By Ioannis Karamarias∗
With the EU free movement due to come to an end on 31 st December 2020, at 11.00 PM, (which was also confirmed by the House of Commons who have ratified into law the Immigration Act 2020 on 12 th November 2020), from 1 st December 2020, at 9.00 AM a new, (amended), Appendix V will replace the existing version, with a key focus on a consolidated and simplified set of rules setting the criteria an EU, (who is not a UK resident, either with pre-settled or settled status and will be travelling to the UK from January 2021 onward and essentially from 1 st October 2021), or a non-EU citizen must meet in order to be considered eligible for the UK visitor’s Visa. We will examine and assess some of the substantive amendments to the visitor’s Visa rules, as well as their (possible) impact on those who will be applying for a visitor’s Visa in the UK from 2021 onwards.
A] Travel documents and Identity Card documents
Currently, one of the validity requirements for a visitor application is for the applicant to provide a travel document. This means being in possession of a “valid passport or any other documents that allow the documents’ holder to travel internationally”. The requirement for a travel document is instead being replaced with a requirement for a visitor’s Visa Applicant to provide a “passport or any other document which satisfactorily establishes their identity and nationality”. This may give way to more flexibility as to the documents required for visiting the UK. However, on the other hand, it may have the opposite effect of giving more discretion to decision-makers to refuse entry to those who, actually, hold a travel document which, on the one hand, may enable them to travel internationally, but, which, on the other hand, may not, (under the UK laws), meet the criteria to establish identity and nationality. For example, some national identity cards, (only of certain countries), may be considered more secure than others and therefore, as enabling to a greater extent the entrance of visitor’s VISA holders from these countries, than those from other countries.
B] Suitability requirements: cut down but becoming more stringent
Part V3 of the existing visitor rules contains lengthy paragraphs of the so-called “suitability requirements”. These set out the reasons why visitor applications may be refused due to, for example, adverse immigration history/background or criminal convictions. All this is to be replaced with a one-line reference to suitability: that these Applicants are not going to be subjected to the provisions of Immigration Rules, Part 9, that are related to refusal (of Entry Clearance or Leave to Remain in the UK).
At first instance, this appears to be a positive development, which bears some positive changes. For example, failing to provide required information, attend an interview, provide biometrics, undergo a medical examination or provide a medical report upon request, (by the Secretary of State for the Home Department), are now grounds under which the Home Office caseworkers retain the right to decide whether they will grant or refuse the Applicant, visitor’s Visa, rather than grounds under which the Applicant, (if this had been the case), should not be granted visitor’s VISA, outright. There is also some added flexibility on those who have overstayed their visitor’s Visa. Currently, over-staying in the UK for more than 30 days, [under Immigration Rules 320(7B)(a)(i)(b), referring to dates on or after 6 th April 2017], will result in a re-entry ban for the person in question, of at least 12 months.
Under the new, (amended), Part 9 of Immigration Rules, any period of overstaying between 24 th January and 31 st August 2020 will be disregarded for the purpose of the re-entry ban or reference to breaches of immigration laws. This is an extraordinary provision, due to COVID-19 eventualities, recognising the adverse impact of Covid-19 on those unable to leave the UK promptly and on time, (upon expiry of their visitors’ Visas). However, the new provisions do not appear to take into account, (as to whether the said over-stayers will have to face a re-entry ban from the UK of 12 months or not), those who overstayed in the UK from 1 st September to 31 st October 2020, (although they were included in the COVID-19 grace measures of the Home Office and were provided with an exceptional assurance by the Secretary of State, that they would not face such adverse consequences).
C] The Applicants’ criminal record
Some suitability provisions have been made more stringent, and in particular, the criminality thresholds. The Secretary of State has now has power to refuse Visitor’s VISA Applications, outright, where the Applicant has been convicted of a criminal offence for which they have received a custodial sentence of at least 12 months, irrespective of when this occurred, in which country or any compelling circumstances (such as age, the nature of the offence, or the exceptional nature of the visit of the visitor’s Visas holders in question, that is made for example, in order to enable the said Visa holder
to attend the funeral of a close family member of his/hers, in the UK).
The Immigration Rules under their current version, provide a mandatory ground for refusal which takes into account both the length of sentence and the time which has passed since the execution of the criminal sentence. The amended Immigration Rules, (Part 9), therefore introduce a significant change as to the approach on criminality and the visitor’s Visas Applicants’ (possible) criminal records.
Applications must also now be refused where the person has committed a criminal offence and is either considered to be a persistent offender who shows a particular disregard for the law or has committed a criminal offence which caused serious harm. This is currently a discretionary ground for refusal — “may” rather than “must” be refused — allowing the Applicant in question to explain the nature of the offences he/she may have committed, which may be particularly important as to politically motivated actions which constitute criminal offences and are considered as such in certain countries, but which would not constitute crimes, and would not be considered as such, in the UK. Some additional grounds for refusal have also been added to Part 9 which will impact those wishing to enter as visitors. Permission to enter as a visitor may be refused where the decision-maker considers that a customs’ breach has been committed (for example, by carrying a prohibited item), whether or not a criminal prosecution is pursued. Applications may also be refused where the decision-maker considers that the Applicant has been involved in a sham marriage or civil partnership.
The provisions on deception are also changing. The current position is that an application for a visitor’s Visa, must be refused where:
(a) false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the Applicant’s knowledge); or
(b) material facts have not been disclosed, in relation to their application or in order to obtain documents from the Secretary of State or a third party provided in support of their application. Under the new, (amended), Part 9, (visitors’ VISA) applications may now be refused for these reasons but must be refused where the decision-maker “can prove that it is more likely that the Applicant used deception in the application, rather than he has not”. As deception would involve an intention to deceive, (namely to intentionally provide the Home Office with false information or false documents about himself/herself), at the same time it will be important to review the approach taken on this point, namely as to how deception will be clearly distinguished from a genuine oversight or inadvertent error in the application, or false information or documents being genuinely provided, without the Applicant’s knowledge.
E] Permitted and prohibited activities. (under the previous framework)
There is a list of activities that are permitted for people on a visit visa, currently in Appendix 3 to Appendix 5 of Immigration, (for visitor’s Visas), Rules. In the new rules, the list comes under the heading Appendix Visitor: Permitted Activities. Whilst there do not appear to be any substantial changes to the permitted activities as a visitor, nevertheless, there are some changes worthy of further consideration. There is to be more flexibility for people to visit the UK for study. It will now be allowed for study to be the main purpose of the visit. In addition, the provisions allowing people to visit for up to 30 days for a short course at an accredited institution in the UK, are being extended and are now permitting study as a visitor, (entering the UK on a visitor’s VISA), for a longer period of up to six months.
People aged 16 or over who are enrolled on a course of study overseas may also now visit the UK to undertake research or have “research tuition” at a UK institution for up to six months. Their research or research tuition must be relevant to their course of study overseas. Academics can currently apply to visit the UK, (on a visitor’s VISA), for up to 12 months. However, only certain academics in the UK can extend their permission to a total of 12 months, namely those coming to the UK, on a sabbatical leave in order to expand or further their own research. The scope for an extension will be expanded to include academic visitors taking part in formal exchange arrangements or who are eminent senior doctors or dentists taking part in research, teaching or clinical practice in the UK. Volunteering in various activities in the UK, for up to 30 days can now be one of the main purposes of a visitor’s VISA and will no longer be required to be incidental to the visit. The reasoning provided for this is that “incidental” is ambiguous and can be interpreted in different ways, even though the Rules clearly state that volunteering is not the only main purpose of the visit, (but one of the main purposes of the visitor’s visit) and must therefore, be considered, a valid reason for a visitor’s VISA to be granted.
The amended visitors’ VISA provisions also clarify that drivers on an international route collecting goods or passengers will fall within the visitors’ VISA provisions. Currently this only applies to those delivering goods or passengers from abroad to the UK. Finally, the “prospective entrepreneur” provision has been specifically removed. This allows visitors who can show that they are supported from an endorsing body under the Start-up or Innovator routes to enter the UK for “discussions to secure funding” with a view, (for instance), to set up a business here. Arguably this was unnecessary duplication as such visitors, (on a visitor’s VISA), are allowed to enter the UK anyway to attend meetings or to negotiate as well as broker deals and reach/sign (commercial/business) Agreements.
F] New Appendix Finance
Visit visa applicants are required to show they have sufficient funds to cover all reasonable costs of the visit. From December 2020, any funds relied upon for the application must be held by permitted institutions under the new Appendix Finance. This Appendix excludes reliance on funds by financial
institutions where satisfactory verification checks cannot be made, or where the institution is not appropriately regulated, (by a lawfully recognised professional body), or where the institution does not use electronic record keeping.
These amended Rules are an important signal of what may well happen after 1 st January 2021, when the UK will enter a new era, as the outcome of Brexit process. Attempts to consolidate the Rules and allow for more consistency and unnecessary repetition are welcome, although simplification has
clearly not been the only concern, in these amended Rules. Flexibility has been introduced in some areas, including for those wishing to study in the UK for up to six months, (instead of 30 days which was the maximum time-limit under the previous legal framework), and it would be a positive fact to see further measures introduced to reflect the flexible and non-traditional work arrangements under which individuals may now operate whilst in the UK on a visitor’s Visa, and particularly under the new restrictions in moving outside the UK or travelling from the UK abroad, as have emerged under COVID-19.
Another valid reason for which more flexibility would be required is that from 1 st January 2020, (and essentially, from 1 st October 2021, these Rules will apply to EU citizens, who are not EU residents, (with pre-settled or settled status) and will be entering or travelling to the UK, from abroad, (EU Member States), and their entrance to the UK should always be welcome for various reasons, (for instance, for the funds that will be leaving in the UK as tourists, thus, contributing to the UK’s economy, or by being engaged in various academic activities, as students or researchers, thus contributing to the scientific progress of the UK but also enhancing, through proper research, their scientific knowledge and expertise, or by paving the way for being involved in various business activities in the UK, thus contributing in this way, to the UK’s economy); and all this is important, especially in the new era the UK is due to enter from January 2021 onwards, the outcome of Brexit process, since for the UK and the UK’s society to keep evolving and keep pace with them and the outside world, as a whole, they need to keep an open eye with the outside world, especially with the EU countries and keep interacting with them and the European citizens in general in a constructive manner, by being receptive to the knowledge, contributions and expertise of the latter and reciprocating with their own ones, towards the EU and the rest of the world, in general. Under this point of view, further (more flexible) amendments to the Rules can well have a positive impact, overall. On the other hand, the unexpected changes to certain suitability provisions indicate that an adverse immigration or criminal background of the Applicant in question for a visitor’s Visa is to play a very significant role in determining whether visitors should be denied permission to enter the UK from January 2021 onward.
∗Ioannis Karamarias, LLB (Hons), LLM (Univ. of Bristol), LLM, (Queen Mary, Univ. of London), is a Solicitor (England and Wales) specialising in Immigration Law. He is an Associate Solicitor at BIRUNTHA SOLICITORS