Tuesday, 14 July 2015

Update on UK Immigration Reforms Part One

Update on UK Immigration Reforms Part One
By Primerose Makunzva
In the last few months, there have been further significant changes to the UK Immigration system that will affect those applying for leave to enter or remain in the UK from 6th April 2015 onwards. It's no surprise that these changes were brought in just before the UK elections which took  place on 7th May 2015.The changes are regarding charges for use of the UK's National Health Service (NHS) by foreign nationals who are not settled in the UK, the new appeals regime, changes to visitors and Tier 1 Investor rules.

Following the enactment of the Draconian Immigration Act 2014, the UK Government has now introduced a health surcharge to cover access to the UK's National Health Service (NHS). Use of the NHS is no longer free for everyone living in the UK or coming to the UK.
The fee is £200 per person per year and £150 per year for students and it is to be paid by all non EEA nationals who are applying for leave to enter the UK for a period of more than 6 months or non EEA nationals who are already in the UK and are applying for limited leave to remain.

The surcharge applies to all applications submitted on or after 6th April 2015. It will not apply to applications submitted before 6th April 2015.The health surcharge will be payable online before an applicant submits their application for entry clearance or leave to remain in the UK. Visa applicants or applicants for leave to remain will need to pay up-front for the total period of their UK visa or leave to remain. For example if an applicant is applying for a 3 year visa, they will be expected to pay £600 for the surcharge before submitting their application. Where an applicant has dependants, they have to pay the surcharge for each dependant as well. The surcharge is  not part of the Home Office or Visa application fees. 

Applicants who are required to pay the NHS surcharge will obtain an IHS reference number after making payment online on the government's website Immigration Health Surcharge. The IHS reference number which is generated after making payment on this website must be provided on the application form for leave to remain or entry clearance. 

Certain applications are exempted from paying the NHS surcharge. You will be exempted under the following scenarios:
·         you’re applying for a visitor visa
·         you’re applying for indefinite leave to remain
·         you’re a diplomat or a member of a visiting armed forces and not subject to immigration control
·         you’re a family member of a European national with European Union treaty rights
·         you’re applying for a visa for the Isle of Man or Channel Islands
·         you’re a British Overseas Territory citizen resident in the Falkland Islands
·         you’re an asylum seeker or applying for humanitarian protection (or you’re their dependant)
·         you’ve been identified as a victim of human trafficking (or you’re their dependant)
·         the Home Office’s domestic violence concession applies to you (or you’re their dependant))
·         being made to leave the UK would be against your rights under Article 3 of the European Convention of Human Rights (or you’re their dependant)
·         you booked a visa premium service centre appointment before 6 April 2015 (even if your appointment is after 6 April)
  • you are destitute and within the policy on being exempt from paying the fee for an immigration application
It is important to note that even though visitors do not have to pay the surcharge, they are still not entitled to free treatment in the UK. Visitors are required to pay for NHS treatment at the point when they need it once they are in the UK.

There are other applicants who will not have to pay the NHS surcharge but they will still be required to provide an IHS reference number on their application forms. You still need to get an immigration health surcharge (IHS) reference number but you won’t need to pay if:
  • you’re applying for a Tier 2 (Intra-company Transfer) visa(or you’re their dependant)
  • you’re a child under 18 who has been taken into care by a local authority
  • you’re a national of Australia or New Zealand
  • you’re the dependant of a member of the UK’s armed forces
  • you’re the dependant of a member of another country’s forces who is exempt from immigration control
  • you’re a relevant civilian employee employed by North Atlantic Treaty Organisation (NATO) or the Australian Department of Defence in the UK (or you’re their dependant)
The new appeals regime introduced by the Immigration Act 2014 is now in force. This regime was introduced in stages since October 2014. Full appeal rights for students ended in October 2014, for applications under Tiers 1, 2 and 5 of the Points based system, appeal rights ended on 2nd March 2015. For all other applications, full appeal rights ended on 6th April 2015. The appeals system has now been replaced by a system of administrative review which was discussed in the previous Immigration Updates published on this website in September 2014 and February 2015.
We now have a new appeals regime whereby appeal rights are only generated where a person has made a protection/asylum or human rights claim. The Upper Tribunal has already had a chance to consider what amounts to a protection and human rights claim for the purposes of deciding whether an applicant has a right of appeal or not. In the case of  R (on the application of Waqar) v Secretary of State for the Home Department (statutory appeals/paragraph 353) IJR [2015] UKUT 169 (IAC) , the Upper Tribunal held that the new section 82 of the 2002 Act does not mean what it appears to say and should instead be interpreted so as to mean that only a new or fresh “claim” will count as a “claim” and require a “decision” thus giving rise to a right of appeal. From this decision it appears that not every claim will generate a right of appeal. Only fresh claims which have not been considered before and have been accepted by the Secretary of State as fresh claims will generate a right of appeal. This means that if a claim has been considered in the past, it will not generate a right of appeal. This is a controversial decision which is probably going to be challenged because it is unfair and will give the Secretary of State a lot of power which would see those who should benefit from having right of appeal denied their rights unreasonably. This issue will remain contentious until we have had other decisions on their same issue from the Higher courts.
As mentioned earlier, there have been other changes to the visitor rules, applications under Tier 1 of the Points Based system for those who wish to come to the UK as investors. These will be considered in future articles.
Please note that this paper does not seek to provide direct legal advice in people's individual cases. The intention of the writer is to raise awareness on what is going on as far as Immigration law reforms in the UK are concerned.  If you think you may be affected by the changes in the UK, please seek advice from a professional. 
Primerose Makunzva is a solicitor practicing in England. She can be contacted at p.makunzva@ipslegal.com or on 07818 066522/ 0203 176 5216. You can also watch her videos on Immigration Law at www.ailtv.com
Disclaimer: This article only provides general information and guidance on immigration law. The writer will not accept any liability for any claims or inconvenience as a result of the use of this information.

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