Chapter 10

10.1 Visitors

On 26th June 2008 the government published its response to the Consultation on Visitors. The plans announced in that document were to:

Institute new sub-categories of visitor visa
Retain the six month limit for tourist visas
Expand the system of three month group tourist visas, introduced for China, with the next possible country being India
Develop further detailed proposals for an events visa, which would be shorter term and cheaper than a tourist visa.
Clarify the parameters of activity permitted for a business visitor
Introduce visit visas for sportspeople and entertainers
Categories of visitor who presently are subject to specific rules (e.g. private medical, marriage, parents of a child and school and children) will be brought together in a category of special visitor, probably to include academic visitors
Family visitors will require a sponsor. Sponsors will need to be licensed and will be subject to penalties if they 'do not comply with their duties to ensure the person they sponsor goes home when they should'. The civil penalty regime will be modelled on that for employers.

On 11th November 2008 rules were published (HC1113) laying down new categories of

General visitor
Business visitor
Sports visitor
Entertainer visitor

A new designation of ‘special visitor’ is created for the present categories of child visitor, visitors for private medical treatment, marriage visitors, those visiting as parents of a child at school, student visitors, prospective students and visitors in transit. No repercussions of being designated a ‘special visitor’ have yet been published and the existing rules remain in force for these groups.

Most visit visas remain limited to 6 months. The exceptions are: academic visitors, who come within the business visitor category and may be granted 12 months; doctors coming to the take the Professional and Linguistic Assessment Board (PLAB) test, who are granted an initial 6 months but who may extend up to 18 months to pass the test; parents of a child at school who may be granted 12 months; visitors in transit who are given 48 hours leave.

Lists of permitted activities are set out for business visitors. The sports and entertainer visit visas are for those who are taking part in competitions or events and to perform various engagements as an amateur. Professional work of this kind would come within Tier 2 of the points-based system (see chapter 11).

10.1.1.4. Intention to leave

The Court of Appeal in NG (Iran) v SSHD [2008] EWCA Civ 312 held that the immigration judge acted lawfully in taking into account the appellant’s application for settlement which had been made five months before her family visitor application but turned down. To do so was not to make the mistake of assuming that an applicant would act illegally, but was a relevant matter in the circumstances which not only could be should be taken into account, though only as one factor contributing towards the decision.

10.2 Students

Student applications are now made within the points-based system, Tier 4. The majority of the former student rules have been deleted, and entry as a student or their dependant is now governed by rules 245ZT to 245ZZD.

Although the scheme is called points-based, it is only so in that a fixed number of points is awarded for fulfilling the essential requirements. Points are not accumulated for a range of qualities or factors. 30 points for ‘attributes’ are required for entry as a student. The crucial requirement for student leave is a ‘visa letter’. This single requirement – ‘visa letter’ – generates an award of 30 points for attributes. The rules set out the requirements for the visa letter, including that it is an offer of a place on a course at an approved level, made by an institution that has a sponsor licence. The content of the letter must meet requirements issued by the UKBA in guidance. The applicant must supply any documentary evidence that they supplied in order to obtain the offer of a place. If the letter meets these and all the requirements listed in the rules and in Appendix A to the rules and in guidance issued to the educational institution, the applicant is awarded 30 points. If not, they are not. There is no provision for the award of fewer points.

In addition to 30 points for the visa letter a student applicant must achieve 10 points for maintenance. These are obtained by showing that the applicant has available to them the full cost of their course fees for the first year (or the whole course, if its duration is 12 months or less), and £600 per month for the duration of the course up to nine months, or £800 in London. Without being able to show this, the 10 points are not awarded. The availability of such sums can be shown by producing a letter from an official sponsor, or bank statements. If relying on bank statements, the money must have been in their account for 28 days before the application. The criteria for when money is deemed to be available are set out in UKBA guidance.

The subjective criterion of intention to leave at the end of studies is abolished.

Section 51 of the Borders, Citizenship and Immigration Act 2009 enables the Secretary of State to attach a condition to a grant of leave to enter or remain ‘restricting studies’. So a person’s leave could be made conditional for instance on attending the course for which they have been given leave, or the institution for which they have been given leave.

10.2.6 Extensions of stay

The Court of Appeal in GO-O, EO, WA, HZ, AM, KM, TG, AG v SSHD [2008] EWCA Civ 747 resolved some of the difficulties that arose under the former rules in the interpretation of rule 60(iv) and (v) concerning proof of regular attendance and satisfactory progress. The court held that leave as a student is leave in that capacity, not attached to a particular college or university or course. Thus if a student applies for an extension of leave, their attendance and progress may be assessed on the basis of the course for which they are currently registered, even if that is not the one for which they originally obtained leave to enter or remain. It was not essential, the court said, for a student to pass all exams. Performance in examinations would be a factor taken into account in evaluating progress, but if a student had not sat or had failed examinations for reasons such as bereavement or illness, this must be taken into account, as must all the circumstances of their progress as a student.

10.3 Au pairs

This category is deleted from the rules with effect from 27th November 2008.

10.4 Working holidaymakers

This category is deleted from the rules with effect from 27th November 2008. The idea of a scheme for Commonwealth young people to travel seems to be absent from the new rules. The nearest equivalent is a Youth Mobility scheme in Tier 5 of the points-based system, which allows two years of leave to a person who can score 40 points on their age, qualifications and earnings and who has £800 or an A-rated sponsor (see update on chapter 11). They must be a British Overseas Citizen, British Overseas Territories Citizen or a British National (Overseas) or a national of Australia, Canada, Japan or New Zealand. These countries, according to the explanatory notes to the statement of rules, have entered into reciprocal arrangements with the UK, and places are subject to a quota. Youth Mobility Scheme migrants will be able to work for as much of their stay as they wish, with certain limits on self-employment and professional roles. Much of the case law on this issue has concerned migrants from less affluent countries than those which are now in the scheme.

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