UK extends ILR qualifying period

UK extends ILR qualifying period

• Of dodgy bus passes, amnesties and a looming judgment

• When is 'indefinite leave to remain' not permanent?

• Key developments in UK immigration law in 2005

• UK leave to remain for children, spouses

• Legal advice as good as facts presented

• The incestral visa

• The minister of religion visa

• Justice Mungwira and judicial independence

• Taffy Nyawanza: Immigration options for victims of domestic violence

• Taffy Nywanza: Implications of UK asylum decison

• Taffy Nyawanza: The right to family life

• Taffy Nyawanza: New UK changes to managed migration

• Taffy Nyawanza: UK immigration rules on marriage, domestic servants

• Taffy Nyawanza: Switching from work permit to indefinite stay

• Taffy Nyawanza: Immigration and you

• Taffy Nyawanza: Makosi and the real Big Brother

By Taffy Nyawanza

The Home Office has dropped a bombshell.

It has announced that it will increase the qualifying period for Indefinite Leave to Remain (settlement) from 4 to 5 years with effect from the 3rd April 2005. This change will be reflected in the Immigration Rules.

In a press release dated the 13th March 2006, the Home Office advises that for all employment-related categories and the Ancestry category the initial grant of leave to remain will now be 2 years, followed by a subsequent period of up to 3 years. It is after the combined 5 year residence period that one would then be entitled to ILR.

Excepted are Retired Persons of Independent Means who will still be eligible for one single period of leave all the way up to the settlement qualifying period as before. Work Permit holders on the other hand will be eligible for an initial grant of leave up to the currency of their work permit. The rules previously allowed for an initial period of up to 12 months leave to be granted, followed by a subsequent period of up to 3 years.

Highly Skilled Migrants will now be able to amalgamate continuous time spent in the UK as a work permit holder, Highly Skilled Migrant and/or an Innovator when applying for indefinite leave to remain as a Highly Skilled Migrant.

In the ‘Question and Answer’ portion of the Press Release, a slightly more detailed explanation of the purpose of these changes is given. Essentially, the UK government’s view is that permanent migration must also be a journey towards being as socially integrated as possible. How social integration can be magically achieved in 5 years instead of the current 4 is not altogether clear.

Perhaps, more intriguing is the argument that these changes are meant to bring the UK government in line with European norms. Intriguing because the UK government has previously argued that its migration policy will continue to be determined independently of Brussels.

For now, however, it looks like people that are already in categories leading to settlement (CLS) will have to adjust their plans. There is some relief for those that have already made an application for settlement before 3 April 2006. Transitional arrangements will be put in place to ensure that they will have their applications handled under the old rules, even if the decision is made after 3 April. The date of application will be the date of postage.

Additional transitional arrangements will also be put in place for those who apply for settlement immediately after 3 April having only completed 4 years in the UK. Those applicants will have the opportunity to vary their application from a settlement application to a one-year leave to remain application without losing their original application fee.

Applicants under these schemes will still have to meet the other requirements, for instance, those in employment will still have to show that there is a need for their skills and that their employer is going to use them for the foreseeable future. They will have to show that they are able to support themselves and any dependants without recourse to public funds.

Those not in salaried employment, e.g. investing, continuing in business or self-employment, etc., still have to show that they are maintaining the purpose for which they came, and that they can support themselves and any dependants without recourse to public funds.

But what exactly is the fuss about ILR?

As previously discussed on this column, the ILR visa is so coveted primarily because it has no immigration related restrictions on the type of work or business a person on this visa class may undertake (a work permit in contrast may prove to be a 5 year trap because of the limited options to negotiate out of what my turn out to be a bad deal). The ILR also clears the way to a host of tax relief schemes and other welfare benefits. It means cheaper home rate higher education fees if coupled with 3 years residence in a capacity other than that of a student. Mortgages and loans in general are easier to obtain once one is on ILR. Children born to a parent with ILR are automatically entitled to British citizenship. ILR is of course in itself the first major step towards British nationality for the holder. Perhaps more importantly, once ILR is obtained, it may be lost or revoked by the Secretary of State only in very limited circumstances, for example after 2 years absence from the UK.

Many of the people affected by these changes will feel therefore that the dream is slipping away and that this important change has come at too much short notice, as well as being arbitrary. They will also feel that this is the latest in a series of increasingly restrictive legislative responses by the Labour government and a demonstration of just how immigration is increasingly becoming an important, if not emotive issue. But perhaps more importantly, they will feel that the government is on to another money spinner and will treat this with the same cynicism reserved for speed cameras. Consider this; the initial application for a Work Permit costs £335. The HSMP costs £315.

After 2 years, a further payment of £335 will be needed to extend the visa by another 3 years. After the 3 years, the ILR application itself will cost another £335. If one is so inclined, a naturalisation application will cost a further £268 (£336 for a couple + £200 for one or more children). A premium service (which is done in person and considered the same day) is available in all the above applications, save naturalisation, and costs £500. You do the maths, I will do the law.

This besides, I personally think that the hallmarks of a good immigration system anywhere in the world is predictability. People will generally invest emotionally and otherwise in a place where they feel a sense of permanency.

Is there a solution? Perhaps the legal status of the Immigration Rules could provide a way of tackling this one. Immigration Rules are made by the Secretary of State and generally do not have the power of law in the same way as legislation or secondary legislation such as statutory instruments. They do bind the lower courts (the Immigration and Asylum Tribunal included), but not the higher ones which have previously declared them to be ultra vires, or outside the enabling laws. The difficulty will of course be in persuading a court that an extension of 1 year towards qualification for ILR will have worked great hardship.

Another angle would be that the Immigration Rules themselves are by nature subject to frequent amendments. They are contained in a House of Commons Paper which is drafted and then laid before Parliament for scrutiny under what is called a ‘negative resolution’ procedure. If no objections are made to the rules within 40 days they are considered to have been passed by Parliament. The relevant Statement of Changes in Immigration Rules for this particular amendment was laid before Parliament on 10 March 2006. Whilst this is clearly the lowest level of scrutiny available in Parliament as the changes are not debated, it will provide a window of opportunity for those affected to contact their local MPs to lobby and make noises in Parliament on their behalf.

This drastic proposal may yet be halted.