Home Office publishes new Statement of Changes to the Immigration Rules, effective from 12 April 2023

The UK Government has published its latest Statement of Changes to the Immigration Rules ('the Rules') on 9 March 2023. 

A number of the changes being implemented were expected in November 2022, but were subsequently delayed due to reshuffles in Home Office appointments.

The changes which will affect the largest number of migrants are:

1. the formal introduction of the Electronic Travel Authorisation ('ETA') scheme into the Rules from 12 April 2023
2. increases in the gross annual minimum salary thresholds for sponsored workers assigned a Certificate of Sponsorship on or after 12 April 2023:

• from £25,600 to £26,200 for Skilled Workers; and
• from £42,400 to £45,800 for Senior/ Specialist Workers
• from £42,400 to £45,800 for UK Expansion Workers

3.  modification of the 'going rates' for various occupation types, including the calculation for pro-rating salaries in line with contractual hours on or after 12 April 2023
4. rebrand of the Innovator route as 'Innovator Founder' and removal of the £50,000 capital requirement on 13 April 2023

ETA

ETA is being introduced to enhance UK border control and give law enforcement authorities more time and information to assess whether travellers not requiring a visa for the UK present a security or other risk prior to their arrival in the UK. 

This will align the UK with similar schemes in place for the USA, Canada, Australia and soon to be introduced for Schengen Member States.

The UK's ETA scheme provides that all international travellers (with the exception of British and Irish citizens and individuals already holding a UK visa) will need some form of authorisation in advance to enter or transit through the UK, or entry to the UK may be denied. ETA will be required by visitors, short term students and sponsored Creative Workers classified as 'non-visa nationals', who until now have been able to seek permission for up to three months on arrival in the UK. 

The Rules governing ETA's operation and function in border control will take effect on 12 April 2023 for individuals participating in private pilots and will be fully implemented in four phases over the coming 18 months:

• From 15 November 2023, Qatari citizens not already in possession of a valid UK visa will require valid ETA prior to travelling to the UK
• From 15 February 2024, this will be extended to citizens of Bahrain, Jordan, Kuwait, Oman, Saudi Arabia and United Arab Emirates
• extension of ETA requirements to all other nationalities to be rolled out in two further phases by Autumn 2024.  

Individuals can apply for ETA online or using a dedicated app and a decision should be expected within three working days. An ETA will be issued electronically and linked to the passport used in the application, valid for two years or the remaining passport validity if less. The ETA application fee is yet to be announced but is expected to be under £10. If an individual is refused ETA, they will need to apply for a visa in the category appropriate to their stay instead.

Introduction of the Innovator Founder route 

The Innovator route was introduced in March 2019 as a replacement for the Tier 1 (Entrepreneur) route which closed at the same time. 

Under the original Innovator criteria, individuals with £50,000 in capital to invest in their own new 'viable, scalable, innovative' business in the UK could apply to Home Office approved third party 'endorsing bodies' for endorsement of their business and credentials, and once secured, apply for an Innovator visa. The latest Statement of Changes rebrands Innovator as 'Innovator Founder' and implements the following changes:

1. removes the £50,000 capital requirement for initial eligibility (noting investment of this sum is one of the eventual settlement criteria)
2. for the first time, permits 'secondary' employment (in a business other than the endorsed business for which they hold the Innovator visa) where the additional work is skilled to at least RQF Level 3 (A level/ secondary school leaver or above) and
3. allows use of a dedicated Home Office app to complete biometric enrolment.

If an individual is on a current Innovator visa, Start Up visa or Tier 1 (Graduate Entrepreneur), extensions or switching into this route will be available. Settlement is also available after three years on an Innovator Founder visa provided the settlement requirements are also met. 

These changes will be implemented on Thursday 13 April 2023. 

Updates to sponsored work routes 

MINIMUM SALARIES FOR SPONSORED ROLES

Salary thresholds for sponsored work routes have been increased and 'going rates' for individual occupations are being updated based on the latest available UK salary data, the rationale being to bring them into line with the rising cost of living in the UK. 

For individuals sponsored from 12 April 2023, the minimum gross annual salary threshold for a Skilled Worker visa will be £26,200, for Global Mobility Senior and Specialist Workers will be £45,800 and for Global Mobility UK Expansion Workers will be £45,800. The minimum going rates for each occupation type are being updated, with the minimum possible hourly salary being increased to £10.75 per hour (currently £10.10) and annualised going rates being recalibrated to a 37.5 hour working week (currently 39 hours), meaning that previous calculations for pro-rating salaries based on contractual hours must be adjusted to confirm a role's suitability for sponsorship.

The updates also allow workers following working shift patterns or irregular hours each week to have their average hours over a maximum 17 week work cycle recognised towards meeting the minimum salary requirements. 

These changes relate to Skilled Worker, Global Business Mobility ('GBM'), Scale-Up and Seasonal Worker routes.

OTHER CHANGES INCLUDE:

• GBM UK Expansion Worker route – Australian nationals applying under the GBM UK Expansion Worker route will not need to demonstrate that they have worked for their employer for 12 months prior to the application to facilitate international trade between the UK and Australia
• Youth Mobility Scheme visa – Under a bilateral arrangement, New Zealand nationals are now able to apply for the Youth Mobility Scheme until age 35 (previously restricted to applicants aged 18-30) and the length of stay has been increased from two to three years
• Global Talent - Global Talent visas allow an individual to work in the UK if they are a leader or potential leader in academia or research, arts and culture, or digital technology. Changes are being made to the endorsement criteria and evidential requirements. In addition, time spent in the UK with permission as a Representative of an Overseas Business may be included as part of the continuous residence period for Global Talent settlement applications
• Employment continuity - attending court as a witness and jury service are being added to the list of reasons where absence from employment is permitted when considerations about employment continuity are made, for example in settlement applications
• Occupation codes - Applicants in certain sponsored routes may change occupation code as part of a graduate training programme

These updates will be implemented on Wednesday 12 April 2023.

Returning resident

The returning resident Rules currently do not allow someone whose indefinite leave to enter or remain in the UK (settlement) has lapsed through absence for more than two years from the UK to apply as a returning resident, able to be considered settled on return to the UK, where they have been admitted to the UK as a visitor since their settled status lapsed. 

In a widening of the Rules, these are now being changed to allow individuals to resume their settlement, even if they have been since admitted to the UK as a visitor (but not received temporary permission in another category such as a Skilled Worker). These returning resident applications must be made from outside the UK, and usually require substantial evidence of continuing connections to the UK and intention to resume or continue long-term residence in the UK. 

Settlement on the basis of long residence 

The current 'long residence' Rules allow time spent in the UK in any lawful immigration category, including visitor, academic visitor, medical visitor, marriage visitor, domestic worker in a private household, short term student and other temporary routes, to be counted towards the 10 year qualifying period for settlement. 

On 13 April 2023, the Rules are being tightened to prevent time in the UK in these temporary categories being counted as qualifying for settlement where:

• the maximum grant of permission in the category is 12 months or less, and
• switching onto another route is not permitted from within the UK.

In a move to change Rules which will have retrospective effect for individuals applying from 13 April 2023 onwards, prospective applicants who are currently hoping to count historic time spent in the UK in one of the newly prohibited routes may find they are no longer eligible. 

Further, individuals who have held permission in an accepted route prior to a period of stay in a newly prohibited route may find their qualifying residence as having been broken by that stay, which could mean the difference between being eligible or not, or the qualifying period being unexpectedly extended by years.

EU Settlement Scheme ('EUSS')

Expansion of the Rules for qualifying EEA/Swiss nationals and their family members include the following technical amendments:          

• 'Durable partners' may apply under the EUSS where they were lawfully resident in the UK before the end of the transition period, including where they were not issued a Home Office document as a durable partner under the EEA Regulations prior to 1 June 2021

• New provisions for non-EEA/Swiss national primary carers of British citizens ('Zambrano' carers) and of self-sufficient EU citizen children ('Chen' parents) and children in education in the UK where the parent is an EU citizen former worker or self-employed person in the UK and the child’s primary carer ('Ibrahim & Teixeira' children) be eligible to apply for pre-settled and settled status where they arrived in the UK under an EUSS family permit.

Notably, the Home Office has not taken the opportunity in this round of Rules changes to address the current illegality of the settled status requirements found by the High Court in its the judgment Independent Monitoring Authority v Secretary of State for the Home Department [2022] EWHC 3274 (Admin), previously reported by our team in February 2023.

New Child joining a Non-Parent Relative (Protection) category 

A new Child joining a Non-Parent Relative (Protection) category is being introduced and replaces the existing provisions for children of a relatives in the UK as a refugee or beneficiary of humanitarian protection. 

Adult Dependent Relative (ADR)

The ADR route allows an individual with ongoing care needs to live with a qualifying close relative (sponsor) who is in the UK, provided the applicant can demonstrate the relationship and that as a result of age, illness or disability, that they require a level of long-term personal care that can only be provided in the UK by their sponsor. 

An applicant whose carer has temporary permission to stay in the UK will be granted permission which expires in line with their sponsor’s. 

The Statement of Changes now provides for an applicant to be granted immediate settlement, where their sponsor is a British Citizen or settled in the UK. 

Applicants who fail certain suitability grounds (eg have unpaid litigation debt or involvement in a sham marriage/civil partnership), but their removal would breach Article 8 of the European Convention of Human Rights may apply for temporary permission attracting a longer qualifying period than the standard route.

The ADR route in recent years has attracted a very high refusal rate due to the Home Office's rigid interpretations of whether the applicant can afford or access suitable professional care in their home country, with most applications being successful on appeal. It will remain to be seen whether this expansion of the category to allow immediate settlement for successful dependants of British and settled individuals will be reflected in a more open approach to being cared for by relatives in the UK in the grant of more applications.

Technical Changes to Administrative Review 

A change is being made to tighten Administrative Review Rules so that where a person is refused on both suitability and eligibility grounds, there is no right to Administrative Review meaning a fresh application will be required in these instances. This does not prevent an appeal being submitted where a right of appeal on Human Rights grounds is available.

For further information as to how we can help please contact our UK Immigration team, or your usual Withers contact, call +44 20 7597 6000 or email enquiries.uk@withersworldwide.com.