Immigration Fees (Jersey) Order 2017: Amendment: Law drafting instructions

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A decision made on 15 January 2021

MINISTERIAL DECISION REFERENCE: MD-HA-2021-0004
Decision Date: 7 January 2021
DECISION SUMMARY TITLE: Amendment of Immigration (Fees) (Jersey) Order 2017
DECISION SUMMARY AUTHOR:	Senior Manager Immigration and Nationality	IS THE DECISION SUMMARY PUBLIC OR EXEMPT? (if exempt state the relevant article/paragraph of the Freedom of Information Law/Regulations)		Public
REPORT TITLE: Immigration Fees (Jersey) Order – Amendment
REPORT AUTHOR OR NAME OF PERSON GIVING REPORT: (if different from Decision Summary Author)	Senior Manager Immigration and Nationality	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 requested that drafting be undertaken to amend the Immigration (Fees) (Jersey) Order 2017 (“the 2017 Order”) for the following purposes: It is necessary to make provision for fees in respect of applications for persons to apply for leave to remain under Appendix HK(J) British National (Overseas) which was recently added to the Jersey Immigration Rules [1]. To update the definition of ‘dependant’ in the 2017 Order so that it is consistent with the Jersey Immigration Rules. Accordingly, the Legislative Drafting Office is asked to prepare the necessary amendments to the Immigration (Fees) (Jersey) Order 2017 pursuant to sections 67A, 67 and 67C of the Immigration Act 2014 as extended by the Immigration (Jersey) Order 2016. The changes are to come into force on 31 January 2021. The Minister has previously obtained the approval of the Minister for Treasury & Resources (Ref: TR-2011-DD92) to align immigration fees in Jersey with those in the United Kingdom.
RESOURCE IMPLICATIONS: There are no financial or manpower implications arising from this decision.
ACTION REQUIRED: The Senior Manager Immigration and Nationality to instruct the Principal Legislative Drafter to prepare the required Order
SIGNATURE:			POSITION: Connétable Len Norman Minister for Home Affairs
DATE SIGNED:			EFFECTIVE DATE OF THE DECISION:

Immigration Fees (Jersey) Order 2017: Amendment: Law drafting instructions

Minister for Home Affairs

Ministerial Decision

Immigration Fees (Jersey) Order – Amendment

British National (Overseas) citizens ordinarily resident in Hong Kong

Under powers conferred by the fees provisions of the Immigration Act 2014, as extended by the Immigration (Jersey) Order 2016, the Minister made the Immigration (Fees) (Jersey) Order 2017 and several subsequent Orders as follows:

Immigration (Fees) (Jersey) Order 2017	R&O.53/2017	19 May 2017
Immigration (Fees) (Amendment) (Jersey) Order 2018	R&O.61/2018	1 June 2018
Immigration (Fees) (Amendment No. 2) (Jersey) Order 2019	R&O.2/2019	15 January 2019
Immigration (Fees) (Amendment No. 3) (Jersey) Order 2019	R&O.8/2019	7 February 2019
Immigration (Fees) (Amendment No. 4) (Jersey) Order 2019	R&O.71/2019	7 August 2019

The 2017 Order requires to be amended further to carry into effect the established policy of aligning the level of the relevant Jersey immigration fees with the level of the relevant United Kingdom immigration fees.

A new category of fee is required to be specified in respect of applications under “Appendix HK(J) British National (Overseas)”. This Appendix was recently added to the Jersey Immigration Rules [1] at the same time as an equivalent Appendix was added to the United Kingdom Immigration Rules. It enables persons as from 31 January 2021 to apply for leave to enter or remain in Jersey as a –

“BN(O) Status Holder” or

“BN(O) Household Member.

The BN(O) Status Holder route: This is for a British National (Overseas) citizen who is ordinarily resident in Hong Kong and wants to live and work in Jersey. A dependent partner and a dependent child of a British National (Overseas) citizen can, if they are ordinarily resident in Hong Kong, apply under this route. In exceptional circumstances, other family members with a high degree of dependency may also apply.

The BN(O) Household Member route: This is for the adult child, born on or after 1 July 1997, of a BN(O) citizen. The BN(O) Household Member, and any dependent partner or child applying under this route must be ordinarily resident in Hong Kong and form part of the same household as the British National (Overseas) citizen.

The Hong Kong British National (Overseas) routes are both routes to settlement.

The brief to the Legislative Drafting Office is for amendments to Article 2(2) of the 2017 Order to be prepared so that the following fees apply as from 31 January 2021 –

(a) £180 for an application in respect of a person seeking leave to remain for a period of 30 months as a –

(i) BN(O) Status Holder, or

(ii) BN(O) Household Member

under Appendix HK(J) British National (Overseas) to the Jersey Immigration Rules

(b) £180 for an application in respect of a dependant of a person mentioned in paragraph (a)

(i) BN(O) Status Holder, or

(ii) BN(O) Household Member

under Appendix HK(J) British National (Overseas) to the Jersey Immigration Rules

(d) £250 for an application in respect of a dependant of a person mentioned in paragraph (c)

Meaning of “dependant”

By way of a supplementary matter, in preparing the drafting brief, it has become apparent that the definition of “dependant” in Article 1 of the 2017 Order (read with the definition of “spouse”) is out of date. The definition has become inconsistent with provisions now contained in the Jersey Immigration Rules referring to spouses and civil partners and persons who have been living in a relationship akin to marriage or civil partnership for at least two years.

The equivalent definition has been updated in the Immigration and Nationality (Fees) Regulations 2018 of the United Kingdom, so that "dependant" in respect of a person ("P") means —

(a) the spouse or civil partner of P;

(b) someone who has been living with P in a relationship akin to a marriage or civil partnership for at least two years; or

(c) any other person whose entitlement to make an application referred to in [the Regulations] arises by virtue of a connection between that person and P.

The same widening of the definition of “dependant” (and deletion of the definition of “spouse”) is required in Article 1 of the 2017 Order.

Recommendation

The Minister for Home Affairs is recommended to direct the Customs and Immigration Service to forward instructions to the Legislative Drafting Office to draft amendments of the 2017 Order –

so that Immigration fees as set out in 4. above apply under Article 2(2) of the 2017 Order as from 31 January 2021, and

so as to replace the definition of “dependant” (and to delete the definition of “spouse”) in Article 1 of the 2017 Order as set out in 6. above.

Senior Manager Immigration and Nationality

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[1]https://www.gov.je/SiteCollectionDocuments/Government%20and%20administration/JSY%20Immigration%20Rules%20061219.pdf