In its latest Statement of Changes to the Immigration Rules (HC1160), presented to Parliament on 9 March 2023, the Home Office has announced various changes to a number of UK immigration routes, including the closure of one immigration route and the opening of another.  In this post we highlight some of the key changes to the Immigration Rules that applicants should be aware of, including:

• Introduction of the Electronic Travel Authorisation (ETA) Scheme;
• Introduction of the Innovator Founder Visa route;
• Closure of the Start-up Visa route;
• An increase in the Skilled Worker visa salary rates;
• Updates to the Global Talent routes;
• Introduction of a new Appendix Adult Dependent Relative; and
• Changes to the definition of ‘lawful residence’ in the Long Residence rules.

Introduction of the Electronic Travel Authorisation (ETA) scheme

From 12 April 2023, the Electronic Travel Authorisation (ETA) scheme will require specified nationals visiting the UK (other than as a Marriage/Civil Partnership Visitor) or transiting the UK who do not currently need a visa for a short stay of up to 6 months, as well as those using the Creative Worker route for a short stay of up to 3 months, to obtain an Electronic Travel Authorisation before travelling to the UK.

Passengers will not need an Electronic Travel Authorisation if they have either a British or Irish passport, permission to live, work or study in the UK or a visa to enter the UK.

Travellers who are legally resident in Ireland, and who do not need a visa to visit the UK, will also not need an ETA if they are entering the UK from either Ireland, Guernsey, Jersey or the Isle of Man.

Permission to enter may be refused if the person seeking entry is required under the rules to obtain an Electronic Travel Authorisation before travel to the UK, and the person does not hold the required ETA on arrival in the UK

The ETA application process will open on 25 October 2023 only for Qatari nationals who intend to travel to the UK on or after 15 November 2023.

The ETA application process will open on 1 February 2024 only for nationals of Bahrain, Jordan, Kuwait, Oman, United Arab Emirates or Saudi Arabia who intend to travel to the UK on or after 22 February 2024.

More countries will be added to the Electronic Travel Authorisation scheme in due course.

A new ‘Appendix Electronic Travel Authorisation’ in the Immigration Rules will set out details of the new ETA scheme.

An application for an ETA will need to be made online, using either a specified online form or the mobile application ‘UK ETA’.  Applicants will need to prove their identity and an application fee (yet to be announced) will need to be paid.  Each traveller will need to apply for their own ETA, including children, and a decision on an ETA application should be made within 3 working days, unless further checks are required.

An Electronic Travel Authorisation may be refused or cancelled on various suitability grounds including on grounds of criminality, previous breach of immigration law, false representations and unpaid NHS charges or litigation costs.

An ETA will be valid for 2 years from the date of grant or until the expiry of the holder’s passport used in the ETA application, whichever is sooner.  Travellers who obtain a new passport in less than 2 years will need to apply for a new Electronic Travel Authorisation.

A person holding a valid ETA may make multiple journeys to the UK, for the purpose of seeking permission to enter on arrival as either a Visitor or Creative Worker.  They will still need to either use an ePassport gate (if eligible) or see an immigration officer to enter the UK.

Applicants who are refused an ETA will need to apply for either:

• A Standard Visitor visa to visit the UK;
• A Temporary Work – Creative Worker visa to enter the UK as a creative worker; or
• A Transit visa to transit through the UK.

Introduction of the Innovator Founder Visa route

From 13 April 2023, the Innovator route, which makes provision for overseas nationals seeking entry for the purpose of establishing an innovative business, will be replaced by the Innovator Founder route. The Innovator Founder route will be a route to settlement in the UK.

A new Appendix Innovator Founder will make provision for a person seeking to establish a business in the UK based on an innovative, viable and scalable business idea they have generated, or to which they have significantly contributed.

The new Innovator Founder route will remove the £50,000 minimum investment funds requirement that is currently a requirement for those coming to the UK to establish an innovative business via the Innovator Visa route.  The rationale behind this is to make more flexible provision for those with a genuine proposal for an innovative business and sufficient funds to deliver it.

Applications for an Innovator Founder Visa will need to be supported by an endorsement letter from an endorsing body (or a legacy endorsing body if the letter of endorsement was issued before 13 April 2023 or the applicant previously had permission under the Start-up route and the endorsing body for that previous permission was the same).

Individuals applying for an Innovator Founder Visa will need to be awarded 70 points.  In an application for entry clearance as an Innovator Founder based on a new business idea, applicants will score 30 points for satisfying a business plan requirement, 20 points for satisfying a requirement to have a business venture that is innovative, viable and scalable, 10 points for demonstrating English language at CEFR level B2 and 10 points for satisfying a financial requirement.

The letter of endorsement will need to confirm that the applicant satisfies the business plan requirement and the requirement to have a business venture that is innovative, viable and scalable.

In order to satisfy the business plan requirement, applicants will need to have a business plan and have either generated or made a significant contribution to the ideas in that business plan. They will also need to demonstrate that they will have a day-to-day role in carrying out the business plan and confirm that they will have at least two Contact point meetings with the endorsing body at regular intervals during their period of permission.  They will also need to be either the sole founder or an instrumental member of the founding team.

In order to satisfy the innovative, viable and scalable business requirement for an Innovator Founder Visa, the applicant must have a genuine, original business plan that meets new or existing market needs and/or creates a competitive advantage.  The applicant’s business plan must be realistic and achievable based on the applicant’s available resources.  The applicant must have, or be actively developing, the necessary skills, knowledge, experience and market awareness to successfully run the business. And, there must be evidence of structured planning and of potential for job creation and growth into national and international markets.

Applicants for an Innovator Founder Visa must have a key role in the day-to-day management and development of the business.

Unless an exemption applies, Innovator Founder Visa applicants must show English language ability on the Common European Framework of Reference for Languages in all 4 components (reading, writing, speaking and listening) of at least level B2.

An applicant who is applying for entry clearance as an Innovator Founder will also need to show that they have at least £1,270 in personal funds held for a 28-day period prior to the date of application.

Innovator Founder visas will be valid for 3 years and, subject to satisfying various additional criteria, Innovator Founders will have the option of applying for settlement at the end of this 3 year period.

The new Innovator Founder route will relax existing restrictions on Innovator migrants engaging in employment outside the running of their business, provided any such secondary employment is in a skilled role (i.e. skilled to at least RQF Level 3).

Closure of the Start-up Visa route

From 13 April 2023, the Start-up route will only be available to those who hold a valid Start-up endorsement issued before the 13 April 2023.

From 13 July 2023, the Start-up route will be closed to all new applications.

Start-up entrepreneurs should keep in mind that the new Innovator Founder route will remove the £50,000 minimum investment funds requirement.  This means that, whereas start-up entrepreneurs without access to this level of funds currently need to apply for a Start-up visa rather than an Innovator visa, from 13 April 2023 they may qualify for an Innovator Founder visa instead.

This in turns means that whereas start-up entrepreneurs are currently issued with a Start-up visa that is valid for 2 years and then need to switch into the Innovator visa route in order to qualifying for indefinite leave to remain after a further 3 years (5 years in total), once the new Innovator Founder route opens, start-up entrepreneurs will be able to qualify for ILR after just 3 years.

Skilled Worker Visa Salary Rates Set To Increase

The general salary thresholds for the Skilled Worker route are set to increase from 12 April 2023.

Full details of all the changes to the Skilled Worker visa salary rates are set out in our separate post here.

Updates to the Global Talent routes

Various amendments are being made to the Global Talent rules, with effect from 12 April 2023.

At the request of Arts Council England, the evidential requirements for an arts and culture endorsement are being amended to:

• Include a CV to assist the endorsing body in understanding what stage the applicant is at in their arts and culture career to date; and
• Include a requirement that exceptional promise applicants must be at an early stage in their career, to mirror a similar requirement in the endorsement requirements for applicants in digital technology and science, engineering, humanities, social sciences and medicine. This is to clarify that applicants at later stages of their careers should apply under the exceptional talent endorsement criteria.

The requirements for film and television applicants are being amended to clarify that an applicant who cannot evidence that they have won or been nominated for a “main award” (Academy Award, BAFTA, Golden Globe or Emmy) needs to evidence all of international distribution sales, media recognition and a combination of Notable Industry Recognition awards to be endorsed under the notable industry recognition pathway.

The requirements for fashion designers are being amended to correct an error which prevented the consideration of a nomination or place on a shortlist for an international award for excellence. This was erroneously removed during a previous amendment of the requirements.

The descriptions of the disciplines covered by the British Academy, Royal Academy of Engineering and Royal Society have been amended in the Rules to clarify that these include social sciences as well as science, engineering, humanities and medicine fields.

The following evidential requirements for the full peer review pathway are also being amended:

• The option for an applicant to demonstrate they are a member of a UK or a foreign national academy is being removed;
• The option for an applicant to demonstrate they have been awarded an internationally recognised prize is being removed;.
• All peer review exceptional talent applicants are to be required to provide an academic assessment of their skills and experience in the relevant sector;
• The requirement that peer review exceptional promise applicants need to have been awarded or have held a UK based research fellowship, international fellowship or advanced post is being removed..

Changes are also being made to the letter of recommendation criteria for both the science, engineering, humanities, social and medicine fields and the digital technology peer review routes.  As authors of these letters of recommendation cannot be definitive about what contributions an applicant will make in the UK in their chosen field, they will only be required to provide details of what impact the applicant will be expected to make.

Finally, an update of the Global Talent settlement requirements is being made to allow time spent as a Representative of an Overseas Business to be included as part of the 3 or 5 year continuous period.

Introduction of a new Appendix Adult Dependent Relative

On  1 June 2023, a new Appendix Adult Dependent Relative will replace existing provisions for Adult Dependent Relatives in Appendix FM of the Immigration Rules.

The new Appendix Adult Dependent Relative will be drafted in a simplified format, in line with the recommendations of the Law Commission in its report “Simplifying the Immigration Rules”.  However, In terms of substantive changes, there are few.  Importantly, applicants will still need to meet the high threshold of requiring long-term personal care to perform everyday tasks due to age, illness or disability. This care must also still be either not available or not affordable in the country where the applicant is living.

The main change to note is that the rules in Appendix Adult Dependent Relative will be  updated to align with the wider approach to suitability at settlement on Article 8 human rights routes. Where the applicant is applying for entry clearance or permission to stay, they may be refused if they fail certain suitability grounds in relation to serious criminality. An applicant will also need to complete a longer qualifying period before being able to settle (in country) if they fail certain suitability grounds (e.g, 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.

The new rules are also being clarified to make clear that a maintenance undertaking may be required to be signed by the sponsor at entry clearance, permission to stay and settlement.

The ADR Rules evidence requirements in Appendix FM-SE are being removed and, where appropriate, will be incorporated into guidance.

Changes to the Long Residence rules

The 10 years long residence route to indefinite leave to remain (ILR) provides a route to settlement based on continuous lawful residence in the UK for a period of 10 years.

The current definition of what constitutes lawful residence in the long residence rules has led to confusion for applicants and a broader interpretation than was intended. Changes are therefore being made to the definition of “lawful residence” in paragraph 276A(b) of the Immigration Rules to make it clear that time spent with precarious status or on a route which allows for a maximum grant of permission of 12 months, and where switching is generally not allowed, cannot count towards settlement on the basis of long residence.

With effect from 13 April 2023, “lawful residence’ will be defined as expressly excluding time spent as a visitor, short-term student or on the seasonal worker routes.  Time spent on these routes will not count towards long residence.  Time spent on immigration bail will also not count towards the qualifying period for long residence.

A person who has spent a period of time on immigration bail or as a visitor (or other temporary permission) who is later granted permission on another basis will still be able to qualify for long residence settlement, but they will need to wait longer to do so.

Contact our Immigration Barristers

In this post we have highlighted some of the key changes to the Immigration Rules introduced by Statement of Changes to the Immigration Rules (HC1160), published on 9 March 2023.

For expert advice in relation to a UK visa application or immigration appeal, contact our immigration barristers on 0203 617 9173 or complete our enquiry form below.