Важные судебные решения и новости для иммигрантов

[British Lawyer]

15 November 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Supreme Court decides meaning of “precarious immigration status” and “financially independent”: https://www.bailii.org/uk/cases/UKSC/2018/58.html

 

The Supreme Court has allowed the appeal in the case of Rhuppiah v Secretary of State for the Home Department [2018] UKSC 58. Giving the sole judgment, Lord Wilson holds that a “precarious” immigration status is any status short of Indefinite Leave to Remain but allows the appeal on the basis that “financial independence” means not having recourse to public funds.

 

The Supreme Court also affirms that human rights cases can succeed outside the statutory scheme introduced by the Immigration Act 2014, which allows judges some flexibility when deciding human rights cases.

[British Lawyer]

16 November 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> UKVI Guidance: EU Settlement Scheme: evidence of UK residence: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence?utm_source=5cf77b59-7644-4c04-93aa-b26970700a5f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

How to provide evidence that you’ve been living here if we can’t confirm this through an automated check of UK tax and benefits records. This has been updated to define P45s and P60s.

 

>>> UKVI Guidance: EU Settlement Scheme: apply for an administrative review : https://www.gov.uk/guidance/eu-settlement-scheme-apply-for-an-administrative-review?utm_source=411fcde2-9d1c-4cab-900f-e39494ea3146&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

How to apply for an administrative review under the EU Settlement Scheme.

 

>>> UKVI Guidance: EU Settlement Scheme: ID document scanner locations: https://www.gov.uk/government/publications/eu-settlement-scheme-id-document-scanner-locations/locations-offering-chip-checker-services

 

Locations where you can go to get your biometric ID document scanned if you do not have an Android device with near field communication (NFC).

 

>>> UKVI Guidance: Using the ‘EU Exit: ID Document Check’ app: https://www.gov.uk/guidance/using-the-eu-exit-id-document-check-app?utm_source=5231bec0-2c82-428b-9bb8-ea6f7ea937c7&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

Information for EU citizens taking part in the pilot for the EU Settlement Scheme.

 

>>> UKVI Guidance: EU Settlement Scheme pilot: applicant information: https://www.gov.uk/government/collections/eu-settlement-scheme-pilot-applicant-information?utm_source=9f086ca6-b571-40ec-85fd-80d1c5781d5a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

Information for applicants to the EU Settlement Scheme during the pilot running from 1 November to 21 December 2018 has been updated to add links to using the EU Exit ID Document Check app, ID document scanner locations and administrative review guidance.

[British Lawyer]

20 November 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Immigration Health Service Charge Cost to double from December 2019

The Government announced on 11 October 2018 that Immigration Health Surcharge (IHS) will be doubling from December 2018 (subject to Parliamentary approval). For Tier 4 students and Tier 5 (Youth Mobility Scheme) migrants this will increase from £150 to £300 and for all other IHS-related immigration categories, the fee will increase from £200 to £400 per applicant per year.

>>> The new Immigration System – UK BA (Sopra Steria) – file uploads issues

The reports are pouring in that despite applicants uploading all the documents via the dedi-cated web-site before the UK BA appointments, often the UK BA does not receive all the attachments. Therefore the applicants must bring all the original documents with them in case the documents need to be re-scanned.

Otherwise the (Premium Lodge) appointment times can range from 45 mins to 4 hours, as reported by the clients and colleagues.

>>> Allocations of restricted certificates of sponsorship – November 2018: https://www.gov.uk/…/allocations-of-restricted-certificates…

The November allocation meeting took place on 12 November. All valid applications received by 5 November were successful if they scored at least 21 points.

[British Lawyer]

21 November 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Court of Appeal: Wikipedia can (but shouldn’t) be used to prove foreign law: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2483.html

 

In the case of KV v Secretary of State for the Home Department [2018] EWCA Civ 2483 the Court of Appeal accepts that future statelessness is a relevant consideration in an appeal against deprivation of British citizenship obtained on the basis of fraud. The court also gives guidance on the nature of an appeal against deprivation of citizenship, holds that the burden of proof for proving future statelessness rests with the appellant and holds that Wikipedia is (just about) an acceptable source for proving foreign law.

 

The appellant had been a Sri Lankan national and successfully claimed asylum in the United Kingdom in the 1990s. He later naturalised as a British citizen in 2007. But in doing so, KV concealed the fact that he had already successfully applied for settlement and naturalisation in the assumed identity of another Sri Lankan national.

 

>>> UKVI Guidance: EEA nationals qualified persons: https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons?utm_source=35a737a0-90aa-4f39-981f-b6455ae94fcf&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

Guidance on European Economic Area (EEA) national qualified persons.

 

Changes made to clarify the policy and required caseworker process in relation to assessing continuous residence of a qualified person.

 

>>> UKVI Guidance: Apply to become a permit-free art or music festival: https://www.gov.uk/government/publications/apply-to-be-on-the-list-of-permit-free-festivals?utm_source=a23930f8-bdd6-4ffb-977a-ab7d1072bb48&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

How to apply to get on the list of permit-free art and music festivals.

 

Updated contact information and evidence list

 

 

 

[British Lawyer]

21 November 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> UK BA answers in relation to the New Front End services aka “the New Immigration System”

 

1. Existing on-line applications

 

Q: Will the existing online application system still be offered without using Sopra Steria?

 

A: Yes, until 29th November. After this, customers who are required to use UKVCAS must do so. Other customers will continue to use existing services until the SSCs open in January 2019.

 

Q: Can we continue with an application that has already been started online before the new system was set up?

 

A: Yes, any applications started before the implementation of UKVCAS can still be continued. The customer will just be returned to where they were on the form.

 

Q: Currently, FLR(M) applications are not included in the new Sopra Steria appointments until January when the Service Support Centres will be open. How are FLR(M) applicants supposed to submit their applications between now and then?

 

A: For some routes, including FLR(M), the online application form will take account of the customers’ specific circumstances and will guide them to the centre they need to attend to complete their application. It will be made clear during the online application if they will be using the SSC or UKVCAS centres and will only be allowed to book an appointment at the appropriate centre.

 

From 29 November 2018, when the current PSCs close, until 8 January 2019 there will be limited appointments available in the PSCs for those not able to use UKVCAS applying online for leave based on family life or private life who choose UKVI’s 24- hour decision service. During your application you will be advised about which services you are able to use.

 

2. On demand service

 

Q: Can the on-demand service be used with the Super Priority service too (24-hour processing time) or is it only in combination with the Standard and Priority Decision services (5 to 10 working days)?

 

A: The customer will still have the option to choose a Super Priority Service along with the on-demand service, should they wish to do so.

 

Q: Can the on-demand service be used for Tier 1 Investor (extension), ILR as Tier 1 Investor (standard route), ILR as Tier 1 Investor (accelerated settlement route), Tier 1 Entrepreneur (extension), ILR as Tier 1 Entrepreneur (standard route), ILR as Tier 1 Entrepreneur (accelerated settlement route)?

 

A: The on-demand service will be available to all customers who use the UKVCAS route. The on-demand service is a separate offering, delivered by the UKVCAS supplier whereas the Super Priority/Priority services are delivered by UKVI. Where Priority and Super Priority services are available to an application type, they can be purchased for submission at an on-demand service.

 

A: Is there a set period of time to submit the supporting evidence/documents in advance of the on-demand appointment?

 

A: The (£10 500, old style) Super Premium Service will be discontinued at the end of the transition period to UKVCAS. Customers who previously used the Super Premium Route will now apply online and choose and pay for their case consideration time (service standard).

 

Once payment is taken the customer will be directed to book an appointment with our Commercial Partner Sopra Steria. Once in the Sopra Steria booking system customers will have a range of appointment types.

 

The documents can be uploaded at the time of the submission or ahead of submission via self-upload.

 

Standard Service – 8 weeks for limited leave applications and 6 months for Indefinite leave applications, Citizenship and EEA. All standard applications are measured from date of application.

 

Q: Is there a maximum number of applicants that can be included at an on-demand appointment? And also, a maximum number of dependants?

 

A: On Demand VIP price includes up to 10 applicants. On Demand pop up is to cover more than 10 applicants and single applications.

 

Q: Can main applicants share the appointment cost (i.e. share the total which is "from £9,100")?

It must be paid in one payment. Can all application types use VIP appointments?

 

A: Yes as long as under the UKVCAS remit

 

3. Tier 1 investors and entrepreneurs

 

Q: Can Tier 1 Investors and Entrepreneurs use the Priority Decision and Super Priority Ser-vices (even when not using the on-demand service)?

 

A: Tier 1 Investors can be considered for a standard service (8 week) and Priority Service 10 day under the new arrangements. T1 Entrepreneurs can be considered for a standard service (8 week).

 

4. Naturalisation applications

 

Q:Quicker decisions for nationality applications. Will the system offer a decision within 10 days or even 24 hours?

 

A: We have concentrated on delivering the new and innovative service to match existing premium service offerings. We recognise that there is some interest in a premium offering for citizenship applications. We will re-visit this in the new financial year. Any premium service is likely to offer a 10 day turn around. The fee for that service is still to be agreed. We are scoping a citizenship priority offering. We hope to launch an offering during 2019. Whilst this will offer a substantially quicker experience than the current six-month service standard, we do not envisage that this will be a 24-hour offering.

 

Q: For those applicants who are making an application for British Nationality/Citizenship, will they also need to attend an appointment to submit their original documents and certified copies, such as their passports and referee declaration forms, as is the case with the National-ity Document Return Service?

 

A: Yes, applicants will still need to attend a UKVCAS appointment with their documents (unless they can self-upload) and to lodge biometrics.

 

Q: Naturalisation applications – is there a plan for a joint passport/naturalisation application in the near future?

 

A: The Joint Citizenship and Passport application process is an innovative example of customer service. We are keen to deliver this in the new Service Centres and expect to be able to do so in the first quarter of 2019. As you know as we move through the transition period and launch of our new front-end mechanics across UKVI there will be a brief hiatus for the JCAP offering. We hope to recommence the offering early in 2019.

 

5. European passport returns service

 

Q: Can you confirm whether this applies to the European passport return service as well? Permanent Residency applications are listed under the new Front-End Service – will this service replace the European passport return service and whether there will be a Priority Decision service or Super Priority service available for this application ?

 

A: There have been no decisions to stop the EPRS service and European Casework do not offer Priority or Super Priority services

 

6. Costs of services

 

Q: Regarding the Enhanced Service points (e.g. the ones opening in London in w/c 19th Nov – Stratford, Wimbledon, Victoria, Shepherds Bush etc), will there be a cost for using these centres and if yes what will the cost be?

 

A: Yes, standard non-prime time (10-4) appointments are £60, but out of these hours will be £100. Weekend appointments are £125.

 

7. Booking appointments

 

Q: How do we book the Super Priority Service? Can this be done using the new system or do we need to continue call/email the HO.

 

A: Super Priority is chosen when the customer is completing their application form via Access UK.

 

8. Application dates

 

Q1. Is the date of the application the date it is submitted online or the date of attending the appointment?

 

A1: The date of application is the date the customer submits the application online. There must be an appointment available within 5 working days.

 

Q2: Given that the date of application for an online application is the date it is submitted using the online process, and an applicant for indefinite leave to remain should not make their application more than 28 days before their qualifying period is completed, what information is the Home Office providing to stop applicants from applying too early?

 

A2: We allow customers to start filling in their form in advance, so they can have time to gather information and evidence. We encourage customers to read the guidance which ex-plains that they should not submit settlement applications more than 28 says before their qualifying period is completed. We always welcome feedback on how to improve our forms and the information we provide customers. PO and policy are looking in to this issue to see where best to add some additional guidance to customers.

 

9. Supporting documentation

 

Q1:. Is it enough for us to scan documents and submit with the application, so the applicant will only need to attend an appointment to enrol biometric and not take any original documents?

 

Q2: As documents can now be uploaded electronically, does this mean that electronically generated documents (such as utility bills, etc) can also be accepted in this way?

 

A: The intention of digitising documents is that customers can choose to upload documents ahead of their appointment and electronically generated documents can be used as supporting evidence. Customers will have to continue to bring their original identity document for example passport to the service point however this will be scanned and returned.

 

10. Travel

 

Q: What information is the Home Office/Sopra Steria giving applicants given that they can-not travel after their passports have been returned to them, and are there currently any plans for introducing a travel facility during processing?

 

A: If you are applying for leave to remain, or indefinite leave to remain, you should not leave the UK until you have received a decision on your application. If you travel outside the “Common Travel Area” (CTA) before the decision is made on your application, your application will be treated as withdrawn.

 

The CTA is:

• UK

• Republic of Ireland

• Channel Islands

• Isle of Man

 

If the decision is made while you are outside the UK and your current leave has expired, you will not have a right to return to the UK and you may be refused entry at the UK border.

 

11. Consent

 

Q: Giving consent to the Home Office to verify documents submitted as part of an application ?

 

A: The consent declaration is triggered by a block in the form where applicants are given the declaration to print off and submit. The actual declaration (rather than just a tick on the form) can be found via the hyperlink and is what banks will ask for when we need to verify.

 

12 .Level of service

 

Q: What are the opening times of each centre ? Will any or all of the centres be open on weekends and, if so, will there be an additional charge for booking an appointment on a day on the weekend?

 

A: Sites won’t open of a weekend but in the main all Core sites will and some enhanced sites, there will be an additional charge for the weekend as this is classed as an out of hours appointment and is therefore an AVS.

 

Q: Will there be a Walk-In without an appointment facility as an alternative to next day and same day appointments and, if so, will there be an additional charge for this?

 

A: We offer customers the opportunity to purchase, for an additional fee, a same-day appointment, subject to appointment slots being available and these can be purchased. There is no facility to directly walk-in without an appointment, but the use a self-service terminal or library workstation or premium lounge reception can be used to complete their same-day appointment purchase, subject to available appointment slots.

 

Q: Can the additional services, not including the Standard, Priority and Super Priority services be purchased online prior to the date of an appointment or whether they have to be purchased at the respective centre on the day of the appointment?

 

A: Additional services are either linked to an appointment and are therefore purchased when the customer selects their appointment slot, or can be purchased as extra services either during the appointment booking process or afterwards by logging back in to the UKVCAS web-site. Extra services can be purchased up until the time of an appointment.

 

13. System issues

 

Q: When an application is submitted online using the new system there appears to be no facility to withdraw the application and claim a refund. In cases where the application has been submitted incorrectly and an applicant wishes to withdraw the application to submit a new one and claim a refund, there is no way to do this online. Can UKVI please confirm if there is a facility to withdraw and application and request a refund? If yes, please confirm how we can do this.

 

A: UKVI operations are currently revising the refund/withdrawal process so this is clear un-der the new service, we will share as soon as this is available. You can find further information on how to cancel your application here -https://www.gov.uk/cancel-visa

 

Q: UKVCAS website explained how appointments could be booked out-of-hours, next day, same day etc, but did not give any indication as to processing times. I still don't know whether a same-day appointment leads to a same-day decision

 

A: The speed of the appointment has no effect on the decision making. UKVI offer the priority consideration on Access UK if applicable and customers can choose a faster appointment on Sopra Steria’s appointment booking.

 

14. Appointments and uploading documents

 

Q: When an application is submitted online and appointment is booked and paid for (e.g. an appointment at a Premium Lounge costs £260) there is no facility to reschedule the appointment should the applicant need to change their appointment date. Instead the applicant has to cancel the appointment and loses the additional fee for the appointment. They then have to book a new appointment and potentially pay a new fee for it. Can UKVI please con-firm whether there should be a facility to reschedule an appointment without losing the fee paid and if yes how do we go about rescheduling if required?

 

A: Yes, Sopra should allow the customer to reschedule an appointment for no further cost. UKVI will feed this back to Sopra.

 

Q: Our understanding of the new system is that original documents would not be required to be submitted so unsure why Sopra are insisting on them being taken to the appointment?

 

A: There is no need for customers to bring their evidence to their appointment if they have self-uploaded. The customer will need to bring their passport of travel document to their appointment as this cannot be self-uploaded.

 

We have now done a couple of cases under the new system and having spoken to clients as to what has happened at the appointments, it would appear that the client should take a hard copy application bundle to the appointment with them (in the traditional sense). My clients are feeding back that the officers seem to go through the bundle whilst looking at their computer screen.

 

Q: It would appear that the clients should take a hard copy application bundle to the ap-pointment with them (in the traditional sense) as the officers seem to go through the bundle whilst looking at their computer screens

 

A: We are requesting that documents scanned and uploaded at home are brought to the ser-vice point in case there is an issue with any of the uploaded documents, to avoid inconvenience to the applicant of re submission. We will be keeping this policy under review.

 

There is no requirement for staff to cross-check hardcopy documents against digital copies and this messaging will be reinforced in operational update bulletins.

 

NB: A couple of issues to be aware of:

 

Q: Uploading documents must be split up into different categories (Passports, finance etc).

 

A: Correct

 

Q: Dependants docs are loaded to the same account as the principal applicant but under their own specific names.

 

A: Correct

 

Q Some have reported that at this end documents are showing as uploaded but at their end they are saying that they do not have them.

 

A: As part of continuous improvement UKVI will work with Sopra to ensure customers can view their uploaded evidence to enable them to check the quality and quantity.

 

Q: Once you have uploaded the document you don’t seem to be able to open the uploaded to check that you have indeed uploaded the correct document so you have to label very carefully before uploading. You can however remove an upload if you need to.

 

A: As above.

 

There is currently no functionality to view documents once you have uploaded them but will be added in the future.

 

Q: When my ILR clients attended the appointment with the ILR application, the applicants had a number of documents to be scanned as part of the application. The staff at the centre specifically said they would not accept his EDF energy bills and stated that certain items brought to the appointment were not mandatory documents and therefore did not need to be scanned. They went further to say that only the Police Registration Certificate was mandatory for the ILR application (which is not correct).

 

We are concerned that there may be an issue with the processing of this application in particular given that the centre staff would not scan the documents the applicant wished to submit.

 

A: Service point staff are not allowed to determine what documents can and cannot be scanned.

 

Q: Do you envisage that Sopra Steria will make sufficient numbers of free biometric appointment slots available to avoid applicants having to pay an additional fee, on top of the Home Office Priority and Super Priority fees?

A: No the customer pays for biometrics but if biometrics are not required then they will not be charged £19.20 for this service.

 

A: Sopra are required to offer an appointment at a core site within 5 working days of sub-mission.

 

15. BRP cards

 

Q: Will these be returned to applicants at the biometrics appointment?

 

A: Yes, they will be, no documents will be retained by Sopra Steria. However, applicants will be asked to return their BRP for secure destruction if a new BRP is issued or when their current BRP expires.

[British Lawyer]

21 November 2018 - Important and just useful news from the Legal Centre, www.legalcentre.org, 07791145923

 

The New UK Application System Service Standards: http://legalcentre.org/files/UK_BA_New_Application_Service_Types_Standards 2018_2019.pdf

 

Detailed illustration which immigration application types can be lodged via the UK BA New Application System via the Premium (10 days) or Super Premium (24 hours) options or only via Standard Service (8 weeks/6 months).

[British Lawyer]

22 November 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Pre-Immigration Act 2016 bail ends after an appearance before an immigration officer: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2541.html
 
R (Lucas) v Secretary of State for the Home Department [2018] EWCA Civ 2541 is about re-detention following the grant of immigration bail by the First-tier Tribunal under the now repealed provisions of the Immigration Act 1971. The Court of Appeal ruled that tribunal bail finishes once the person has appeared before an immigration officer, at which point the immigration officer may grant a further period of bail or re-detain them. There is no requirement to bring the person back to the First-tier Tribunal to ask for permission to re-detain.

It is important to note that the instances of bail and re-detention in this appeal occurred be-fore the changes to the bail system under the Immigration Act 2016 came into force. The 2016 Act stipulates that bail comes to an end if the person is no longer liable to be detained, granted leave to remain, detained or removed from the UK. It also explicitly states that the grant of bail does not prevent the Secretary of State from re-detaining the person, so the is-sue in this appeal will no longer arise in practice.

>>> Burden of proof rests with appellants in Article 3 appeals: https://www.bailii.org/uk/cases/UKUT/IAC/2018/386.html

In HKK (Article 3: burden/standard of proof) [2018] UKUT 386 (IAC), counsel rather ambitiously attempted to reopen the question of where lies the burden of proof in Article 3 appeals.

[British Lawyer]

23 November 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Home Office publishes paragraph 322(5) guidance but stands firm on controversial refusals (Tier 1 (General)): https://www.gov.uk/government/publications/tier-1-general-operational-instruction

The Home Office has published guidance on “paragraph 322(5)” cases following a review of settlement refusals under the controversial rule. The takeaway is that no refusals should be issued without interviewing the applicant first.

Migrants on a Tier 1 (General) visa who want to settle in the UK have been refused because of discrepancies between tax information provided to HMRC and the earnings information given to the Home Office as part of earlier visa applications. The Home Office thinks that these applicants inflated their income in order to secure their Tier 1 visas.

The Home Office review says that since January 2015, almost 1,700 indefinite leave to remain applications from Tier 1 (General) migrants have been refused. In 88% of cases, the tax discrepancies amounted to more than £10,000 and so were not considered likely to be an innocent mistake. Most applicants changed their tax returns years after filing them and not long before an ILR application.

Of the 1,700 cases examined, the Home Office says that it has reversed its decision in 37 and is reconsidering another 19. But it has also lost two thirds of the appeals that have so far gone to the First-tier Tribunal.

>>> UK and EU agree basics of post-Brexit relationship: https://www.gov.uk/government/publications/draft-political-declaration-setting-out-the-framework-for-the-future-relationship-between-the-european-union-and-the-united-kingdom-agreed-at-negotia?utm_source=1cf3983a-aca4-40b3-a144-95b33905df33&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

UK and EU negotiators have just published a declaration setting out their ambitions for the future relationship between this country and the remainder of the EU after Brexit.

Of particular interest is the section on “mobility” (i.e. migration) after Brexit, which is much longer than the couple of lines given over to this subject in an earlier draft published last week. It starts by acknowledging that free movement will end, aims for visa-free travel for short trips and notes that the Common Travel Area between the UK and Ireland is a separate consideration. The relevant section in full:

“IX. MOBILITY

50. Noting that the United Kingdom has decided that the principle of free movement of persons between the Union and the United Kingdom will no longer apply, the Parties should establish mobility arrangements, as set out below.
51. The mobility arrangements will be based on non-discrimination between the Union’s Member States and full reciprocity.
52. In this context, the Parties aim to provide, through their domestic laws, for visa-free travel for short-term visits.
53. The Parties agree to consider conditions for entry and stay for purposes such as research, study, training and youth exchanges.
54. The Parties also agree to consider addressing social security coordination in the light of future movement of persons.
55. In line with their applicable laws, the Parties will explore the possibility to facilitate the crossing of their respective borders for legitimate travel.
56. Any provisions will be without prejudice to the Common Travel Area (CTA) arrangements as they apply between the United Kingdom and Ireland.
57. To support mobility, the Parties confirm their commitment to the effective application of the existing international family law instruments to which they are parties. The Union notes the United Kingdom’s intention to accede to the 2007 Hague Maintenance Convention to which it is currently bound through its Union membership.
58. The Parties will explore options for judicial cooperation in matrimonial, parental responsibility and other related matters.
59. These arrangements would be in addition to commitments on temporary entry and stay of natural persons for business purposes in defined areas as referred to in Section III of this Part. Those commitments should not be nullified by the right of either Party to apply their respective laws, regulations and requirements regarding entry, stay and work.”
The political declaration, like the draft Withdrawal Agreement on the arrangements for divorce, still has to be ratified. Unlike the Withdrawal Agreement, it would not be legally binding.

[British Lawyer]

24 November 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Refugee families suffering domestic violence must get equal treatment: https://www.bailii.org/scot/cases/ScotCS/2016/[2016]CSIH38.html

A v Secretary of State for the Home Department [2016] CSIH 38 is an important 2016 decision from the Court of Session in Scotland, the full impact of which has still to be felt. It concerns the Immigration Rules, as they apply to spouses of refugees, where the spouse has experienced domestic violence.

Section DVILR of Appendix FM of the Immigration Rules sets out criteria for the granting of indefinite leave to remain (settlement) to victims of domestic violence. While this allows settlement to be granted to spouses of British citizens or persons settled in the UK if the relationship has broken down due to domestic violence while the spouse of the British citizen or settled person has temporary leave, these rules do not apply where the initial applicant (usually the husband) had still to be granted settlement.

This means that the immigration rules treat non-national spouses of persons with refugee leave less favourably than the spouses of British citizens and persons with settled status.

The consequences of this discrimination were potentially dire; women in this situation would potentially face deportation if their relationship broke down, and this gave rise to concern that some victims of domestic violence might be compelled to stay in abusive relationships to prevent return to their home country.
 
Although this decision was hailed at the time as a victory by campaign groups, the Home Office has still to amend the Immigration Rules to reflect the court’s decision.

>>> Court of Justice says no real time limit for Dublin III re-examinations: http://curia.europa.eu/juris/document/document.jsf;jsessionid=5AC7F47A39846BF6AEE5D2BD52F64B13?text=&docid=207681&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=4421787

In Joined Cases C 47/17 and C 48/17 X and X v Staatssecretaris van Veiligheid en Justitie, the Court of Justice of the European Union has ruled that failure to respond to a re-examination request under the Dublin III procedure does not mean that the defaulting member state takes over the asylum claim. The court refused to remedy an apparent deficiency in EU asylum legislation by imposing a sanction for failing to respond. Instead it emphasised that countries must endeavour to meet the deadline in a “spirit of sincere cooperation” even though there are no consequences for failure.

This issue arises where one member state requests that another “take back” or “take charge” of an asylum seeker, usually because of a fingerprint match which proves they claimed asylum in that other country first. If that member state refuses to accept responsibility, the requesting government can submit a re-examination request with additional evidence.

The Dublin III system is based on member states complying with strict time limits, so failure to meet a deadline normally means that the defaulting country becomes responsible for dealing with the asylum claim. However, the implementing regulation merely states re-examination requests should be dealt with in two weeks and does not impose any sanction for missing the deadline.

This anomaly in the legislation creates an incentive for member states to initially refuse to accept responsibility and then ignore re-examination requests. The Court of Justice refused to address this loophole by interpreting the implementing regulation to have implied sanctions for missing the deadline.

[British Lawyer]

27 November 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> The Derivative residence does not lead to Permanent Residence – Chen, Zambrano etc (the primary carers of EU children) cases under the EU law

It is worth remembering that under the Regulation 15 the Derivative residence does not lead to Permanent Residence:

Reg15(2):

“Residence in the United Kingdom as a result of a derivative right to reside does not constitute residence for the purpose of this regulation”

[British Lawyer]

03 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Latest immigration stats: EU residence document applications back on the rise: https://www.ons.gov.uk/peoplepopulationandcommunity/populationandmigration/internationalmigration

>>> Appeals law: a “new matter” includes EU law arguments: https://www.bailii.org/uk/cases/UKUT/IAC/2018/385.html

In Oksuzoglu (EEA appeal – “new matter”) [2018] UKUT 00385 (IAC), the appellant was a Ukrainian national and the sponsor was a British national. They had spent some seven months in Cyprus and on their return to the UK, the appellant applied for a residence card invoking the Surinder Singh principle.

The official headnote:

"(1) By virtue of schedule 2(1) of the Immigration (EEA) Regulations 2016 (‘the 2016 Regs’) a “new matter” in section 85(6) of the Nationality, Immigration and Asylum Act 2002 includes not only a ground of appeal of a kind listed in section 84 but also an EEA ground of appeal.
(2) The effect of the transitory and transitional provisions at schedules 5 and 6 of the 2016 Regs is as follows:
(a) All decisions made on or after 1 February 2017 are to be treated as having been made under the 2016 Regs, whatever the date of the application;
(b) Regulation 9 of the 2016 Regs applies (through the medium of the transitory provisions) to all decisions made on or after 25 November 2016 whatever the date of the application;
(c) In all other respects the Immigration (EEA) Regulations 2006 apply if (i) the application was made before 25 November 2016 and (ii) the decision was made before 1 February 2017.".

>>> More Article 3 appeals rejected as Court of Appeal stands firm on Paposhvili: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2482.html

In MM (Malawi) [2018] EWCA Civ 2482 the Court of Appeal has again confirmed that there is indeed a discrepancy between the domestic law on Article 3 medical cases as set out in the House of Lords case of N v Secretary of State for the Home Department [2005] UKHL 31 and the recent European Court of Human Rights judgment in Paposhvili v Belgium (application no. 41738/10). The court also conceded that it is arguable that Paposhvili extends Article 3 protection to anyone who would suffer a significant reduction in life expectancy, though it did not

>>> Children (asylum policy guidance): https://www.gov.uk/government/collections/children-asylum-instructions?utm_source=f5766198-3040-4acb-843d-652b67e4cac8&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Asylum policy guidance for asylum applications involving children.

This collection contains asylum policy guidance used by UK Visas and Immigration to make decisions on asylum applications involving children.

>>> Home Office can’t accidentally grant section 3C leave by deciding an invalid application: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2612.html

R (Basir) v Secretary of State for the Home Department [2018] EWCA Civ 2612 is about section 3C of the Immigration Act 1971. Section 3C works as follows: where a person makes a valid application to extend his or her leave to enter or remain and the application is refused, that person’s immigration status is extended during any waiting time for the application to be decided or for an appeal to be decided. (Except the exception to the general rule when the application is decided before the original visa expires.)

If you are on section 3C leave, you can’t use that breathing space to make a new application for leave. It is only really intended to keep your stay in the UK legal while the extension application is being considered/appealed — not to try your luck with a different application entirely while that is going on.

[British Lawyer]

05 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> EU Advocate General: the United Kingdom CAN cancel Brexit if it wants to: http://curia.europa.eu/juris/document/document.jsf?text=&docid=208385&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=184123

 

A top legal adviser to the Court of Justice of the European Union has recommended that the UK be allowed to cancel its Article 50 notification triggering Brexit and stay in the EU if it wants. Advocate General Sánchez-Bordona writes in an Opinion released recently that the UK has the legal right to withdraw its Article 50 notification, even without the agreement of other EU countries — so long as this happens before the withdrawal agreement is concluded and has parliamentary approval.

[British Lawyer]

07 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> UKVI update: Tier 1 (Investor) visa was suddenly suspended at midnight on the 6th December 2018 (via ILPA)

 

The suspension only affects new applicants, not extensions, filing after the suspension comes into effect.

 

The Home Office briefing note should be published today.

 

>>> UKVI Guidance: Points-based system: evidential flexibility: https://www.gov.uk/government/publications/points-based-system-evidential-flexibility?utm_source=7e0632e8-239c-454f-850c-eb8c1facec7f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

Modernised guidance for how UK Visas and Immigration uses evidential flexibility when considering applications.

Updated Points-based system: evidential flexibility document to latest version.

 

 

[British Lawyer]

08 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Tier 1 (Entrepreneur) visas to be scrapped in Points Based System shake-up

The immigration minister, Caroline Nokes, gave us a sneak preview of a range of tweaks to the rules that will be laid “shortly”. The changes include:

•    Introducing the “Start-up” visa (announced in June)
•    Scrapping the Tier 1 (Entrepreneur) route and replacing it with an “Innovator” visa
•    Big changes to the Tier 1 (Investor) route, which is suspended in the meantime
•    Allowing architects to get Tier 1 (Exceptional Talent) visas
•    Some “minor, more technical changes” to Tier 1 and Tier 2 (i.e. nasty surprises in the small print)
•    Clamping down on the Tier 5 (Temporary Worker – Religious Worker) route, “prohibiting Tier 5 Religious Workers filling roles as Ministers of Religion”
•    Introducing a cooling-off period for Tier 5 so that nobody can get a second Religious Worker or Charity Worker visa until a year has passed since their first one expired
•    Introducing the pilot scheme for seasonal agricultural workers (announced in September)
More details to follow when the full statement is issued by the Government.

>>> Court of Appeal guidance on costs in ETS cases: https://www.bailii.org/ew/cases/EWCA/Civ/2018/1572.html

[British Lawyer]

10 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> The UK BA fails to implement the Tier 1 (Investor) suspension

From ILPA:

“ILPA understands from the Home Office that there is no suspension as yet of the Tier 1 (Investor) visa.
The Home Office cannot say if or when any suspension will happen, or how much notice we will get.
Needless to say, ILPA is extremely disappointed by the situation, which makes a mockery of the principles of certainty and stability inherent in the rule of law.”

>>> Court of Justice of the European Union holds that Brexit can be unilaterally cancelled: http://curia.europa.eu/juris/document/document.jsf;jsessionid=07BB62261AD026372290BCC58221C3CF?text=&docid=208636&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=1195903

The Court of Justice of the European Union has found that the UK can cancel Brexit by withdrawing its Article 50 notification, without having to get the permission of other EU countries. The result in case C 621/18 Wightman and Others means that, if political circumstances change soon, the UK could remain in the EU on the same terms as now.

There are conditions. The UK would have to officially change its mind “through a democratic process”, widely interpreted to mean new legislation to reverse the European Union (Notification of Withdrawal) Act 2017. The “unequivocal and unconditional” change of mind would have to be notified in writing to the European Council. If Brexit day (29 March 2019) arrives or the withdrawal agreement drawn up by negotiators comes into force, it will be too late.

[British Lawyer]

11 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> The UK BA online FLR(M) application form is providing wrong information

 

It has been reported that the UK BA online application form FLR(M) only refers to the need for an A1 CEFR certificate even where a 2nd spouse extension is sought, while the minimum and the correct level for the extension is currently A2 CEFR.

 

Whilst that is not an issue for lawyers submitting applications (who should know what is needed) it will create real issues for applicant’s given the incorrect information.

 

You have been warned!

 

>>> Can a visitor be granted leave to remain in the UK if the visitor’s British spouse dies in the UK ?

 

Potentially, yes, case to case dependent, via the currently available FLR(HRO) application form.

[British Lawyer]

11 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Statement of changes to the Immigration Rules: HC 1779, 11 December 2018 (11 December 2018): https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1779-11-december-2018?utm_source=fba24dd8-3e3b-4e9d-a166-02c7dee5486b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

The main changes:

•Introduce a new seasonal workers scheme; and
•Expand protection offered to victims of domestic abuse, to include partners of
refugees who have not yet gained indefinite leave to remain, as a result of the
judgment in the case of A v Secretary of State for the Home Department (2017).

Changes relating to Tier 1 of the Points-Based System

Tier 1 (Exceptional Talent)

•    The endorsement of arts applicants is being widened to include those in the
field of architecture. These applicants will be assessed by the Royal Institute
for British Architects operating within the endorsement remit of Arts Council
England;

•For consistency, the grant periods for entry clearance applications have been
amended to include an addition 4-month period for each potential grant of
leave. This provides applicants with extra time to meet the qualifying period
for settlement and reduces the likelihood that they would have to apply for
further extension applications. Currently only applicants who request 5 years’
leave qualify for the additional 4-month period;

•Other changes are being made to the criteria for endorsement by each
Designated Competent Body, at those bodies’ requests. These include changes
to the evidential requirements for digital technology applicants who, as a result
of the Tech Nation online application form, are no longer required to supply
paper copies of their specified evidence to the Home Office; and amendments
within Arts Council England rules to ensure consistency across its subendorsers

Changes relating to Tier 2 of the Points-Based System (PBS)

•A change is being made to include the Academic Technology Approval
Scheme (ATAS) requirement for Tier 2 (ICT) applicants extending
leave in the United Kingdom. Applicants in all PBS routes are required
to obtain an ATAS certificate before studying a postgraduate
qualification in certain sensitive subjects, knowledge of which could be
used in programmes to develop weapons of mass destruction (WMDs)
or their means of delivery. The requirement for ICT extension
applications had previously been excluded in error;

•Remove references to ‘Universal Jobmatch’ from the Rules covering
the Resident Labour Market Test (RLMT). Universal Jobmatch (UJM)
was replaced by the ‘Find A Job’ service on 14 May 2018, with UJM
permanently closing on 17 June 2018;

•Changes to fix incorrect cross references in paragraph 78C(g) relating
to inward investment requirements, and in table 11B, relating to the
RLMT for creative occupations;

•Including reference to the appropriate salary to be paid to nurses or
midwives who are undertaking the Observed Structured Clinical
Examination (OSCE) to obtain Nursing and Midwifery Council
registration.

Changes relating to Tier 4 of the Points-Based System

•    The definitions of “degree level study", “foundation degree” and "post-graduate level
study" are being updated to replace the references to the "National Qualifications
Framework" with "Regulated Qualifications Framework" as the latter is now the
framework used to determine levels of study in the UK.

•    A definition of a “higher education provider” is being added to the introduction
section of the rules to reflect the changes to Tier 4 arising from the higher education
reform in England, including the introduction of the Office for Students, and so that
institutions in the Devolved Administration have the same ability to offer privileges to
their students as institutions in England. Accordingly, references to “higher education
institutions”, where appropriate, are being changed to “higher education provider”.

•    A definition of a “track record of compliance” is being added to the introduction
section of the rules. Changes are being made to Parts 6A and 8 of the Immigration
Rules, to set out when a student who is sponsored by a higher education provider with
a track record of compliance will receive conditions of leave which entitle them to
work, apply for further Tier 4 leave in the UK, and bring dependants. These changes
will come into effect on 1 August 2019 and are being made in support of the changes
to Tier 4 arising from the higher education reform in England.

•    A change is being made to Appendix C to make clear that Tier 4 applicants, who rely
on student loans or funds from official financial sponsors, are not required to
demonstrate that the funds have been held for a period of 28 consecutive days. A
minor change is being made to clarify that a Tier 4 migrant must have the funds
available to them on the date of application, except where the funds are being
provided as a financial loan and the student separately confirms when the funds will
be available to them.

•    In Appendix C, a change is being made to clarify that if the applicant is a Tier 4
(Child) Student the specified documents submitted with their application must
confirm who is providing the maintenance funds for their use in studying and living in
the UK and that the funds will remain available to them unless used to pay for course
fees and living costs.

•    Amendments are being made to the rules in Appendix C to make them gender neutral

Changes relating to Tier 5 of the Points-Based System

•    General quota related changes

•    Introduction of a 12-month cooling off period for charity and religious workers

•    Introduction of the new seasonal workers pilot scheme - the formal date of implementation for this pilot will be announced in due course

Minor changes to the Visitor, Ancestry and the Electronic Visa Waiver visa routes

Changes to domestic violence provisions

•    The case of A v the Secretary of State for the Home Department ruled that the
definition of ‘settled person’ in Appendix FM should be expanded, for the purposes of
domestic abuse policy, to include people with refugee status who have not yet
completed the five-year period required to be granted indefinite leave to remain. The
judge held that because 95% of refugees gain indefinite leave to remain following the
end of the five-year period, indefinite leave to remain can be considered a legitimate
expectation. The effect is that a sponsored partner should have the same expectation
of settlement and therefore of protection under domestic abuse provisions.

•    As a result, the eligibility for indefinite leave to remain, as a victim of domestic abuse
under paragraph E-DVILR.1.2 and 1.3, is being clarified to include partners of people
with refugee status who have not yet been granted ILR. E-DVILR.1.2 is also being
amended to include partners granted leave under paragraph 352A where their sponsor
has not yet gained indefinite leave to remain.

•    To clarify, only one grant of leave can be made under paragraph 352A. There is
therefore no reference in E-DVILR.1.2.(a) to a subsequent grant of leave being made
under this section.

 

[British Lawyer]

12 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Advance NHS charges for overseas visitors comply with the Equality Act: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3392.html

 

The High Court has ruled that the regulations for charging non-residents in advance for non-urgent NHS treatment are lawful. In R (MP) v Secretary of State for Health and Social Care [2018] EWHC 3392 (Admin), decided yesterday, the court rejected a claim that the government had a duty to consult before introducing advance charging and that it had not complied with the public sector equality duty

 

>>> Can EEA nationals and their family members still be applying for the Residence/Permanent Residence etc during the Brexit transition period ?

 

Yes, according to the UK BA:

 

“There will remain scope for applications for documentation under the EEA Regulations while these continue to operate during the implementation period to 31 December 2020, in line with the draft WA.

And such an application should not be treated as withdrawn where the applicant submits an application under the EU Settlement Scheme, as the person can hold a document under the EEA Regulations and UK immigration status under the scheme.

 

We will continue to keep the gov.uk guidance under review. The need to maintain continuity of residence in order to qualify for settled status is emphasised in the ‘Important information’ enclosed with the decision letter sent to those granted pre-settled status.”

 

>>> Tier 1 (Investor) Update from the UK BA

 

“The Tier 1 (Investor) visa is not currently suspended. However, the Government remains committed to reforming the route. A further announcement will be made in due course.

 

Any suspension would be implemented through changes to the Immigration Rules.

 

Regards,

 

Home Office | Migration Policy”

 

>>> More information on the new UK BA Tier 5 Agricultural Scheme

 

We saw it some 12-15 years ago, run by Condordia. Now it is back, to be run by Concordia and the Pro Force Limited. Namely:

 

Seasonal worker pilot

 

The seasonal worker pilot will be run under the existing Tier 5 (Temporary Worker) category. It will be open to applicants over the age of 18. In addition to making some amendments to Part 8 relating to dependants, and Part 6A of the Immigration Rules (in particular the part under the sub-heading “Tier 5 (Temporary Worker) Migrants), the statement of changes introduces a new appendix into the Rules, Appendix U.

 

“Edible horticulture sector” (namely vegetable, fruits, vines and mushrooms) and “seasonal work” are defined in the introduction to the Rules. Seasonal work is defined as “employment which fluctuates or is restricted according to the season or time of the year”.

 

The explanatory memo says that “the formal date of implementation for this pilot will be announced in due course”.

 

Successful applicants will be issued leave starting 14 days before the beginning of the period of engagement and ending 14 days after the end of that period of engagement, but never for longer than six months in any 12-month period. They will not be allowed to carry on any other work than the work they are being sponsored for. It also seems that they will not be allowed to be accompanied by their family members to the UK.

[British Lawyer]

14 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Can a child on a Visitor Visa switch into a Settlement Visa in-country ?

 

Unlike the partner or parent or PBS child or child of non-PBS worker routes, there are no immigration status requirements preventing a child visitor from switching to child settlement within the UK.

 

However, the UK BA may expect explanations of strong changes in circumstances.

 

For children, any refusal should be subject to Section 55. But the Section 40 needs to be also taken into consideration.

 

The Guidance does place the initial onus on the applicant to raise the issue of the best interests of the child involved.

[British Lawyer]

18 December 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> The New Front End Service update – some questions answered

Q: The Sopra Steria’s scanners at the new Visa Application Centres in the UK are rather slow, it takes about 20 seconds for their scanner to scan a single page. Also, Sopra Steria does not issues any receipts to confirm that they (received and) scanned the documents ? Can Sopra Steria issue the receipts upon scanning the documents ?
A:  Currently there is not facility whereby the customer receives a confirmation or receipt of doc-uments being scanned but we have sent this onto Sopra Steria to consider.

Q: How much does it cost for the Sopra Steria to scan the documents at the time of the application ?
A: £35

Q: Is it possible to reschedule a booked appointment via the Sopra Steria web-site ?
A: No, currently you cannot reschedule your appointment. You must first cancel your appointment and then book a new appointment (and pay the fee again).

Q: Is there a cancellation charge for cancelling an appointment booked via the Sopra Steria’s web-site ?
A: If an applicant cancels their appointment within 48 hours of their appointment time they will incur a cancellation charge. If an applicant cancels their appointment more than 48 hours in advance of their appointment time they will not incur a cancellation charge.

Q: How much does a VIP appointment cost (a visit by the Sopra Steria on site, for example) ?
A: The VIP service will be £650 per agent per hour.

Q: How much time do I have to enrol for the biometrics upon submission of the online application under the New Front End Service ? The Sopra Steris web-sites says that this needs to be done with-in 5 days from the application submission ?
A: Although it is recommended the applicant attends an appointment within 5 working days of submitting their application it is not a requirement. The applicant can book an appointment more than 5 working days from the date of application and have 45 days to enrol their biometrics from the date of application. We would recommend you check the service standards of the application for the specific visa type before booking the appointment.

Q: What will be the applicant’s position with regard to travel between the application being sub-mitted online and attending a biometric appointment (provided the BRP remains valid)?
A: If someone travels while there is a live application leave to remain or Settlement application (ex-cludes the Naturalization application) this is grounds for an automatic withdrawal as they have to be in the UK when an application is being considered

If you are applying for leave to remain, or indefinite leave to remain, you should not leave the UK until you have received a decision on your application. If you travel outside the “Common Travel Area” (CTA) before the decision is made on your application, your application will be treated as withdrawn.

The CTA is:

•    • UK
•    • Republic of Ireland
•    • Channel Islands
•    • Isle of Man

If the decision is made while you are outside the UK and your current leave has expired, you will not have a right to return to the UK and you may be refused entry at the UK border.

Q: What are the costs for the new Front End Services ?
A: The details on fees can be found here; https://www.gov.uk/government/publications/visa-regulations-revised-table but for ease the fees are £610 for super priority, £477 for Priority and the fee for the standard service will depend on visa type.

Q:  Tier 1 Exceptional Talent/Promise

Will expedited services be available for T1 (ET/EP) Stage 1 at any time - e.g. to be able to self-scan supporting documents or attend a Sopra office to submit both Stage 1 docs and Stage 2 at the same time?
A: The stage 1 is for the applicant to apply for endorsement from the relevant Designated Compe-tent Body (DCB). They provide evidence to support their claim of their exceptional qualities within their specific field. This evidence is not linked to the case, it is passed through to the DCB for con-sideration.

- The stage 2 is only applied for if the customer receives the endorsement from the relevant DCB, with this they need to provide details of their passport and BRP card, this information is linked to their case as it forms part of the immigration consideration.
- There is a separate application form and payment for each stage and as specific evidence is re-quired for each stage it would not be possible to submit the information at the same time

Q: What options does Tier 1 (Investor) and Tier 1 (Entrepreneur) applicants have ?
A: As of the 13 November Tier 1 (Investors) applying for leave to remain can make an online application for a priority 10 day or a standard 8 week consideration. Customers choosing the new UK Visas and Citizenship Application Service have a range of appointment options to choose from including more flexible on-demand, mobile application services extending the beyond the main locations to, for example, university campuses, employers’ offices or individ-ual customers’ homes.

Although the Tier 1 (Entrepreneur) applications can enrol their biometrics via a VIP appoint-ment they are not eligible for priority (10 day) or super priority (24 hour).

Tier 1 (Entrepreneur) applications have an 8 week service standard. Tier 1 (Investors) leave to remain are offered a 10 day priority or 8 week service standard. There are plans to offer priori-ty considerations to Tier 1 investors applying for indefinite leave to remain, these will be avail-able in the new year.

Q: Does the applicant need to scan all the pages of their passports ?
A: The applicant is required to scan the biometrics page and any other page with a stamp or information contained on them.

Q: Does had copy passport sized photos required ?
A: Hardcopy passport-sized photographs are not required.

>>> How not to fall foul of the new application process and ensure a valid Home Office application

- Part1: https://ukimmigrationjusticewatch.com/2018/12/04/part-1-how-not-to-fall-foul-of-the-new-application-process-and-ensure-a-valid-home-office-application/
- Part2: https://ukimmigrationjusticewatch.com/2018/12/04/part-2-how-not-to-fall-foul-of-the-new-application-process-and-ensure-a-valid-home-office-application/

 

[British Lawyer]

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>>> Family members of cross border workers can derive EU right to reside if needed for childcare: https://tribunalsdecisions.service.gov.uk/utiac/2018-ukut-426

 

The headnote:

 

1. In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.

2. It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.

 

The Upper Tribunal has held in the case of LS (Article 45 TFEU – derivative rights) [2018] UKUT 426 (IAC) that the family member of a cross border worker within the EU — one who lives in one EU country but works regularly in another — can derive a right of residence from Article 45 TFEU if required for childcare by the cross border worker. The determination is based on the little-known case of C-457/12 S & G.

 

On the facts, this meant the foreign national mother / mother-in-law of a naturalised British couple was allowed to remain in the UK under EU law because the couple were both traveling regularly to the EU for work and the mother was needed for childcare. The family had no other reasonable childcare possibilities available to them and the tribunal was not willing to find that the mother should give up her job to do the childcare.

 

The tribunal held that, to succeed, first of all, the appellant needs to show:

 

1. That he or she is a family member (for example, spouse or partner or dependent parent or grandparent);

2. Of a Union citizen who is exercising Article 45 TFEU rights as a worker in another EU country (“Any Union citizen who regularly travels, in the course of his or her professional activities, to a Member State other that the Member State in which he or she resides will fall within the scope of Article 45.”);

3. And that the appellant is needed by the Union citizen for childcare purposes, which will require demonstration “by the provision of reliable evidence, that genuine and reasonable steps have been taken or investigated to obtain alternative childcare provision”;

4. And that the Union citizen would be deterred from exercising his or her Article 45 free movement rights as a worker if the childcare was not available (“Any interference must be real such that the Tribunal is satisfied that the Union citizen will in fact be discouraged from the effective exercise of his or her rights as a direct consequence of the childcare issues.”).

 

When it comes to demonstrating that alternative childcare is not feasible the tribunal makes clear that merely preferring that a family member provide the childcare is not sufficient and some serious effort is needed:

 

“Sources of alternative childcare may include, inter alia, other friends or family, the child’s nursery or school (including breakfast or after school clubs), child-minders, the use of one or more au pairs, the employment of one or more live-in nannies, or a combination of the above.”

 

The case succeeded on its facts. An au pair arrangement would not work because there are limits to au pair contracts and evidence of babysitter searches was presented to the tribunal. The child was already at a full time nursery but the couple worked such long hours and travelled so frequently for work that a team of three live-in nannies would be needed to provide 24/7 childcare frequently but on an unpredictable basis. The tribunal held this would not be feasible for the couple.

 

>>> UKVI Guidance: EU Settlement Scheme pilot: applicant information: https://www.gov.uk/government/collections/eu-settlement-scheme-pilot-applicant-information?utm_source=c72b8ffd-964a-4bf4-abd5-9e47ee139dd3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

 

Information for applicants to the EU Settlement Scheme during the pilot running from 1 November to 21 December 2018.

 

Updated to add closing and reopening date for applications.

[British Lawyer]

20 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Immigration White Paper published – some interesting points: https://www.gov.uk/government/publications/the-uks-future-skills-based-immigration-system

 

The UK Government intends to:

 

• Scrapping the overall cap on sponsored work visas, currently branded as Tier 2 (General)

• Lowering the skills threshold from level 6 (degree) to level 3 (A-level)

• Abolishing the Resident Labour Market Test

• Reducing the bureaucratic burden on sponsoring employers

 

The minimum income will be at £30 000, although this is likely to be further reduced to £21 000.

 

Workers, including the EU citizens who arrive after the implementation period, in lower skilled jobs, will only be able to work in the UK for up to 12 months with the obligatory cooling off period of 12 months. Also, workers in the lower skills job may not be able to bring dependents with them.

 

As usual with the UK Government plants, the above may well (not) be implemented or (heavily) amended.

 

The new system will be phased in from 2021. It is about future migration and so will not affect EU citizens already living in the UK, who will be able to apply for “settled status” in order to stay legally after Brexit (whether or not there is a deal on an orderly exit).

[British Lawyer]

21 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI News: EU Settlement Scheme rolled out to public test phase: https://www.gov.uk/government/news/eu-settlement-scheme-rolled-out-to-public-test-phase?utm_source=09f6a04d-09ba-46af-95b8-5c1a614d4304&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

After successful private pilots of the system, the next testing phase of the EU Settlement Scheme is now opening more widely.

EU citizens living in the UK who have a valid passport will be able to take part in a public test phase of the EU Settlement Scheme.

From 21 January 2019, EU citizens, as well as their non-EU citizen family members who hold a valid biometric residence card, will be able to apply for the immigration status they will need once the UK has left the EU. By applying during this test phase, they will also provide valuable insight into how the system is performing so that further improvements can be made before the scheme is fully rolled out from March 2019.

>>> Settled and pre-settled status for EU citizens and their families: https://www.gov.uk/settled-status-eu-citizens-families

A detailed UK Government’s overview of the process

>>> Immigration health surcharge: policy equality statement - https://www.gov.uk/government/publications/immigration-health-surcharge-policy-equality-statement?utm_source=7d0a157e-99ce-4c0f-934a-8bb247ec1e59&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

A policy equality statement on increasing the immigration health surcharge.

The NHS Surcharge fee will be increased (£150/£200 will become £300/£300 respectfully)

>>> Useful EEA case-law in relation to the Primary responsibility for adults:

- EA014782016 [2018] UKAITUR EA014782016 (5 April 2018)
- Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 (13 December 2017)
- TR (Pakistan) v Secretary of State for the Home Department [2015] EWCA Civ 1412 (01 December 2015)
- Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC) (13 August 2015)

>>> Can a child of the 2 parents with ILR, who was born outside of the UK, be granted ILE (Indefinite Leave to Enter) ?

The answer is “yes”. The child should apply for ILE Entry clearance as soon as possible.

The parents also need to prove that they have adequate maintenance and accommodation. The child needs to pass (if relevant) the TB test etc.

The parents will need to show that it is their intention to settle in the UK (ie intend to make the UK their home) and that they’re not just applying/returning for the purpose of getting their child indefinite leave (para 297(i)(b)).

 

[British Lawyer]

24 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Appealing with a child who is over 17 at the date of the hearing ? Beware of the Rules !

 

If a child of an appellant has turned 18 or more at the date of the hearing, then the Section 85(4) comes into play and therefore the child cannot meet the rules under para 297(ii).

[British Lawyer]

27 December 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> Court of Appeal finds that ordinary residents should be first in the queue for organ donations: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2696.html

 

One line: Access to organs — but only if you have ILR.