A summary of recent immigration changes Spring 2015

Transcription

1 6 May 2015 A summary of recent immigration changes Spring 2015 Contents Immigration health surcharge 2 Biometric Residence Permits (BRPs) 4 Changing course at the same institution 7 Visitors 7 Short-term students 9 Academic Technology Approval Scheme (ATAS) 11 Administrative review 12 Secure English Language Tests (SELTs) 14 TB Screening 15 General Grounds for refusal 15

2 UKCISA Special Briefing May Introduction This briefing sets out the changes to the Immigration Rules, between February and April 2015, of relevance to those studying (or coming to study) in the UK. The majority of these changes have been implemented by Statement of Changes in Immigration Rules, HC 1025 (26 February 2015). A consolidated version of the Immigration Rules incorporating changes to administrative review, is available at: Reference-material-for-advisers/ A consolidated version of the Immigration Rules for short-term students, is available at: Info-for-universities-colleges--schools/Info--guidance/ Tier-4-Compliance/2015/#2-March:-Short-termstudent-route Many more sections of the Immigration Act 2014 have been brought in to force and there have been several substantive updates to the Home Office s guidance on Tier 4 for sponsors students and caseworkers. Immigration health surcharge The Immigration (Health Charge) Order 2015 came into force on 6 April The power to create this legislation came from the Immigration Act The Order introduced a new immigration health surcharge which is payable by those: requiring entry clearance to come to the UK for a limited period where this permission results in leave of more than six months making leave to remain applications for any length of time Some people are exempt from paying the charge. The list of exempt categories is contained in Schedule 2 of The Immigration (Health Charge) Order These are: Entry clearance applicants applying for leave of 6 months or less Entry clearance applicants applying under the visitor immigration rules, including academic visitors who apply to come for longer than 6 months. Nationals of Australia and New Zealand, and British Overseas Territories Citizens who are resident in the Falkland Islands. Applicants applying for leave under Tier 2 (Intra- Company Transfer) Children under 18 applying for leave to remain who are looked after by a local authority (or by an authority in Northern Ireland) Applicants applying for leave to remain on the grounds of asylum or humanitarian protection or challenging removal from the UK under article 3 of the European Convention on Human Rights Applicants applying for leave to remain on the basis of being victims of human trafficking or under the destitute domestic violence concession Dependants making leave applications as dependants of people in these exempt categories or of members of HM forces or members of a force exempt from immigration control Applicants making applications on the basis of exercising a treaty right under European law and their family members Those who applied under the extended student visitor route (before 24 April 2015) and those who apply on or after 24 April 2015 for a short-term student visa to study an English language course of longer than six months will incur the health surcharge. Those who are required to pay the charge, and who make in-time leave to remain applications will still have free access to the NHS during their period of 3C leave. The health surcharge is paid as part of the immigration application, and once leave is granted applicants will have free access to the National Health Service. Tier 4 Students and their dependants will each have to pay 150 for every year of leave they are granted, in addition to the fee for their application. For all other applications the fee for the surcharge is 200 annually, unless it is for an application outside the Rules, in which case it will be this amount multiplied by 2.5. The Home Office has confirmed that it is the period of leave (which includes the additional time given before and after the course) which is chargeable rather than the length of the student s course. We have asked the Home Office to make this clear in their literature, as there are ambiguities. There is information on the UKCISA website about the application process. In this information we highlight problems with payment of the surcharge as well as offering suggested solutions or actions. Applicants will be charged for a whole year where the length of leave granted is more than six months, or half the yearly amount if the period the grant of leave they are seeking leave for is six months or less.

3 UKCISA Special Briefing May If the charge is not paid, or payment is later withdrawn by the applicant, the following table explains the consequences on leave to remain, leave to enter (where applicable), and entry clearance. Applicant fails to pay Applicant pays but, before application is granted/ refused, cancels or otherwise reclaims the amount of the charge Applicant is granted entry clearance or leave to remain, but cancels or otherwise reclaims the amount of charge Application for entry clearance or leave to remain is refused, the health surcharge fee is refunded and then the refusal found unlawful Entry clearance ECO may request and if not paid within 7 working days of request, application will be refused Application will be refused Entry clearance will be revoked ECO may request and if not paid within 10 working days of request, application will be refused Leave to enter Leave to enter will be cancelled Leave to remain HO may request and if not paid within 10 working days of request, application will be invalid Application will be refused Leave to remain will be cancelled HO may request and if not paid within 10 working days of request, application will be refused The Home Office has discretion to reduce, waive or refund all or part of a charge. There is information on the Home Office website (at: refunds) about when refunds will and won t be made. Those who apply for new leave in the UK while they have extant leave will have to pay for the health surcharge as part of their new leave to remain application. However, for any overlapping time counted twice for payment of the health surcharge, the Home Office has confirmed that the student will receive a refund of money paid in relation to the health surcharge (to the account they paid from). There is no guidance from the Home Office about when a fee will be reduced or waived, but it is likely only to happen in exceptional circumstances. Eligibility for free NHS treatment There are regulations for all four countries of the UK which impose an obligation on health authorities to establish whether a person is an overseas visitor to whom charges for health care apply, and to recover costs where a patient is chargeable. The definition of overseas visitors is contained in the various regulations and is described as a person who is not ordinarily resident in the UK. Overseas visitors in England The National Health Service Charges to Overseas Visitors Regulations for England were updated with effect from 6 April 2015, to take account of various changes brought in by the Immigration Act Section 39 of the Immigration Act 2014 changed the meaning of ordinary residence in section 175 of the National Health Service Act. Section 39 was brought into force by The Immigration Act 2014 (commencement No.5) Order 2015 and states: provisions to persons not ordinarily resident in Great Britain or persons not ordinarily resident in Northern Ireland includes (without prejudice to the generality of that reference) a reference to a) Persons who require leave to enter or remain in the United Kingdom but do not have it, and b) Persons who have leave to enter or remain in the United Kingdom for a limited period Therefore, non-eea nationals who are subject to immigration control will only satisfy the existing test for ordinary residence, if they have indefinite leave to remain in the UK. Chapter 3 of the Guidance on implementing the overseas visitor hospital charging regulations 2015 provides more information about ordinary residence. In addition to those who are ordinarily resident in the UK, the following groups are also exempt from paying charges for hospital treatment: Those who paid the immigration health surcharge as part of their current immigration application (or have made in an-time application before this leave expired and are still within their 3C leave')

4 UKCISA Special Briefing May Those who applied for their immigration permission before the 6 April, if their application would have incurred the charge, or are in the period of 3C leave Those who make an application on the basis of exercising treaty right under European Union law. The Guidance on implementing the overseas visitor hospital charging regulations 2015 for England says that such applicants will have to show a European Health Insurance Card (EHIC) to get treatment or else be able to show that they are ordinarily resident Nationals of Australia and New Zealand who have immigration permission to be in the UK British Overseas Territories citizens resident in the Falkland Islands Those who have made applications for (or been granted) asylum, humanitarian protection, temporary protection, Children who are under 18 and are looked after by a local authority (or an authority in Northern Ireland) Members of the UK s regular or reserve armed forces (or in some cases their spouse, civil partner or child) Babies aged 3 months or less, born in the UK to a parent who is exempt because the parent meets either of the first two bullet points in this list, where the baby has not left the UK since birth. The baby must therefore make an application for leave soon after it is born, as it appears he or she will only be exempt from paying charges for hospital treatment up until the age of 3 months once leave is granted. For information on how to make an application for a baby born in the UK see section of the UKCISA Manual. Chapter 5 of the Guidance on implementing the overseas visitor hospital charging regulations 2015 explains how health authorities will identify and process people who have paid, are exempt, or are waived from paying the health surcharge. Overseas visitors in Northern Ireland, Scotland and Wales The equivalent regulations for overseas visitors in Wales, Scotland and Northern Ireland have not, at the time of writing, been amended to take account of the changes brought in by the Immigration Act 2014, and therefore do not exempt those who have paid the health surcharge. However, if students can show evidence of having paid the health surcharge, they should not be charged for treatment. In all other cases, if they cannot show they are ordinarily resident in the UK they should still be exempt by virtue of the existing exemptions for students and their family members in the regulations. These exemptions are for students who study a full-time course: of six months or more in Wales or Northern Ireland, or of any duration in Scotland, or substantially funded by a UK Government department Those who meet the relevant requirements are entitled to free hospital treatment (for no more than one month after the end of the course in Scotland). Spouses, civil partners or children (up to the age of 16, or 19 if they are in full-time education), of students on such courses are also entitled to free hospital treatment. Ordinary residence is not defined in these regulations, but in case law. The National Health Service (Charges to Overseas Visitors) Regulations 2015 Guidance on implementing the overseas visitor hospital charging regulations 2015 for England The Immigration (Health Charge) Order 2015 The National Health Service (Charges to Overseas Visitors) (Amendment) (Wales) Regulations 2004, as amended The National Health Service (Charges to Overseas Visitors) (Scotland) Regulations 2014, as amended The Provision of Health Services to Persons not Ordinarily Resident Regulations (Northern Ireland) 2015, as amended Immigration Act refunds Biometric Residence Permits (BRPs) subsections 1.9.5, 1.9.8, , The Immigration (Biometric Registration) Regulations were amended in March and April 2015 to require those applying for entry clearance for a period of more than six months to apply for a biometric identity document (BID) (also known as a biometric residence permit or BRP) as part of their application. In addition to entry clearance applications made under Tier 4, applications made under the following routes will include an application for a BRP too: extended student visitor route (up until it was removed on 23 April 2015) short-term student route (if the application is decided on or after 24 April 2015 for an English language course of more than six months)

5 UKCISA Special Briefing May academic visitor route (where the length of leave granted is more than six months) The requirement to apply for a BRP, if applying for entry clearance for a period of more than six months, is being implemented in four stages, according to the country in which an applicant is applying. Pakistan was the first country affected from 18 March Applications made in the following countries were subject to the requirement to apply for a BRP on or after 14 April 2015: Armenia, Bangladesh, Bhutan, Burma, Cambodia, China, Cyprus, Denmark, Estonia, Finland, Germany, Gibraltar, Iceland, India, Indonesia, Italy, Laos, Libya, Maldives, Malta, Nepal, Netherlands, North Korea, Norway, Portugal, Republic of Ireland, Spain, Sri Lanka, Sweden, Thailand and Vietnam. Applications made in the following countries will be subject to the requirement to apply for a BRP on or after 29 May 2015: Afghanistan, Ascension Island, Australia, Bahamas, Bahrain, Barbados, Bermuda, Brunei Canada, Cayman Islands, Dominican Republic, Egypt, Falkland Islands, Fiji, Guyana, Iran, Jamaica, Japan, Malaysia, Mongolia, New Zealand, Nigeria, Oman, Papua New Guinea, Philippines, Qatar, St Helena, St Lucia, Singapore, South Korea, Taiwan, Trinidad and Tobago, United Arab Emirates, United States of America and Yemen Applications made in all remaining countries outside the UK will be affected from 31 July If the application for leave is successful, applicants will be granted a short term (30-day) vignette and given a letter of decision which sets out the conditions and length of their leave (samples of the vignette and letter can be found on our website). Applicants will then have up to 30 days to enter the UK from the date of issue of the vignette (this will be the expected date of travel as stated in the entry clearance application, or the date the visa is issued, if this is later than the expected date of travel). If applicants do not travel within these dates, they will need to apply for a replacement and pay a fee. Despite this visa being a multi-entry vignette, it is advisable for applicants not to travel outside of the UK until after they have collected their BRP. Matters to consider once inside the UK The Immigration (Biometric Registration) (Amendment) Regulations 2015 provide that the applicant must collect the BRP (once they have arrived in the UK) within the time stated in their decision letter, otherwise the BRP can be cancelled. There is no reference in the Regulations to the number of days within which an applicant must collect their BRP. The Home Office has produced an FAQ document in which they explain how they intend to operate the issuing of BRPs to those granted entry clearance. This document states that applicants will have 10 days to collect the BRP from the date they enter the UK. The Immigration (Biometric Registration) (Civil Penalty Code of Practice) Order 2015 came into force on 31 March enabling the Home Office to produce the Code of Practice about the sanctions for non-compliance with biometric registration regulations. This document outlines the various penalties imposable when the requirements in relation to a BRP are not adhered to. In order to get the BRP, the applicant will need to take their passport (containing their 30-day vignette) and their decision letter to a nominated post office in the UK. We understand they will have a choice of up to 3 post offices from where to collect it. If they wish to change their choice of post office, they should go to their new choice of post office and ask for it to be moved there and pay an additional fee to have it transferred. An information sheet which accompanies the decision letter explains what an applicant should do if they lose the decision letter before they have collected the BRP. UKCISA, along with other interested bodies, lobbied the Home Office on behalf of members who were concerned about the distribution of BRPs. The Home Office, in response to this, convened a meeting with the interested bodies. One of the other main issues discussed was about the requirement (which has appeared in some of the guidance documents) for non-eu nationals, aged under 18, who will need to collect their BRPs accompanied by a responsible adult. Following the meetings, the Home Office have now said that they are planning to: offer the option of receiving and distributing BRPs to about 50 Higher Education Institutions; ie certain institutions, with more than 1000 students annually who require a BRP. They are also considering the possibility of extending this, in a second phase, to some other institutions extend the Post Office network to include an additional 50 collection points offer the option of third party collection to all schools who are part of the Independent Schools Council. reduce the requirements on those who might act as responsible adults to accompany under 18s to collection (i.e. from FE colleges) so that, although they will need to be authorised, their personal details do not need to be shared with the students. Institutions will still have to consider carefully which tasks they are willing to take on, in terms of support and

6 UKCISA Special Briefing May collection, and how this impacts on both the student experience and resources. However, the current position is much more positive than had initially been envisaged. The Biometric Residence Permit (BRP) rollout to overseas applicants FAQ document (available in the members area of the UKCISA website) states that employers can allow employees to start work by producing the short-term vignette and decision letter. In addition, a document entitled Biometric Residence Permit (BRP) Overseas Applicant Project FAQ (sent to the sector on 16 March 2015) states students can start study before collecting the BRP as long as the vignette has not expired, but the student will need to take the BRP to the institution once they have collected it (for the institution to copy for its records). The amendments to the Regulations adds a requirement on the holder of a BRP to produce the document if required when taking an English language test for immigration purposes. Sanctions against non-compliance with biometric regulations The following is a summary of some of the provisions made by the Code of Practice about the sanctions for non-compliance with the biometric registration regulations (published March 2015). If an applicant fails, without reasonable excuse, to comply with a requirement of the regulations, the Home Office may issue them with a warning letter. This letter will highlight the reasons the applicant has failed to comply and explain what they need to do to avoid any penalties. The applicant will need to respond within 10 working days from the date the letter is served, and provide an acceptable explanation: as to why they were unable to comply and demonstrate that compliance will take place as soon as is practically possible; or that allows the Secretary of State to put into place special arrangements to enable the person to comply; or satisfactory evidence that they cannot comply. No sanction will be imposed until after the warning period has ended. Sanctions can include a civil penalty or an immigration sanction. If the Home Office has neither issued a civil penalty notice nor issued a written notice of an immigration sanction 20 working days after the beginning of the warning period, no further action will be taken in respect of the non-compliance. Non-compliance relates to various stages of the application process. These are: application requirements (eg the requirement to apply for a biometric immigration document) maintenance requirements (eg the requirement to notify the Home Office when information provided has become false or incomplete) collection requirements (eg the requirement to collect the biometric immigration document within the number of days specified in the decision letter) In the event of a breach of an application requirement, or if the applicant persistently breaches requirements of any type, the Home Office can refuse to issue a biometric immigration document. Otherwise, the following Immigration sanctions may be imposed in either of these events: rejection or refusal of an immigration application (the Home Office will refuse to issue a BRP when a person fails to comply with an application requirement without a reasonable explanation and may also reject an application for leave to enter or remain) curtailment or cancellation of leave. The guidance gives the following scenarios for when the Home Office may cancel or curtail leave: The Secretary of State may consider curtailing or cancelling any existing limited leave to enter or remain in the UK, if a person with limited leave persistently fails to comply with an application requirement. This will be the usual response when a person has failed to comply with an application requirement three times within a five-year period. If, during any five-year period, a person fails to comply with a total of any five requirements (whether application, maintenance or collection requirements) the Secretary of State may consider curtailing any existing limited leave held by that person. The Secretary of State will only consider cancelling indefinite leave in compelling circumstances, and if doing so would not contravene domestic law or the UK s international obligations. The guidance explains the circumstances when various sanctions are likely to be imposed, outlines the circumstances when the sanctions will not be imposed, and explains when an applicant has a right of appeal. Civil penalties will be applied in the following scenarios: a person has existing leave and the Secretary of State has decided not to impose an immigration sanction for that failure to comply a person has applied for a travel document but has failed to apply for a BID, or has applied but has failed to comply with the specified biometric

7 UKCISA Special Briefing May information recording processes a person is to be, or has been, granted leave as a refugee or on human rights grounds and has failed to apply for a BID imposition of an immigration sanction would be contrary to the person s rights under the European Convention on Human Rights or the Refugee Convention a person has existing indefinite leave to enter or remain in the UK The guidance continues by discussing the amount of civil penalty in each case. There is also information about when mitigating circumstances will be taken into account to reduce a payable penalty. In addition there is Sanctions Table which outlines the amount payable according to which requirement the applicant failed to comply with. The Immigration (Biometric Registration) Regulations, as amended Immigration (leave to Enter and Remain) (Amendment) Order 2015 The Immigration (Provision of Physical Data) (Amendment) Regulations 2015 Code of Practice about the sanctions for noncompliance with the biometric registration regulations (March 2007) Biometric Residence Permit (BRP) rollout to overseas applicants FAQ Biometric Residence Permits general information for overseas applicants, employers and sponsors Changing course at the same institution subsection Document 2 of the sponsor guidance for Tier 4 sponsors was updated on 6 April The guidance includes a reintroduction of the temporary concession for those changing course at their current institution. The position in law about who has to make an application in this scenario is outlined in subsection of the UKCISA Manual The concession is to allow students studying at a Higher Education Institution (HEI) to enrol on a new course at their institution without making an immigration application if they meet the criteria laid out in the guidance. These criteria (all of which must be met) are: the HEI has Tier 4 Sponsor status (i.e. is not a Probationary Sponsor) the student is currently sponsored by the HEI and has finished their last course the student s leave to stay has not yet expired the student will be studying their new course with their existing sponsor the new course begins on or before 1 November 2015 In order to take advantage of the concession, the student must make their new application for leave to remain within six weeks of enrolment on their new course, or before their leave expires, whichever is the earliest. Tier 4 of the Points Based System: Guidance for Sponsors Sponsorship Duties Document 2 Visitors subsections and The visitor route, which consisted of 15 categories, was streamlined so that from 24 April 2015 applicants coming to the UK to visit will apply in one of four categories: visitor (standard), marriage/civil partnership visitor, permitted paid engagements visitor, or transit visitor The student visitor category, which was part of the visitor route has, from 24 April 2015, been replaced by a new category called short-term study and is entirely separate from the visitor route (see below for more information). In addition, a new category of parent of a Tier 4 (child) student replaced the category in part 2 of the Rules, parent of a child at school. The changes to the Rules brought this category into part 8 of the Rules, and restrict eligibility to parents of Tier 4 (Child) students, as opposed to parents of children with other types of leave. The maximum length of leave remains the same as does the fact that the child must be under 12 and studying at an independent fee-paying day school. The child must also meet the criteria for Tier 4 (Child). However, the parent must now be the sole carer of the child.

8 UKCISA Special Briefing May From 24 April 2015 paragraphs 40 56Z of the Immigration Rules were replaced with the following transitional provisions: 1. Appendix V: Immigration Rules for Visitors will apply to all visitor applications for entry clearance, leave to enter or remain decided on or after 24 April Any references in legislation or in a ministerial authorisation made under paragraph 17(4), Schedule 3 of the Equality Act 2010 to an application for entry clearance, leave to enter or remain under Part 2 of the Immigration Rules shall, in relation to any application made by a visitor on or after 24th April 2015 and unless the context otherwise requires, be read as a reference to an application for a visit visa under Appendix V: Immigration Rules for Visitors. 2. An application made under paragraphs 56K to 56M for a student visit before 24 April 2015 will be decided as if it were an application for short-term study under paragraphs A57A to A57H of these Rules. 3. An application made under paragraphs 56A to 56C for a parent of a child at school visitor before 24 April 2015 will be decided as if it were an application for a Tier 4 (child) student under paragraphs 276BT1 to 276BV1 of these Rules. 4. From 24 April 2015 the following provisions of these rules will not apply to visitors, except where specifically provided for in Appendix V: Immigration Rules for Visitors: a. Paragraph 6; b. Part 1; c. Part 9; d. Appendix 1; e. Appendix R. The last of the paragraphs listed above was inserted because, as part of the rationalisation of the rules for visitors, the visitor (standard) category formed a new Appendix V (Immigration Rules for Visitors). This appendix contains the eligibility criteria for all visitor routes as well as general grounds for refusal, which are termed Suitability Requirements for all visitors. Within this are what amounts to credibility checks. Any application for entry clearance, leave to enter or remain will be refused if an applicant fails to meet these requirements. Importantly, Appendix V contains the visa national list (at appendix 2 to Appendix V). This was previously Appendix 1 of the Rules. The list contains the same countries, and visa nationals are still required to obtain entry clearance for all categories of leave as previously. Even though, according to the implementation dates for the new visitor and short-term student routes, only applications made on or after 24 April 2015 would be affected, the transitional arrangements explicitly provide that all decisions made on or after 24 April will be based on the new rules and so will affect applications submitted (but not decided) before this date. As some of the requirements for short-term students are different from those imposed on student visitors, (as discussed below), it is unfair to subject an applicant to a set of requirements which they were unaware of when they made an application. We raised this point with the Home Office and asked whether something could be done to prevent this. However, the Home Office responded by saying that all applications decided on or after 24 April would be subject to the new Rules. Whereas under the previous rules there were numerous categories of visitor, the new rules refer to different purposes of visit within the visitor (standard) category. There are additional eligibility criteria for those coming for each particular purpose. These purposes are: visitors coming to receive private medical treatment, visitors coming to the UK to donate an organ, visitors coming under the ADS agreement, academics Child visitors have, from 24 April 2015, been separated into two categories. These are: children who are coming to the UK with no intention of studying; and children who do wish to study, and have been accepted on to a course of study The latter group form part of the new route which replaces student visitor, and will be considered under the short-term student (child) route and is discussed in more detail below. The former will be part of the visitor (standard) category albeit with some additional criteria which are the same as the current Rules on child visitors minus the provision for study. The category of academic visitor which was previously considered under the business visitor subcategory is now under the visitor (standard) route. The additional eligibility requirements for academics which appear at paragraph V 4.22 state that such visitors must be: highly qualified within their own field of expertise; and currently working in that field as an academic institution or institution of higher education overseas The Rules were previously more relaxed and stated that someone applying under this route: [must have] been working as an academic in an institution of higher education overseas or in the field of their academic expertise immediately prior to seeking entry.

9 UKCISA Special Briefing May The permitted activities for academics are listed under business specific sectors. Appendix 3 of Appendix V of the new Rules contains a list of permitted activities for all visitors (except transit visitors). This list contains a provision for volunteering which the Home Office accepts as a permitted activity, if the volunteering is incidental and: provided it lasts no more than 30 days in total and is for a charity that is registered with either the Charity Commission for England and Wales; the Charity Commission for Northern Ireland; or the Office of the Scottish Charity Regulator. The modernised guidance for short-term students also confirms the difference between volunteering (which is permitted under this route) and voluntary work (which is prohibited). This is discussed in more detail below (under 'short-term students'). The list of permitted activities includes permitted business activities and work-related training, the latter of which includes provisions for those undertaking clinical attachments or dental observer posts, PLAB and OSCE tests. Provisions for clinical attachments, dental observer posts PLAB tests and OSCE tests, were previously contained in part 3 of the Rules. The grant of leave to enter to undertake a clinical attachment or dental observer post was previously three months, with provision in the previous Rules for an extension up to six months in total (including the first grant of leave). However, from 24 April, grant of leave will be for six months in the first instance. Such applicants will, from 24 April 2015, have to confirm that they have not previously undertaken this activity in the UK. The previous Rules for applicants requiring leave to do PLAB tests stated that they would be able to apply if they have a confirmed test date or are eligible to take a test. However, from 24 April, such applicants will require confirmation of a test date in order to be eligible to apply under this route. The Rules previously allowed those in the UK to do PLAB tests to apply for six month extensions in the UK up to a total of 18 months. However, from 24 April, someone in the UK to undertake a PLAB test will only be able to seek an extension of a maximum of six months, and only if they are re-sitting the PLAB test. An extension of up to 18 months in total (including the first grant of leave), is reserved for the instances where an applicant has successfully completed a PLAB test and requires leave to undertake a clinical attachment. Incidental study is also contained in the list of permitted activities, which the Rules from 24 April say must be: (a) educational exchanges or visits with a UK state or independent school; or (b) a total of up to 30 days on: (i) recreational courses (not English language training); (ii) a short-course (which includes English language training) at an accredited institution. Whereas previously, incidental study was restricted to those who were in the UK as visitors or business visitors, it is now a permitted activity for all visitors. We asked the Home Office to confirm that incidental study can be 30 days of short courses and not just a short course. We hope confirmation of this will be contained in guidance. However, the modernised guidance on visitors has not, at the time of writing, been published. Appendix 4 lists the permitted paid engagements for PPE visitors. For those giving lectures under this route, the Rules previously stated that an applicant could do this if it does not amount to a formal teaching role, but from 24 April 2015, the Rules say that the engagement cannot amount to filling a teaching position for the host organisation. The Rules from 24 April 2015 specify that those undertaking an activity under this route who have been invited by a creative (arts or entertainment) or sports organisation, agent or broadcaster in the UK must be a professional artist, entertainer, musician or sports person. Statement of Changes in Immigration Rules HC1025 Immigration Rules, Appendix V Short-term students subsections and The short-term student route replaced the student visitor route on 24 April The Rules now incorporate the provision which was previously provided only as a concession in guidance for extended shortterm students coming for up to 11 months for English language courses. There is a new route, short-term student (child), to be used if the student is under 18 and has accepted the offer of a place on a course which is not at a state-maintained school or institution. If a child does not intend to study, they will need to apply

10 UKCISA Special Briefing May under the visitor (standard) route, will have to meet the additional eligibility requirements applicable to children, and will only be permitted to undertake incidental study for a maximum of 30 days. The provisions of the short-term student route are now in part 3 of the Rules, and those who are applying under this route are subject to Part 9 of the Rules (general grounds for refusal). We asked the Home Office to provide a definition of institution for these purposes, as this did not appear in the previous Rules. Their response has been inserted into the modernised guidance which accompanies this route, where it says: a state-maintained school or institution (ie one which provides free education and is funded mainly from public funds) Previously, the Rules for student visitors allowed successful applicants to come to the UK for a period of no more than 6 months before going on to then state that applicants needed to be accepted on to a course of study and that this study must take place at an acceptable institution. The Rules for the new shortterm student route state that students will need to do a course of study of no more than 6 months. We asked the Home Office about this, and highlighted how such a change would adversely impact on distance learners and those coming to the UK solely to undertake re-sits. We received a response from the Home Office which is reflected in the modernised guidance produced for this route. The guidance states the following: Studying in the UK for part of a course An applicant who meets the following criteria may apply to come to the UK as a short-term student. They: study outside the UK for a UK qualification (eg by distance learning) are on a course that is longer than 6 months are required to spend a period of time in the UK studying as part of the course must not spend more than 6 months studying here on any occasion A student who is re-sitting an examination can also apply as a short-term student if the study does not take longer than 6 months on any occasion. You must take care to be sure that where the student spends multiple periods in the UK, the frequent and/ or successive study periods do not mean they are studying here full-time. For example they spend a number of months studying here, leave the UK for a few days and then return for a further period of study. We pointed out that what are referred to in the Rules as requirements under this route should, in fact, be conditions. However, the Home Office said that not intending to work or claim public funds are requirements and will also be conditions of stay endorsed on their vignette or entry stamp. The requirement about not intending to work has been re-worded for short-term students who cannot take employment. From 24 April 2015, this will include: paid or unpaid work, work placements or work experience in the UK, and that they do not intend to undertake self-employment or engage in business or any professional activities in the UK The modernised guidance contains information about volunteering and says: Short-term students and employment Short-term students are not allowed to work in the UK, either in a paid or an unpaid job. They are not allowed to enrol on a course of study that includes a work placement or work experience. Short-term students can volunteer but may not do voluntary work. You must be clear on the difference between the two: Voluntary workers: often have a contract with their employer (this means the employer must provide the work and the voluntary worker must attend at particular times and carry out specific tasks) voluntary workers are also usually remunerated in kind. Volunteers: do not have a contract of employment must not take the place of an employee must not receive payment in kind but reimbursement for reasonable travel and subsistence expenses is allowed usually help a charity or voluntary or public sector organisation The Rules from 24 April say that the applicant must have an intention to leave before the end of six months (or 11 months in the case of those coming in to study a course of no more than 11 months under the short-term student route), or the end of their study, whichever is sooner. We pointed out the problems to the Home Office of adopting this change in the wording of the Rules: If someone is intending to do some study in the 6 month period under the short term student route and then wishes to travel within that period, there would seem to be no appropriate route for them. If such applicants are required to leave the UK at the end of their study and then seek to re-enter under the visitor (standard) route, the ECO or BFO may

11 UKCISA Special Briefing May refuse on the grounds that they believe it constitutes frequent or successive visits. The Home Office response to this did not directly address our query, so we have repeated our attempt to get clarity on this. Statement of Changes in Immigration Rules HC1025 Immigration Rules, paragraphs A57A to A57H Modernised guidance on short-term students Academic Technology Approval Scheme (ATAS) subsections , and Successful applications made on or after 6 April 2015, for most categories of immigration permission, will be granted subject to the condition that the migrant obtains ATAS clearance and provides a certificate of this clearance to the institution where they will study before undertaking the following: a. study towards a Doctorate or Masters degree by research in one of the disciplines listed in paragraph 1 of Appendix 6 of the Rules, or b. study towards a taught Masters degree or other postgraduate qualification in one of the disciplines listed in paragraph 2 of Appendix 6 of the Rules, or c. a period of study or research of more than six months in one of the disciplines listed in paragraphs 1 or 2 of Appendix 6 of the Rules at an institution of higher education where this forms part of an overseas postgraduate qualification. In addition, if the completion date of any of the study listed above is postponed or delayed for a period of more than three calendar months or there are any changes to the course contents (or the research proposal), the student must apply for a new ATAS clearance certificate within 28 calendar days, and must provide a print-out of the new certificate to the institution promptly after this is made available by the Counter-Proliferation Department of the Foreign and Commonwealth Office. The condition is imposed on applicants in different ways according to their immigration category and/or age. However, the Statement of Changes doesn t lay out the variations in one simple format. Below we have grouped these for ease of navigation. However, you may wish to double check with the Rules as and when you are enrolling a non-tier 4 student, who is subject to immigration control, on to any relevant course. Applicants will have this condition imposed, on the leave that is granted, if their application for leave in any of the following categories is decided on or after 6 April 2015: Leave to enter as a representative of an overseas business Extension of stay as a representative of an overseas business Leave to enter on grounds of UK ancestry Extension of stay on grounds of UK ancestry Leave to enter as person with limited leave to enter or remain as a partner of a person with limited leave to enter or remain in the UK under paragraphs (but not paragraphs 135I-135K) of the Rules (pre- Points Based System work categories) Extension of stay as person with limited leave to enter or remain as a partner of a person who has / last had limited leave to enter or remain in the UK under paragraphs (but not paragraphs 135I-135K) of the Rules (pre-points Based System work categories) Extension of stay as the partner of a person who is being admitted at the same time for settlement, or the partner of a person who has indefinite leave to remain or has become a British citizen Tier 1 (Investor) - entry clearance and leave to remain Tier 5 (Youth Mobility Scheme) entry clearance Leave to enter or remain as the spouse, civil partner, unmarried partner or same-sex partner of an armed forces member exempt from immigration control Extension of stay as a retired person of independent means Leave to enter as the partner of a person who has or has had leave to enter or remain in the United Kingdom as a retired person of independent means Extension of stay as the partner of a person who has or has had leave to enter or remain in the United Kingdom as a retired person of independent means Leave to enter or remain as the child of a person with limited leave to enter or remain in the United Kingdom as a retired person of independent means Limited leave to enter for Afghan citizens Limited leave to enter for partners of Afghan citizens Leave in accordance with the provisions set out in Part 11 (Asylum) of the Immigration Rules Applicants will have this condition imposed, on the leave that is granted, if their application for leave in any of the following categories is decided on or after 6 April 2015 and they are 18 on the date their leave is granted or will be 18 or over before the period of leave expires: Tier 1 (Exceptional Talent) - entry clearance and leave to remain Tier 1 (Entrepreneur) - entry clearance and leave to remain Tier 1 (Graduate Entrepreneur) - entry clearance and leave to remain

12 UKCISA Special Briefing May Tier 2 (Intra-Company Transfer) - entry clearance Tier 2 (General), Tier 2 (Minister of Religion), Tier 2 (Sportsperson) - entry clearance and leave to remain Tier 5 (Temporary Worker) - entry clearance Limited leave to enter or remain under Part 8 (family members) of these rules Limited leave to remain on the basis of long residence or private life in the UK or limited leave to enter in accordance with paragraph 276A01(1) (or limited leave to enter or remain outside the rules on Article 8 grounds) Leave to enter or remain as child of an armed forces member exempt from immigration control Appendix Armed Forces entry clearance, leave to enter and leave to remain Appendix FM (or outside the rules on Article 8 grounds) Those granted leave following a successful application made on or after 6 April 2015 in one of the following categories will be subject to the condition: Leave to enter or remain as the spouse or civil partner of a student or leave to remain as the spouse or civil partner of a prospective student Leave to enter or remain as the child of a student or leave to remain as the child of a prospective student (if the applicant is 18 when the leave is granted or will be 18 or over before the period of leave expires) Tier 5 (Temporary Worker) leave to remain (if the applicant is 18 when the leave is granted or will be 18 or over before the period of leave expires) Those granted leave following a successful application for entry clearance or leave to remain as a Tier 4 (Child) made on or after 6 April 2015 will be subject to the condition from the date on which the student becomes 18. Statement of Changes in Immigration Rules HC1025 Immigration Rules, paragraph 15 Administrative review subsections , , and Leave to remain applications Administrative review replaced appeals for leave to remain applications made on or after 2 March 2015 for Tiers 1, 2 and 5, as well as for applications as dependants of those with leave in any of these Tiers. It replaced appeals for most other leave to remain applications, as well as applications made under the Turkish Association Agreement, made on or after 6 April The only exceptions (as listed in Appendix AR of the Immigration Rules at paragraph AR3.2 (c)) are applications or human rights claims made under: long residence (leading to indefinite leave to remain) private life partner or child of a member of HM Forces partner or child of a member of HM Forces, where the sponsor is a foreign or Commonwealth member of HM Forces and has at least 4 years reckonable service in HM Forces at the date of application family members under Part 8 of these Rules where the sponsor is present and settled in the UK (unless the application is made under paragraphs 319AA to 319J of these Rules, or under paragraph 284, 287, 295D or 295G where the sponsor was granted settlement as a Points Based System Migrant) or has refugee or humanitarian protection status in the UK asylum partner or child of a member of HM Forces where the sponsor is a British Citizen or has at least 4 years reckonable service in HM Forces at the date of application family members under Appendix FM, but not where an application is made under section BPILR (bereavement) or section DVILR (domestic violence) Those refused leave in any of the above categories retain a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 rather than a right to apply for administrative review. Applications as a visitor made on or after 6 April 2015 attract no right to administrative review or appeal if refused. Since 2 March 2015, eligible decisions (ie a decision which attracts the right to apply for administrative review) have included errors in conditions and length of leave. From 6 April 2015, the deadline for applying for an administrative review made of an alleged error relating to the length or conditions of leave is 14 days from the date of receipt of the Biometric Residence Permit (BRP). This should be stated in the letter accompanying the BRP. Paragraph AR 3.4 was added to the Rules, affecting applications made on or after 6 April 2015: where the applicant has been given notice of liability for removal within six months prior to the date of the application, then the refusal of that application will not be an eligible decision. All overstayers can be given a notice of liability for removal, and therefore the consequences of the