Jersey Immigration Rules: Notice of changes

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A decision made on 6 July 2020

MINISTERIAL DECISION REFERENCE: MD-HA-2020-0044
Decision Date: 3rd July 2020
DECISION SUMMARY TITLE: Notice of changes to the Jersey Immigration Rules: (i) Jersey EU Settlement Scheme – amendment of Appendix EU(J) and Appendix EU(J) (Family Permit) (ii) General grounds for refusal of entry clearance, leave to remain etc. – substitution of Part 9
DECISION SUMMARY AUTHOR:	Head of Service Customs & Immigration	IS THE DECISION SUMMARY PUBLIC OR EXEMPT? (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
REPORT TITLE: Proposed changes to the Jersey Immigration Rules: (i) Jersey EU Settlement Scheme – amendment of Appendix EU(J) and Appendix EU(J) (Family Permit) (ii) General grounds for refusal of entry clearance, leave to remain etc. – substitution of Part 9
REPORT AUTHOR OR NAME OF PERSON GIVING REPORT: (if different from Decision Summary Author)	Head of Service Customs & Immigration	IS THE REPORT PUBLIC OR EXEMPT (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
DECISION AND REASON FOR THE DECISION: The Minister for Home Affairs has approved amendments to the Jersey Immigration Rules (“the Rules”) in accordance with section 1(4A) of the UK Immigration Act 1971, as extended to Jersey.[1] These amendments concern the following provisions of the Rules: (i) Appendix EU(J) and EU(J)(Family Permit) relating to the Jersey EU Settlement Scheme; and (ii) Part 9 which sets out the general grounds for the refusal of entry clearance/leave to enter/remain in Jersey. (i) The EU Settlement Scheme The changes reflect a recent updating of the UK Settlement Scheme.[2] The changes keep the criteria for settled status under the Jersey Scheme consistent with the criteria for settled status in the rest of the Common Travel Area, by – deleting spent provisions for a ‘no deal’ scenario reflecting case law concerning extended family members recognising residence documents issued in the UK under transitional provisions and in line with the Withdrawal Agreement. (ii) General grounds for the refusal of entry clearance etc. Part 9 is replaced in amended form so that – Part 9 is consistent with the provisions of the Jersey Settlement Scheme relating to refusal of applications Part 9 takes account of Appendix V of the Rules which now governs control of entry to Jersey as a visitor references to the States of Jersey are replaced with references to the Government of Jersey entry clearance may be refused for failure to pay previous litigation costs awarded to the Minister leave to remain may be curtailed to a dependant of an asylum applicant where the asylum applicant’s claim has failed it is clear how to calculate a period of overstaying where an application for leave to remain was made during that period or a review was pending, or where the overstaying arose from a decision of the Minister, and the grounds, on which a person who holds an entry clearance may be refused leave to enter, are not confined to fraud, bad character or change of circumstances.
RESOURCE IMPLICATIONS: None as a consequence of this decision.
ACTION REQUIRED: To make the appropriate amendments to the provisions of the Jersey Immigration Rules referred to in the attached report and to come into effect on the day the Ministerial Decision is signed. The updated Rules will then be made available on gov.je.
SIGNATURE:			POSITION: Connétable Len Norman Minister for Home Affairs
DATE SIGNED:			EFFECTIVE DATE OF THE DECISION:

Jersey Immigration Rules: Notice of changes

Justice and

Home Affairs

Customs and Immigration Service

Report

To: Minister for Home Affairs

Submitted By: Mark Cockerham

Head of Service

Customs & Immigration

Date: 3rd July 2020

Subject:

Proposed changes to the Jersey Immigration Rules:

(i) Jersey EU Settlement Scheme – amendment of Appendix EU(J) and Appendix EU(J) (Family Permit)

(ii) General grounds for refusal of entry clearance, leave to remain etc. – substitution of Part 9

There is a need to make amendments to the Jersey Immigration Rules (“the Rules”).

Introduction

(i) Jersey EU Settlement Scheme

The withdrawal of the UK from the EU and the eventual ending of free movement mean that EEA and Swiss nationals in Jersey must apply under Jersey’s EU Settlement Scheme if they still wish to live in the Island.

The Settlement Scheme is contained in Appendix EU(J) to the Jersey Immigration Rules and Appendix EU(J)(Family Permit) which together provide the basis to apply for the necessary Jersey immigration status (“settled status”).

(ii) Part 9: General grounds for refusal of entry clearance, leave to remain etc.

Unrelated to the EU Settlement Scheme, Part 9 of the Rules sets out the general grounds for the refusal of entry clearance/leave to enter/remain in Jersey.

The proposed amendments

(i) Jersey EU Settlement Scheme

The eligibility criteria for settled status need to be consistent throughout the Common Travel Area. For this reason, the criteria for applicants under the Settlement Scheme need to mirror the criteria under the Settlement Scheme as set out in the UK Immigration Rules.

Amendments to the Scheme are therefore needed to reflect amendments recently made to the UK Immigration Rules.[1] The amendments may be summarised as follows –

(a) To delete provision previously made for a ‘no deal’ scenario.

(b) To reflect case law [2] concerning which extended family members are able to reside with an EEA citizen (to include a child under 18 subject to a non-adoptive legal guardianship order in favour of an EEA citizen).

(c) To include in the Scheme certain non-EEA nationals issued with a residence document in the UK (under transitional provisions for a family member of a British citizen with dual UK/EEA nationality)[3] and in other respects to ensure that applicants under the Settlement Scheme are able to rely on residence documents in all respects line with the Withdrawal Agreement.

(ii) Part 9: General grounds for refusal of entry clearance etc.

Part 9 needs to be revised extensively in the light of changes to other provisions of the Rules. The amendments are of such nature that it is proposed that Part 9 be replaced.

The resulting amendments may be summarised as follows –

(a) To make Part 9 consistent with the wording of provisions in –

(i) the Settlement Scheme relating to refusal of applications; and

(ii) Appendix V governing visit visas/leave to enter Jersey as a visitor.[4]

(b) To replace several references to the States of Jersey with references to the Government of Jersey.

(c) To make it a ground of refusal of entry clearance that an applicant has failed to pay previous litigation costs awarded to the Minister.

(d) To provide that leave to enter/remain may be curtailed in the case of a dependant of an asylum applicant where the asylum applicant’s claim for asylum has failed.

(e) To clarify how a period of overstaying is to be calculated in cases where a person applied for leave to remain during that period or where a related review was pending, or where the overstaying arose from a decision of the Minister.

(d) To delete paragraph 321 which limits the grounds [5] on which a person who holds an entry clearance may be refused leave to enter (the same paragraph having been deleted in the UK immigration rules).

Recommendation

It is recommended that the Minister for Home Affairs issue directions, in pursuance of section 1(4A) of the Immigration Act 1971, as extended to Jersey, that the Jersey Immigration Rules are amended accordingly.

Mark Cockerham

Head of Service

Customs & Immigration

Official

[1] on 06 April 2020

[2] see Supreme Court judgment in SM (Algeria) http://www.bailii.org/uk/cases/UKSC/2018/9.html

[3] This concerns residence documents issued to persons affected by the judgment in McCarthy [Case C-434/09 McCarthy] which held that a derived right of residence cannot be obtained if the dual-national EU citizen in question has always resided in one member state and has never exercised their free movement rights.

[4] Appendix V (recently inserted) sets out the types of visitor routes depending on the purpose of the visit

[5] i.e. fraud, bad character or change of circumstances