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British Lawyer

Важные судебные решения и новости для иммигрантов

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31 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

>>> Home Office man falsified records for hundreds of illegal immigrants: https://www.thetimes.co.uk/article/home-office-man-falsified-records-for-hundreds-of-illegal-immigrants-8px5prc2g

A junior Home Office official was the key figure in a £6 million conspiracy that enabled hundreds of illegal migrants to remain in the UK.

>>> Can You Get a UK Bank Account as a Non-UK Resident?

See https://www.theaccountancy.co.uk/articles/can-you-get-a-uk-bank-account-as-a-non-uk-resident-13365.html

 

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01 January 2019 – 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
 
>>> Higher damages payable for unlawful detention caused by delay in providing bail accommodation: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3420.html
 
The High Court has ruled that a claimant is entitled to extra unlawful detention damages for frustration and anxiety where the Home Office fails to provide a release address. The guidance on this issue provided by R (Diop) v Secretary of State for the Home Department [2018] EWHC 3420 (Admin) is especially important in light of the changes made to the system of bail accommodation since the Immigration Act 2016 came into force. The Home Office has refused to set up an application system for applying for accommodation under Schedule 10 of the Act, which has led to more detainees resorting to applications for bail in principle from the First-tier Tribunal and lengthy waiting periods for release after bail has been granted.
 
This decision means that the Home Office will have to pay additional compensation if that delay is unlawful.

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03 January 2019 – 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 have updated their service standard guidance.

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07 January 2019 – 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 2 Secondary Employment and the NHS Sucarge fee

According to the UK BA, a migrant who wishes to make an application for secondary employment would have to pay the IHS charge again and then make a refund claim.

>>> Immigration and nationality law for adopted children

There are different types of adoption:

    Adoptions under the terms of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (or just “Hague Convention” in this context). The Hague Convention only applies to inter-country adoptions. In other words, a family based in the US adopting a child in the US cannot adopt under the terms of the Hague Convention. In addition, not all counties are party to the Convention.

Overseas adoptions recognized by UK law. These are adoptions which took place in countries or territories whose adoption procedures are recognized by the UK. For adoptions which took place before 3 January 2014, the list of countries is found in The Adoption (Designation of Overseas Adoptions) Order 1973 and The Adoption (Designation of Overseas Adoptions)(Variation) Order 1993. For adoptions which took place after 3 January 2014, the list of countries is found in The Adoption (Recognition of Overseas Adoptions) Order 2013 for England, Wales and Northern Ireland; and in The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013 for Scotland.

    Overseas adoptions not recognized by UK law. These are adoptions which took place in countries not listed above. These cases can be very difficult in immigration terms unless they are classed as “de facto adoptions” (see below) but the recent case of W v SSHD [2017] EWHC 1733 (Fam) provides a rare example of a reported successful resolution, although not without considerable stress and expense

    De facto adoptions, defined at paragraph 309A of the Immigration Rules as situations where:

(i) The adoptive parents have been living together abroad for at least eighteen months; and
(ii) The adoptive parents have been living together with the child for twelve months; and
(iii) The adoptive parents have cared for the child for the full eighteen month period.

De facto adoptions are a concept of the Immigration Rules. They do not “mean” anything under family law and do not grant parental rights to parents or nationality rights to a child.

Immigration and nationality law apply differently depending on the type of adoption.

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08 January 2019 – 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

>>> Tribunal updates Practice Directions: https://www.judiciary.uk/publications/practice-direction-for-the-immigration-and-asylum-chambers/

The immigration and asylum tribunal has issued updated but essentially unchanged Practice Directions. The new document is almost identical to the previous version, dated November 2014. It seems that there has been just one change:

   "13. Bail applications

    13.1 Subject to First-tier Rule 39(3), an application for bail must, if practicable, be listed for hearing within six working days of receipt by the Tribunal of the notice of application."

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09 January 2019 – 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 starts issuing refunds for the Super Premium Application in cases they are not able to consider the application within 24 hours

A colleague has just received an email from the UK BA, confirming that the UK BA has refunded his client £610 as they were not able to make a decision in 24 hours… at least some relief for client.

>>> The NHS surcharge fees has been increased from the 8th January 2019

Today (8 January 2019), the Immigration Health Surcharge has increased from £200 to £400 per year; £150 to £300 for students and those on the Youth Mobility Scheme. This increase was approved by Parliament in December 2018. Those who make an application on or after 8 January 2019 will pay the new surcharge rate.

>>> UKVI Guidance: Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5?utm_source=99ff3820-a368-4c61-b6b2-2320ff0a58ee&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Full guidance on the policy for applications by the family of people who have UK visas under the points-based system (PBS dependants).

>>> Strasbourg court upholds deportation of Turkish man born and raised in Germany: https://hudoc.echr.coe.int/eng#{"itemid":["001-188384"]}

In Cabucak v Germany (application no. 18706/16), the European Court of Human Rights dismissed a strong Article 8 claim to uphold a deportation order made against a serial drug-dealer.

Mr Cabucak, who despite being a Turkish national was born and raised in Germany, has a tragic life story. His father killed his mother when he was two years old. He has a German daughter and successfully appealed against a previous deportation order in 2005. Unfortunately, Mr Cabucak continued to commit criminal offences and therefore the German authorities made a second deportation decision in 2008 which was upheld by the domestic courts.

The European Court of Human Rights agreed with the German authorities that deportation was a proportionate response to Mr Cabucak’s offending. It accepted that there would be some negative impact on his daughter and noted that he had only been to Turkey on two brief holidays as a child, but this was not enough for him to succeed under Article 8.

>>> New immigration policy on DNA evidence: https://www.gov.uk/government/publications/dna-policy

The new policy makes clear that where a relationship is in doubt, the applicant declines to produce DNA evidence and the Home Office ultimately concludes that the relationship is unproven (supposedly on the balance of probabilities standard of proof, although the policy rather unhelpfully does not actually say this) then the application will be refused.

 

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11 January 2019 – 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 does not cope with the 24 hour Super Premium Service applications
 
The following E-mails are being sent to the applicants/lawyers by the UK BA:
 
"If we cannot decide the application within the 24- hour service standard for reasons outside the control of the customer the application will be decided as quickly as possible and the SPV element of the fee refunded to the customer. We are currently reviewing decisions made since the start of the UKVCAS transition period to identify cases where we have not delivered a decision within the SPV service standard. We aim to complete this exercise by January 2019.
 
Yours faithfully,
 
UK Visas and Immigration"
 
>>> Can a visitor lodge an application to register as a British citizen via the form UKM ?
 
Apparently, the answer is "yes", according to the form and the current Guidance: https://www.gov.uk/government/publications/application-to-register-as-a-british-citizen-form-ukm
 
>>> Home Office cannot make second deportation decision absent change of circumstances: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2848.html
 
In the case of Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848, Lord Justice Irwin in the Court of Appeal held that where an appeal against deportation is allowed, the Home Office cannot make a second decision to deport unless there has been a change of circumstances.

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14 January 2019 – 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: Sponsor a Tier 2 or 5 worker: guidance for employers: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers?utm_source=ac7903af-c1f3-4e5b-9de0-2140c9fedb5d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker:

>>> UKVI Guidance: Guidance on policy for UK visas under Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/guidance-on-policy-for-uk-visas-under-tier-1-exceptional-talent?utm_source=5aa40bd4-2258-4b42-a04b-0c7416dafc7b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

This is the full guidance on UK Visas and Immigration’s policy on visa applications under Tier 1 (Exceptional Talent).

>>>  UKVI Form: Tier 1 (Exceptional Talent) endorsement review form: https://www.gov.uk/government/publications/application-for-endorsement-for-tier-1-exceptional-talent-visa and https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjcka-XvOvfAhW1oXEKHct8BKcQFjAAegQICRAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F300994%2FCode_of_Practice_-_April_2014.pdf&usg=AOvVaw0d4vFgEfzzl3OD3w9dnowi

Form to apply for a Tier 1 (Exceptional Talent) endorsement review.

Updated codes of practice for competent bodies: Tier 1 (Exceptional Talent) in line with changes to the Immigration Rules.

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16 January 2019 – 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: Studying under Tier 4 of the points-based system: https://www.gov.uk/government/publications/studying-under-tier-4-of-the-points-based-system?utm_source=96fdfd33-3774-466e-8941-ee217389a960&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4.

Replaced the document with a new version.

>>> UKVI Guidance: Good character: nationality policy guidance: https://www.gov.uk/government/publications/good-character-nationality-policy-guidance?utm_source=d8e5166c-119d-45a8-927f-271ae260b93c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance on assessing the good character requirement in nationality applications.

Updated guidance.

>>> UKVI Guidance: Points-based system: Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/points-based-system-tier-1-exceptional-talent?utm_source=1935f115-ea9d-40f5-917a-1bb5ebc3c4be&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance for how UK Visas and Immigration considers applications in the Tier 1 (Exceptional Talent) category of the PBS.

Replaced the document with a new version.

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17 January 2019 – 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

 
>>> Failure to submit specified documents fatal to Tier 1 (Entrepreneur) application: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2861.html
 
The Court of Appeal has reluctantly but unanimously agreed with the Home Office’s decision to refuse a Tier 1 (Entrepreneur) application for further leave to remain based on a factual issue of specified documents not being submitted. It rejected arguments that evidential flexibility should apply. The case is Harpreet Singh v Secretary of State for the Home Department [2018] EWCA Civ 2861.
 
 
Since January 2015, 1,700 settlement applications from Tier 1 (General) migrants have been refused under paragraph 322(5) of the Immigration Rules, primarily due to discrepancies between earnings declared to HMRC and to the Home Office at the time of making an application.
 
During that time, the higher courts in England and Wales have been busy deciding issues relating to the plausibility of explanations put forward by applicants and issues of fundamental fairness whilst the Court of Session in Scotland has remained silent – until now.
 
Dadzie [2018] CSOH 128 and Oji [2018] CSOH 127 are the first reported cases in the Court of Session on refusal of indefinite leave to remain under paragraph 322(5) because of tax discrepancies. The facts in both cases were very similar and the court heard them together. Ultimately both decisions were overturned because of flaws in how the allegations were put to the applicants and a failure to consider the innocent explanations put forward.
 
>>> Passport application unlawfully refused ?

One can opt for the paid for (£££) reconsideration request or just simply use the complaints procedure via this link (free): https://www.gov.uk/government/organisations/hm-passport-office/about/complaints-procedure

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21 January 2019 – 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: 3C and 3D leave: https://www.gov.uk/government/publications/3c-and-3d-leave?utm_source=b021f702-e86f-4d04-b73f-7acd5c0e432c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance on how staff can prevent an individual from becoming an overstayer while they are awaiting or appealing a decision.

>>> UKVI Guidance: EU Settlement Scheme: applicant information: https://www.gov.uk/government/collections/eu-settlement-scheme-applicant-information?utm_source=f771097d-79ce-493d-8c3e-4131302dc441&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Information for applicants to the EU Settlement Scheme during the public test phase running from 21 January 2019.

>>> UKVI Guidance: Using the ‘EU Exit: ID Document Check’ app: http://www.ilpa.org.uk/resource/35054/ukvi-guidance-using-the-eu-exit-id-document-check-app-17-january-2019

Information for EU citizens and their families applying to the EU Settlement Scheme.

>>> UKVI Guidance: EU Settlement Scheme: evidence of UK residence: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence?utm_source=c91d4657-2169-4607-85c9-757f08d09547&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 some benefits records.

Added information about the number of documents that can be submitted and the maximum file size of each document

 

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22 January 2019 – 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

>>> How do I renew my brp that says no time limit: https://www.whatdotheyknow.com/request/how_do_i_renew_my_brp_that_says

>>> Immigration Rules must be rewritten, Law Commission says

The Immigration Rules should be redrafted and restructured in order to cut down on complexity, the Law Commission says. Launching a consultation on Simplifying the Immigration Rules today, the influential law reform body proposes major revisions to “provide a more logical structure, remove unnecessary repetitions and improve the drafting”.

The regulations that underpin the UK’s immigration system have grown from 40 pages in 1973 to around 1,100 today, the commission points out. The sheer length, unwieldy drafting and confusing structure of the Rules make it difficult for migrants — as well as Home Office decision-makers — to understand and follow them.

The Law Commission gives the example of the rules on applying to extend an entrepreneur visa. These include a requirement that the applicant has created two new full-time jobs by setting up their business. Paragraph 50 of Appendix A now devotes 750 words to the evidence required to prove this; the equivalent a decade ago took just 76 words.

On structure, the Law Commission says that having the requirements for a particular visa scattered around different sections of the Rules is the worst possible approach. Instead, it recommends that the redrafted Rules follow either

  •     a “common provisions” approach, where applicants can check the requirements common to all visas before turning to their particular route
  •     a “booklet” approach, where all the requirements for a particular route are gathered together under one heading.

Either way, the commission provisionally recommends that the Rules be divided into 15 categories:

  •     Visitors
  •     Students
  •     Work
  •     Short-term work and work experience
  •     Business and investment
  •     Family members of workers, businesspersons, investors and students
  •     Family members of British citizens, settled persons and persons with refugee/humanitarian protection status
  •     Long residence and private life
  •     Armed forces
  •     Other categories
  •     ECAA nationals and settlement
  •     EU citizens and family members
  •     Asylum
  •     Temporary protection
  •     Stateless persons

There are 54 consultation questions in total. The deadline for responses is 26 April 2019.

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23 January 2019 – 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

>>> So you are chaning your Tier 2 employer ? You may need to:

Your new employer will need to assign you with an unrestricted CoS in order for you to make a Change of Employment application. However, your new employer will probably first have to have run a resident labour market test (RLMT) before assigning the CoS, unless an RLMT exception applies.

The Tier 2 application can then be submitted online here:

https://visas-immigration.service.gov.uk/product/tier2-general

You will have to pay the application fee. It appears you will also have to pay the IHS fee again – which is due to increase to £400 per year tomorrow. You should though get a refund on the IHS.

There is some reference to Change of Employment applications in the Tier 2 guidance here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/725905/Tier-2-5-sponsor-guidance_07-2018_final.pdf

and in the Tier 2/5 SG here:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/753725/Tier_2_Policy_Guidance_11_2018.pdf

>>> 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=6359212a-bd43-4591-aef3-21837fad81a3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

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

Added information that applications for administrative review must be made from inside the UK

>>> Unlawful entrants can’t rely on domestic violence concession: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3475.html

The domestic violence concession allows victims of domestic abuse access to public funds while they make an application for settlement. The High Court has now made clear that this concession only applies to those who are already on the route to settlement as a partner in the case of FA v Secretary of State for the Home Department [2018] EWHC 3475.

>>> Settled status fee for EU citizens scrapped: https://www.gov.uk/government/speeches/pm-statement-to-the-house-of-commons-on-brexit-21-january-2019

The Prime Minister has announced that the £65 fee for EU citizens applying for post-Brexit settled status will be scrapped.

>>> UKVI Guidance: Short-term students: https://www.gov.uk/government/publications/short-term-students?utm_source=898deba5-621e-4cef-96b3-45b1c8132beb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance on how short-term student applications for entry clearance or leave to enter are considered.

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24 January 2019 – 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

 
 
Updated guidance to apply to come to the UK as a Tier 1 (Entrepreneur) or to extend your stay.
 
 
A reminder from the Court of Justice of the European Union that EU law still applies to the UK until Brexit actually happens. The Irish asylum authorities had asked, in effect, whether the triggering of Article 50 meant that it shouldn’t send asylum seekers across to the UK any more. The Court of Justice said no. The case is C‑661/17 MA, SA and AZ v International Protection Appeals Tribunal and others.
 

>>> Outside of the UK Settlement application - from which countries do I need to send the documents to Sheffield by post ? See https://www.whatdotheyknow.com/request/437582/response/1112711/attach/html/6/FOI Annex 45712.pdf.html

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25 January 2019 – 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 updated Guidance on how the UK Visas and Immigration staff consider claims on the basis of family life or on the basis of private life, on a 10-year route to settlement

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29 January 2019 – 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

>>> Is it possible to switch from Tier5 intoto Tier2 in-country?

Yes, it is possible under the para 245HD.(b)(i):

    (4) a Tier 5 (Temporary Worker) Migrant...

But it is NOT possible for the Tier 5 (Youth Mobility Scheme) Temporary Migrants.

>>> Can a PBS dependent apply for ILR independently from the main PBS applicant ?

The answer is usually "No", because the PBS dependent needs to satisfy the Para 319E, including

    (b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:

        (i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
        (ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
        (iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.

>>> Can a migrant who used deception in the past under the Tier 1 and Tier 4 routes apply for ILR under the Appendix FM ?

For example, an applicant was refused visas under the Tier 1 and Tier 4 immigration categories 4 because of fraudulent documents with the 10 years ban in 2012. The decision letter says that any future applications under spouse route etc. would not be affected. So, in 2015 the applicant was granted entry clearance as a spouse of a British citizen. In 2020 the applicant is planning to apply for ILR.

Can this applicant expect a grant of ILR ?

The answer is "Probably", if the applicant satisfies the Para D-ILRP.1.1., including satisfying the Paras S-ILR.

If the applicant previously satisfied the Paras S-LTR, despite the previous fraudulent documents, then the applicant should be able to satisfy the analogous paragraphs in Para S-ILR.

This is a complex case and assistance of an experiences firm like the Legal Centre (www.legalcentre.org) is advised.

>>> UKVI Guidance: European Temporary Leave to Remain in the UK: https://www.gov.uk/guidance/european-temporary-leave-to-remain-in-the-uk?utm_source=a52f30df-a365-4132-a07b-0b048d30e64b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

>>> UKVI News Story: Government outlines no deal arrangements for EU citizens: https://www.gov.uk/government/news/government-outlines-no-deal-arrangements-for-eu-citizens?utm_source=c8c35f32-63bf-4847-a716-ceba7ecf2d50&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

In the event of no deal, EU citizens will be able to enter the UK to visit, work or study after 29 March 2019. For stays longer than 3 months, European Temporary Leave to Remain will be required.

Guidance for EU citizens coming to the UK to visit, study, work or join family if the UK leaves the EU with no Brexit deal.

>>> UKVI Policy Paper: EU immigration after free movement ends if there's no deal: https://www.gov.uk/government/publications/eu-immigration-after-free-movement-ends-if-theres-no-deal?utm_source=82e9b6ca-2abe-41a2-bbf6-ed0525934d39&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

This explains the transitional immigration arrangements for EU citizens arriving in the UK after free movement has ended if the UK leaves the EU without a deal.

>>> UKVI Guidance: Apply for a Tier 4 sponsor licence: https://www.gov.uk/guidance/apply-for-a-tier-4-sponsor-licence?utm_source=3bf50786-0af1-40e1-9e37-0441349b6eae&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

How to apply for a student sponsor license.

Updated content.

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05 February 2019 – 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 I ask the Home Office to waive their application fees ?
 
The answer is "Yes, but there are conditions".
 
The following 2 cases form the basis of Home Office policy on fee waivers. The first is R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The second case is R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin).
 
The case law has found that it was unlawful for the Secretary of State to charge a fee for a human rights based application where the applicant cannot afford the fee. In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the person concerned cannot afford the fee and the Secretary of State must agree to waive the fee when an applicant is unable to afford the fee and has a human rights claim.
 
Who can qualify for a fee waiver?
 
In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. More particularly, the following groups can qualify:
 
- Applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
- Applications for leave to remain under the 5-year parent route
- Applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under Article 8 of the European Convention on Human Rights (the right to respect for private and family life)
- Applications for leave to remain on the basis of other ECHR rights
- Applications for further leave to remain from applicants granted discretionary leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
- Applications for further discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave and are seeking to extend it for reasons related to trafficking or slavery
 
It is possible for an applicant to pay for their fee but apply for a fee waiver for one or more dependant.
 
Importantly, applications for Indefinite Leave to Remain (ILR), even if based on a human rights claim, are not covered. Applicants could be extending their leave forever, until they can afford to pay the indefinite leave to remain fee. This is currently £2,389 and will in all likelihood continue to increase over the years.
 
Criteria to be granted a fee waiver
 
Applicants for a fee waiver will need to show that one of the following three circumstances apply:
 
1. They are destitute
 
Applicants are considered destitute when
 
- They do not have adequate accommodation or any means of obtaining it; or
- They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.
 
2. They would be rendered destitute by payment of the fee
 
This route is for those who are not destitute at the time of the application, and have adequate accommodation and can meet their other essential living needs, but have no disposable income.
 
In these cases, however, there is also a need to consider
 
- Whether, if receiving accommodation and essential living needs support from family or friends, they are able to borrow the required amount for their immigration application also (but only if receiving accommodation this way).
- Whether the applicant’s financial circumstances are likely to change – for instance, for those with the relevant leave, because of an offer of employment – within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time).
 
3. There are exceptional circumstances
 
 
How to submit the application and what evidence should be included
 
Fee waiver requests are made online, before the application for leave to remain is made: https://visas-immigration.service.gov.uk/product/fee-waiver
 
What happens after the fee waiver application is submitted?
 
What happens after an application for a fee waiver has been considered depends on the outcome of the application.
 
Application is granted
 
If an applicant is granted a fee waiver they will be issued with a Unique Reference Number (URN) to be used when applying for leave to remain online.
 
The application for leave to remain must be submitted within 10 working days of the date of the decision (not the date that the decision is received). They must then make an appointment at a Service and Support Centre within 17 working days.
 
If an applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
 
Application is refused
 
The status of an applicant when their application for a fee waiver is refused depends on whether the applicant had valid leave at the time of the application.
 
Applicants who had valid leave at the time of the application will be advised that they do not qualify for a fee waiver and be given 10 working days to submit additional evidence that demonstrates they qualify for a fee waiver. If the new evidence submitted satisfies the caseworker that they are eligible for a fee waiver, their application will be granted and they will be given another 10 working days to submit the application for leave to remain.
 
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, their application will be refused and they will be given 10 working days to submit an application for leave to remain and pay the application fee. If they do not do so before their leave expires, they will become overstayers.
 
If the applicant had no valid leave at the date of application, their application will simply be rejected as invalid. They will need to submit a new application with the fee or a new application for a fee waiver.
 
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08 February 2019 – 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: Applying for a UK visa: approved English language tests: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests?utm_source=f5417c86-34e4-458d-8377-6c34e12d1f60&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

List of tests and test centres approved by UK Visas and Immigration to show that applicants have the required level of English for their visa.

>>> Immigration legal aid cuts to remain in place following major government review: https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo?utm_source=aa5932f5-0595-4770-bf2a-ad4190123cfb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

A major government review of legal aid proposes no significant changes in the immigration and asylum field. Despite evidence of the impact of cuts over the past five years, and the role that legal aid would have played in preventing the Windrush scandal, the Ministry of Justice has refused to roll back the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as it relates to immigration work. The sole exception is an amendment granting legal aid to unaccompanied migrant children.

The review, published this morning, shows an 85% reduction in legal help for non-asylum immigration matters since LASPO, and a 62% reduction in full representation.

>>> UKVI Guidance: Considering immigration status and deciding enforcement action: https://www.gov.uk/government/publications/considering-immigration-status-and-deciding-enforcement-action?utm_source=bfcc36f1-8fe6-4be8-b08d-b0cec07cb319&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance for enforcement officers considering immigration status and deciding enforcement action, including curtailment.

Updated ‘European Economic Area: administrative removal’ document.

>>> UKVI Data: Country returns guide: https://www.gov.uk/government/publications/country-returns-guide?utm_source=a4183fe7-1fc1-46ba-8709-78c97e8b22a1&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance on returning immigration offenders to their country of origin.

>>> UKVI Guidance: Criminality guidance in article 8 ECHR cases: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases?utm_source=047a0f6c-c9f1-49d4-a0d6-3d5617995e8f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

This guidance deals with how article 8 ECHR cases are considered when deporting a criminal.

>>> UKVI Guidance: Deporting families of foreign offenders: https://www.gov.uk/government/publications/deporting-families-of-foreign-offenders?utm_source=f80a99d2-d91a-4eee-bf0c-2f91afcf6478&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Guidance on managing the deportation of families of foreign offenders.

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11 February 2019 – 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
 
>>> Guidance on how ex-gratia payments are managed and resolved, and how actual and non-financial losses are assessed by UK Visas and Immigration, Immigration Enforcement and Border Force: https://www.gov.uk/government/publications/ex-gratia-guidance?utm_source=2fd862ca-f1d4-4875-9338-93d23c307653&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

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13 February 2019 – 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 one use the expired passport with the immigration application

The answer is "Possibly". The para 34(5)(b)(ii) of the Rules does provide this opportunity:

"(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card"

...yet the Home Office caseworkers may not know their own Rules...and still refuse the application, demanding the valid original passpport !

>>> No job required to export child benefit, Court of Justice holds: http://curia.europa.eu/juris/document/document.jsf?text=&docid=210563&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=11559813

Under EU law it is not necessary that a person be working in a member state in order to be entitled to family benefits in respect of his children living in another member state. So ruled the Court of Justice of the European Union in C-322/17 Bogatu v Minister for Social Protection.

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