by the International Sportsperson route, so the rule “change” is technically a brand new rule in a brand new route, but the concession will cover people on the old version of the route as well.
The new International Sportsperson route goes live at 9am on 11 October 2021, while the Skilled Worker changes will be in force from 6 October. In both cases, applications made earlier will be decided under the old rules, so if possible people who want to rely on the new concessions should wait until after they are in force.
Originally published on FreeMovement