ILPA regarding the closure of the Tier 1 Investor Visa

On 18 February 2022 the Immigration Law Practitioners’ Association sent an open letter to the Home Office with regard to the recent closure of the Tier 1 Investor visa category with immediate effect.

In particular, the Immigration Law Practitioners’ Association wrote the following in their letter, which is now pending with the Home Office and subject to their response or comments:

On 17 February 2022, without prior warning, you tweeted, ‘We have closed the Tier 1 Investor visa with immediate effect following our review of all those granted’. The Home Office confirmed this in a news story.

A Statement of Changes to the Immigration Rules was published online suddenly on 17 February 2022 at 4:04pm, and took effect four minutes earlier at 4:00pm on that same day. We received no advanced notice of your intention to close the route, other than reports in the press citing Government officials, and there was no formal public consultation regarding these changes. We understand the reason for this is that you did not wish to signal closure of the route. The Statement of Changes also departs from the convention that changes to the Immigration Rules come into force no earlier than 21 days after being laid in Parliament. We understand that you have departed from proper legislative practice for an instrument subject to the negative procedure, as it was ‘anticipated that closure of the route with 21-days’ notice, or less, would trigger a “closing down sale” effect, involving a very substantial upturn in application levels in advance of closure.’

This is also not the first time that such action has been taken, to which we have objected. In 2018, we corresponded with your Department regarding the legality of a decision taken to suspend the Tier 1 (Investor) visa on 7 December 2018, which was done with less than 24 hours notice, and without change to the Immigration Rules. That decision was subsequently reversed. However, this is a sudden decision to close a long-established route which has existed since 1994, and was brought within the points-based system in 2008.

Thus, we cannot understand why this change to the Tier 1 (Investor) route is being made without any prior notice in February 2022. We understand from the Explanatory Memorandum that you have concerns regarding the movement of illicitly obtained wealth, and there is media scrutiny and Parliamentary scrutiny. There is no current alternative category for applicants to commence on a route for investment-related migration to the UK, following the closure of the Tier 1 (Entrepreneur) route in 2019.

Those who had instructed representatives to prepare their applications or made other arrangements with a view to moving to the UK may be left out of pocket, with no way to enter or remain in the UK. There is a real human impact in the closure of any route, particularly when there is no alternative.

Accordingly, we have three requests.

First, for a time-limited period of 21 days, will your Department accept discretionary initial Tier 1 (Investor) applications to be judged against the Rules in place on 16 February 2022? This would assist to undo the adverse impact of the failure to respect the 21-day rule, and avoid any unfairness to applicants who were close to submission at the time of the route’s closure.

Second, we seek assurance that cases currently under consideration will be assessed in line with the Rules on the date of application.

Third, in the future we must respectfully request that there is sufficient notice to representatives and potential applicants prior to such substantive changes in the Rules, and we must stress the constitutional importance that we see in laying changes to the Immigration Rules at least 21 days before they take effect.

We will be monitoring this topic and will publish a response or comments from the Home Office as soon as they are provided.