Важные судебные решения и новости для иммигрантов

[British Lawyer]

UK and EEA Immigration Law Update November 2015

 

•UK BA Guidance on EEA case-law and appeal: <noindex>https://www.gov.uk/government/publications/...law-and-appeals</noindex>

 

•IAC appeal listing priority:

 

Some categories below are mutually exclusive, but the priority will be, subject to above

 

1) Detained appellants, (including bail)

2) Deprivation of Citizenship

3) Appeals involving children, (including those linked to a parents appeal), both in and out of country

4) Asylum appeals

5) Other appeals

 

Currently it takes about 8-9 months for the appeal to be heard from the date the appeal is lodged to the IAC, and the gap is growing

 

•Police Registration using the 30 day visa (to collect the migrant’s BRP card)

 

The following information confirms that one only has to register with the Police using either the 30 day visa or the BRP once it has been collected. Any subsequent changes will then need to be made in the usual way: <noindex>http://content.met.police.uk/Article/How-t...0/1400028544770</noindex>

 

Recent case-law

 

•R (on the application of Turay) v Secretary of State for the Home Department IJR [2015] UKUT 00485 (IAC)

 

Judgment of Ockelton, J dismissing a judicial review of the Secretary of State’s decision to refuse leave to remain as a spouse under Appendix FM.

 

The challenge was brought on the basis on the basis that the Secretary of State failed to interpret the rules in light of Article 8 of the European Convention on Human Rights and make further enquiries in order to reach a lawful decision in this case where the claimant had made their initial application without representation.

 

The Court held that there was no basis on which the Secretary of State should have investigated whether there were insurmountable obstacles to family life abroad. The claimant had ticked the box on the form indicating that she and her husband could live together outside the UK if necessary, there was no further information in the application to indicate that was a mistake and no basis for the Secretary of State to override that assertion. The argument that the Secretary of State failed to ask appropriate questions and consider whether paragraph 276ADE of the Immigration Rules on long residence applied instead was also unsuccessful.

 

•Weldemichael and another (St Prix [2014] EUECJ C-507/12; effect) [2015] UKUT 00540 (IAC)

 

An EEA national woman will retain continuity of residence for the purposes of the Immigration (European Economic Area) Regulations 2006 (the 2006 EEA Regulations) for a period in which she was absent from working or job-seeking owing to the physical constraints of the late stages of pregnancy and the aftermath of childbirth if, in line with the decision of the CJEU in Jessy St Prix:

 

(a) at the beginning of the relevant period she was either a worker or seeking employment;

( the relevant period commenced no more than 11 weeks before the expected date of confinement (absent cogent evidence to the contrary that the woman was physically constrained from working or seeking work);

© the relevant period did not extend beyond 52 weeks; and,

(d) she returned to work.

 

So long as these requirements are met, there will be no breach of the continuity of residence for the purposes of regulation 15. Time spent in the United Kingdom during such periods counts for the purposes of acquiring permanent residence.

 

•Barry (conduct of hearing) [2015] UKUT 00541 (IAC)

 

In appropriate cases, for example appeals in which the grounds and arguments involve an unmeritorious challenge to the rationality of the decision of the FtT, Upper Tribunal Judges, bearing in mind the overriding objective, should not hesitate to determine the appeal without hearing from the Respondent’s representative.

 

•KMO (section 117 – unduly harsh) Nigeria [2015] UKUT 00543 (IAC)

 

The Immigration Rules, when applied in the context of the deportation of a foreign criminal, are a complete code. Where an assessment is required to be made as to whether a person meets the requirements of para 399 of the Immigration Rules, as that comprises an assessment of that person’s claim under article 8 of the ECHR, it is necessary to have regard, in making that assessment, to the matters to which the Tribunal must have regard as a consequence of the provisions of s117C. In particular, those include that the more serious the offence committed, the greater is the public interest in deportation of a foreign criminal. Therefore, the word “unduly” in the phrase “unduly harsh” requires consideration of whether, in the light of the seriousness of the offences committed by the foreign criminal and the public interest considerations that come into play, the impact on the child, children or partner of the foreign criminal being deported is inordinately or excessively harsh.

 

•Tigere, R (on the application of) v Secretary of State for Business, Innovation and Skills [2015] UKSC 57. Supreme Court upholds challenge to student loan blanket ILR eligibility requirement.

 

Paragraph 49

 

“the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. ...Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future.”

 

 

[British Lawyer]

· Statement of changes to the Immigration Rules HC535 - более подробно

 

On asylum, significant changes are made to the revocation of or refusal to renew Refugee Status or Humanitarian Protection that will be applicable to decisions on cases made from 19 November 2015. Asylum claims from EU nationals are also to be considered invalid unless exceptional circumstances apply.

The definition of a case working error for the purpose of administrative review is expanded to include where the original decision-maker’s decision not to request specified documents under paragraph 245AA of the Rules (to correct minor omissions) was incorrect. The rules allow applicants to submit evidence that was not before the original decision-maker to demonstrate this case working error and enable reviewers to request such documents. This is likely to be a response to the judgment in Mandalia v Secretary of State for the Home Department [2015] UKSC 59.

 

Changes to the Rules on family and private life will require an EEA national to hold a valid document confirming their right of permanent residence in order to meet the requirement of ‘present and settled in the UK’ for applications under the family Immigration Rules. The Rules also make provision for refusal of a child’s application for entry clearance where the Secretary of State considers that the sponsor or their partner poses a risk to the child.

 

Amendments are made the evidential requirements for applications under the various categories of Tier 1 of the Points Based System. There are also changes affecting sportspersons in Tiers 2 and 5 and charity workers in Tier 5.

 

Among changes relating to Tier 2 of the Points Based System, nurses are being added to the Shortage Occupation List on an interim basis pending a more detailed examination by the Migration Advisory Committee as to whether there is a national shortage of nurses or specific nursing job titles. The Migration Advisory Committee has issued a call for evidence on nursing shortages with a deadline of 31 December 2015. The change means that nurses will be exempt from the Resident Labour Market Test and given higher priority in the allocation of restricted certificates of sponsorship. It also means that nurses will be exempt from the earnings threshold when they apply for settlement and this exemption will apply to nurses currently sponsored in Tier 2 even if nurses are removed from the Shortage Occupation List following the outcome of the review.

 

Finally, there is a welcome clarification of the visitor rules allowing visitors to undertake a maximum of 30 days study and 30 days volunteering with a registered charity (each) provided that these are not the main purpose of their visit.

 

Tier 1

 

The Migration Advisory Committee has published its report on the Tier 1 (Entrepreneur) category. It is very positive about graduate entrepreneurs; very negative about the Tier 1 (Entrepreneur) category. At the same MAC recommended that the ”genuineness” test be scrapped and replaced by an assessment by industry experts. There is also interesting information about the likelihood that international trade links are one of the main benefits that Tier 1 entrepreneurs bring where they are investing into established UK businesses. Meanwhile Professor Sir David Metcalf, giving evidence to the Home Affairs Select Committee, said of the Tier 1 Investor visa ”You are not selling passports, you are selling settlement, but right now we are giving it away. We are giving settlement away.” He described it as ”absolutely not fit for purpose.” He pointed out that the investor is paid interest on his/her money which, when citizenship is obtained, is given back to the investor. This he did not see as a good deal for the taxpayer.

 

Transparency International has brought out a report Gold Rush: Investment visas and corrupt capital flows into the UK which identifies that the Tier 1 (Investor) visa has been used for corrupt capital flows into the UK, particularly from China and Russia. The report, citing the National Crime Agency and the Financial Times, identifies that

”…suspicious activity reporting of money laundering is low to negligible. This is particularly concerning for professional gatekeeper sectors, such as accountancy and law that have been rated by the Home Office and HM Treasury as ‘high risk’ in term of vulnerability to money laundering. The National Crime Agency have repeatedly highlighted a concern with poor quality reporting of money laundering suspicions from across the private sector, particularly from the legal sector.

 

Nationality

 

The British Nationality (General) (Amendment No. 3) Regulations 2015 (2015/1806) come into force on 12 November 2015. The big change is that applicants relying upon an EU right of permanent residence in the United Kingdom for nationality law purposes must provide with their application a valid permanent residence card or document certifying permanent residence or a residence permit or residence document issued under the Immigration (European Economic Area) Regulations 2000 (SI 2006/1003) which is endorsed under the immigration rules to show permission to remain in the United Kingdom without limit of time. This prevents those fed up with delays and mistakes in EEA casework from cutting to the chase and going straight to the Nationality Directorate which has historically been more reliable in such matters.

[British Lawyer]

<ВИР> Immigration Digest November 2015-2

• Policies affecting migrant NHS workers, House of Commons Library Briefing Paper, 16 October 2015: <noindex>http://researchbriefings.parliament....mmary/CBP-7337</noindex>

 

•The childcare provision does not count as ‘public funds’ under para 6 of the Immigration Rules

 

•New AN (Naturalization) Application form: <noindex>https://www.gov.uk/government/public...itizen-form-an</noindex>

Recent case-law

 

•The Supreme Court found a duty on the Secretary of State to apply its policy of evidential flexibility in Mandalia v Secretary of State for the Home Department [2015] UKSC 59

 

The Court of Appeal has given its judgment on the interpretation of section 94B of the Nationality, Immigration and Asylum Act 2002 (the ‘deport first appeal later’ provisions) in R (Kiarie and Byndloss v Secretary of the State for the Home Department) [2015] EWCA Civ 1020.

 

•In VS v the Home Office [2015] EWCA Civ 1142, the Court of Appeal provides helpful dicta on the construction of Home Office policies on assessing age and on the detention of children who are age disputed.

 

•Mitchell (Basnet revisited) [2015] UKUT 00562 (IAC)

 

1. The decision of the Tribunal in Basnet v SSHD [2012] UKUT 0113 (IAC) does not put the burden of proof on the Secretary of State where the application was, on its face, insufficiently completed. 2. The evidence shows that the payment pages are retained for 18 months. Thus, within that period, any question of the reason for failure to obtain payment can be investigated, although the reasons for declining a payment are available only to the bank account holder, not the Secretary of State. In the light of this, a more nuanced approach to the burden of proof may be needed.

 

•Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 00560 (IAC)

 

(i) The deprivation of the genuine enjoyment of the substance of the rights attaching to the status of European Union citizens identified in the decision in Zambrano [2011] EUECJ C-34/09 is limited to safeguarding a British citizen’s EU rights as defined in Article 20.

(ii) The provisions of reg. 15A of the Immigration (European Economic Area) Regulations 2006 as amended apply when the effect of removal of the carer of a British citizen renders the British citizen no longer able to reside in the United Kingdom or in another EEA state. This requires the carer to establish as a fact that the British citizen will be forced to leave the territory of the Union.

(iii) The requirement is not met by an assumption that the citizen will leave and does not involve a consideration of whether it would be reasonable for the carer to leave the United Kingdom. A comparison of the British citizen’s standard of living or care if the appellant remains or departs is material only in the context of whether the British citizen will leave the United Kingdom.

(iv) The Tribunal is required to examine critically a claim that a British citizen will leave the Union if the benefits he currently receives by remaining in the United Kingdom are unlikely to be matched in the country in which he claims he will be forced to settle.

[British Lawyer]

Language requirements

In R (Ali and Bibi) v SSHD [2015] UKSC 68, 18 November 2015, the Supreme Court dismissed a challenge to the rule requiring that a foreign spouse or partner pass an English language test before coming to live in the UK.

The Court found that the rule did not breach Article 8 of the European Court of Human Rights, but has invited further submissions from the parties on whether the operation of the current guidance is incompatible with Article 8 where compliance with the rule is impracticable.
The spouses, who had yet to make applications, would have been unable to satisfy the requirement, in Mr Bibi’s case because it would have involved relocating to a different part of the country for several months to study for, and to take, the test, which he could not afford to do, and in Mrs Ali’s case because there was no test centre in the country where she lived.

Migration Advisory Committee advice on the Tier 2 General route

MAC asked the Government to look at whether Tier 2 restricted to an expanded shortage occupation list only, whether minimum salary threshold to be raised, whether an Immigration Skills Surcharge should be implemented to be directed towards high level skills provision; whether Tier 2 dependents should continue to receive automatic rights to work.

Tier 1 Investor clarification

The UK BA clarified that the reference to Investment Syndicate Companies is intended as a measure to specifically prohibit applications which seek to rely upon investment in so-called ‘namecos’ which operate as part of underwriting syndicates in the Lloyds insurance market.

In-country Tier 2 PEO application date

According to the UK BA, the specified evidential requirements, such as the most recent bank statement and the wage slip, would be based on the date of application rather than the date of appointment for those Tier 2 applicants, who lodge their same day applications via the UK BA PSC (PEO). The UK BA reserves the right to ask for the later statement if necessary, but it does not need to be provided up front.

Most recent case-law

R (on the application of Bent) v Secretary of State for the Home Department IJR [2015] UKUT 00654 (IAC)

Dismissal of a judicial review brought against the Secretary of State’s decision not to revoke a deportation order and to certify the application under section 96 of the Nationality, Immigration and Asylum Act 2002.

The Claimant had lived in the UK since he was 12 and was now 27 years old. He had convictions for robbery, possession of a bladed instrument, drugs possession and had most recently served a three-year sentence for supplying class A drugs. He had a daughter aged 4 years who was a British Citizen and lived with her mother who was her primary carer.

The Claimant argued that his case had been heard prior to the introduction of s.117C of the Nationality, Immigration and Asylum Act 2002 and the new formulation of immigration rules 399 and 399A and the change allowed further arguments to be raised in his case. He also had new evidence in the form of a prison service report confirming his risk of reoffending was low, further evidence of his relationship with his daughter and evidence of his depression. He claimed that the Secretary of State had not properly used her discretion in line with J v Secretary of State for the Home Department [2009] EWHC 705 (Admin) when determining whether certification was appropriate.

The Court held that the introduction of s.117C and the change in the immigration rules did not change the consideration of his case as these were a codification of principles under Article 8 European Convention on Human Rights and the weight to be given to the public interest in the deportation of criminals, which were considered in his original appeal against the making of a deportation order. The claimant’s relationship with his daughter had been properly considered in his original appeal. Though there were changes to the test of whether it would be unduly harsh for the child to remain in the UK without the claimant, this was a high test that the case could not meet given the child lives with her mother and has never lived with her father though she now spends weekends with him. There must be a proportionality exercise imported into that threshold which takes into account the father’s conduct. In relation to private life, the new test of having lived half one’s life in the UK (replacing the test of 20 years residence) had to be approached qualitatively rather than mathematically discounting time spent in prison. In any event, the Claimant could not be said to be integrated in the UK given his series of crimes and there was no reason he could not reintegrate into Jamaica.

The Court found that there was nothing of substance to indicate that the second and third limbs of J (regarding consideration of new matters) were not met and there was nothing to show, in relation to the fourth limb of J, that the Secretary of State should have used her discretion differently. The reason the Claimant was not deported after his original appeal was unsuccessful was that he evaded detention and his repeated attempts to abscond or defeat removal mitigated any argument that Secretary of State should have used her discretionary powers to grant a right of appeal.

Wagner (advocates’ conduct – fair hearing) [2015] UKUT 00655 (IAC)

Interesting and to some degree rare decision by the Upper Tribunal to allow the Appellant’s appeal following the rude and aggressive behaviour of the UK BA Presenting Officer during the Appellant’s appeal hearing.

(i) Legitimate advocacy does not extend to aggressive questioning of, or confrontation with, a party or witness. The Tribunal should intervene where this occurs.
(ii) Similarly, mere comments by an advocate under the guise of questioning are improper and may also require judicial intervention.
(iii) Improper conduct on the part of an advocate, unchecked and unrestrained by judicial authority and hearing management, can potentially render a hearing unfair.

[British Lawyer]

New immigration and nationality fees for 2016 to 2017: <noindex>https://www.gov.uk/government/news/new-immi...or-2016-to-2017</noindex>

 

The main changes are:

 

- small increases (2%) for visit, study and work visas

- fees for settlement, residence and nationality will increase by 25% in 2016–17

- targeted increases have been applied to premium services, such as the priority visa service

[British Lawyer]

MAC’s main recommendations for the Tier 2 category changes:

 

•We recommend that the best way for the Government to achieve its aim of restricting volumes under Tier 2 and focusing on more highly skilled migrants is through price;

•We recommend that the cost of Tier 2 recruitment be raised via higher overall minimum salary thresholds and the introduction of an Immigration Skills Charge;

•We recommend that use of the Tier 2 (Intra-company Transfer) route for third-party contracting be moved into a separate route and a higher salary threshold (£41,500) be applied;

•We do not recommend that Tier 2 (General) is restricted only to occupations on an expanded shortage occupation list; and,

•We do not recommend restricting automatic work rights for dependants or an automatic sunsetting of occupations on the shortage occupation list.

 

 

[British Lawyer]

Январь 2016

 

Очень много изменений и судебный решений, в сжатом варианте получилось 10 страниц: <noindex>http://www.legalcentre.org//files/imm%20di...jan%202016.docx</noindex>

[British Lawyer]

Рассматривают закрытие категории Tier 1 Investor.

 

Из циркуляра ILPA практикующим иммиграционным юристам:

 

Парламент сейчас рассматривает вопрос от закрытии категории Tier 1 Investor. Мол, много обмана...

 

"Baroness Hamwee and Lord Paddick (Liberal Democrat) have tabled an amendment to the Bill proposing the abolition of the Tier 1 investor visa".

 

Однако.

 

[British Lawyer]

Landlords right to rent checks: guide: <noindex>https://www.gov.uk/…/p…/landlords-right-to-rent-checks-guide</noindex>

[British Lawyer]

Potential changes to Tier 2 (ICT) route: <noindex>http://www.parliament.uk/business/publicat...16-01-25/23985/</noindex>

[British Lawyer]

Более сложный тест для продления визы мужа/жены - A2 CEFR.

 

Собственно говоря, новость: New A2 English requirement in the family route: <noindex>https://www.gov.uk/government/news/new-a2-e...he-family-route</noindex>

 

"Non-EEA national partners and parents on the family route will need to pass a speaking and listening test at level A2 in order to qualify, after two-and-a half-years in the UK, for further leave to remain on the five-year partner or parent route to settlement.".

[fregat222]

Назван самый унылый город Великобритании

 

Национальная статистическая служба Великобритании опубликовала отчет, согласно которому самым унылым городом страны оказался Ливерпуль (родина The Beatles), а самые счастливые люди живут на Западных островах. Об этом сообщает "Интерфакс" со ссылкой на The Daily Mail.

 

Отчет статистической службы стал результатом опроса 300 тыс. человек по всей Великобритании, длившегося с 2012 по 2015 год. Респондентов просили определить их уровень счастья, указав в анкете цифру от одного до десяти (чем выше, тем больше условий для счастливой жизни).

 

В тройку лучших мест для беззаботной жизни также вошли Оркнейские острова и Северо-Шотландское нагорье.

 

На втором месте после Ливепуля расположился Вулвергемптон, замкнул тройку анти-лидеров Северный Манчестер.

 

Ян Брукфилд, мэр Вулвергемптона, назвал подобный рейтинг противоречивым. По его словам, несчастных в его городе не меньше, чем в других населенных пунктах страны, зато количество спокойных граждан, живущих без чувства тревоги, больше, чем где бы то ни было в Великобритании.

 

 

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[British Lawyer]

- OLO and Others (para 398 - “foreign criminal”) [2016] UKUT 00056 (IAC)

 

A person sentenced to a term of 12 months imprisonment made up of consecutive terms is not a ‘foreign criminal’ within the meaning of the deportation provisions of the Immigration Rules and is not therefore subject to paragraph 398 of those Rules.

 

- R (on the application of Reah) v Secretary of State for the Home Department IJR [2016] UKUT 00055 (IAC)

 

Grubb, J dismisses this judicial review of a refusal to grant leave to remain outside the Immigration Rules under Article 8 of the European Convention on Human Rights.

The appellant was a Canadian national who entered the UK with entry clearance based on UK ancestry but subsequently overstayed when she did not renew her leave to enter. Her application was based on her family life with her three adult step-children from her first relationship and her family life with her current partner and his child. She had lived with and cared for her step-children for nine years, including after her first partner’s death. The eldest was now 24 years old but all three step-children lived with her and one had continuing needs as a result of his ADHD condition. She did not live with her new partner and his child as they wanted to acclimatise the children to their relationship before moving in together.

 

The judge found that the Secretary of State had properly considered the applicant’s family life with her three step-children and that despite the tragic circumstances, these were not exceptional or compelling. Their relationships were close, cemented through the loss of their father and her support, but there was no evidence to suggest that they were not growing towards making their own way in the world. In relation to the applicant’s family life with her new partner, the judge accepted that Appendix FM does not address all the issues in a relationship that is a close one but does not involve cohabitation. However, the judge found that she would fail to establish that there ‘exceptional’ or ‘compelling’ circumstances based on her relationship. She had formed the relationship when she had no expectation of remaining in the UK and for the most part when she was living unlawfully in the UK. The judge also found that the Secretary of State had fully considered the best interests of the child in her response to the pre-action protocol letter making this issue academic.

[British Lawyer]

UK BA: Можете подавать заявления без анкет (EU law, EEAFM, EEAPR и т.п.):

 

According to the UK BA, the applicants may not need to complete the EEA law (EEAFM, EEAQP, EEAPR etc) applicaion forms: <noindex>https://www.gov.uk/government/publications/...on-applications</noindex>

 

"Persons applying for a document confirming a right of residence under EU law may use the

relevant form as set out above.

 

However, applicants do not have to use these forms and an application for any of the

documents mentioned above must not be refused because it has not been made on the appropriate form.

 

A letter asking for a document to be issued, or an application made on one of the previous

forms (see below) is acceptable, provided the applicant:

 

- submits the specified fee with the application

- gives their biometric information, if they are a non-EEA national applying on or after 6 April 2015".

[British Lawyer]

R (on the application of Bhudia) v Secretary of State for the Home Department (para 284(iv) and (ix)) IJR [2016] UKUT 00025 (IAC)

 

(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.

 

(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.

 

(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.

 

(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem [1999] AC 450 applied.

 

[British Lawyer]

Home Office response to the Children’s Commissioner’s report on the impact on children of the minimum income threshold for sponsoring family migrants: <noindex>https://www.gov.uk/government/publications/...ncome-threshold</noindex>

[British Lawyer]

What did David Cameron ask for in his bid to change the UK's terms of EU membership before holding a referendum on whether to stay in or leave the EU ? See <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7497</noindex>

[British Lawyer]

Практический пример легализации через детей.

 

Обратилась пара, граждане России. Визы закончились хх количесво лет тому назад. На момент обращения их ребенку, рожденному в UK, исполнилось 10 лет.

 

Зарегестрировали ребенка британским гражданином на основании Правила по рождению и проживанию детей в UK на протяжении 10 лет. Заявление ребенка рассмотрели за 3 месяца.

 

После этого подали заявление на легализацию родителей. Рассмотрели заявление за 5.5 месяцев. Родили получили BRP на 2.5 года, т.е. по принципу 10 year route.

 

[British Lawyer]

Changes to the current Apply Online facility for Premium Service Centre appointments

 

Dear customer

 

Changes to the current Apply Online facility for Premium Service Centre appointments

 

As part of UKVI’s customer service improvements, the Online Application Service for customers who wish to book Premium Service Centre appointments has replaced previous application methods.

 

On 28 January the new Online Application Service was launched on www.gov.uk for Premium Service Centre appointments. From this date you can no longer book a new standalone appointment using the old UKVI Apply Online facility.

 

However up until noon on Friday 26 February you can still log in to the old UKVI Apply Online facility and manage any appointments which have been started on it.

 

What this means for you

 

If you are part way through booking a Premium Service Centre appointment on the old UKVI Apply Online system, and have paid the appropriate Immigration Health Surcharge we strongly encourage you complete the booking process as soon as possible, and no later than noon on Friday 26 February 2016.

After this date you will no longer be able to access the old UKVI Apply Online system to complete your appointment booking and you will need to complete a new booking on the Online Application Service and where you may be required to pay health surcharge again.

 

Unfortunately, it is not possible to transfer any existing health surcharge payment to a new appointment booking, therefore you will need to obtain a refund of any health surcharge paid as part of your partially completed UKVI Apply Online booking.

 

Refund requests should be sent to PSCAppointmentRefunds@homeoffice.gsi.gov.uk. Please include your name, date of birth, nationality, passport number and health surcharge reference number. Refunds are usually processed within 90 days.

 

For further information about the Premium Service, please visit the Visas and Immigration section on www.gov.uk.

 

Kind regards

 

George Shirley

Director of Temporary Migration

[British Lawyer]

Immigration Digest February 2016

 

· Guidance on law enforcement agencies (LEAs) making requests to the Home Office to allow a foreign national to enter or remain in the UK to give evidence at a trial: <noindex>https://www.gov.uk/government/publications/foreign-witnesses</noindex>

 

· If a visa or a migrant’s passport is lost overseas: <noindex>https://www.gov.uk/government/publications/...ng-a-visa-ecb17</noindex>

Important point: “If required, you may ask for supporting documentation to establish that their circumstances have not changed. ECOs should use i-search to obtain information on an applicant’s leave granted in the UK. If information is not available on i-search you must make a referral to Evidence and Enquiry.”

 

· Handbook on European law relating to asylum, borders and immigration, aimed at non specialist lawyers from the European Union Agency for Fundamental Rights covering EU and ECHR law on 3rd country nationals (not EEA citizens): <noindex>http://www.echr.coe.int/Documents/Handbook_asylum_ENG.pdf</noindex>

 

· Rule imposing mandatory refusal for deception is not ultra vires says Court of Appeal: <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2016/85.html</noindex>

 

· Sending an immigration decision to an email address is effective service, subject to rebuttal: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/57.html</noindex>

 

· The Court of Appeal has returned to the issue of “totally without merit” certificates in judicial review cases. These certificates can be imposed by a judge who refuses permission

for an application for judicial review on the papers and it prevents the applicant from seeking an oral hearing. There is a right of appeal to the Court of Appeal but with no right to an oral hearing: <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2016/82.html</noindex>

 

· Appeal lapses if leave is granted unless active notice is given to tribunal: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/54.html</noindex>

 

· Tribunal interprets spouse extension rule on overstay, required documents and language certificate:

 

(i) The correct construction of paragraph 284(iv) of the Immigration Rules is that the applicant has a period of 28 days within which to make an extension of stay application, measured from the date immediately following the last day of leave in the United Kingdom.

(ii) The purported requirement in Form FLR(M) that an application for further leave to remain in the United Kingdom as a spouse be supported by certain correspondence in specified terms is unlawful.

(iii) The requirement previously enshrined in paragraph 284(ix)(a) of the Immigration Rules that an applicant provide an English Language test certificate in specified terms is satisfied where the applicant has already provided a certificate of this kind to the Secretary of State which has been accepted as valid.

(iv) The jurisdiction of the Upper Tribunal in judicial review proceedings to determine any of the issues raised is not extinguished by the Secretary of State’s withdrawal of the decision under challenge: R v Secretary of State for the Home Department, ex parte Salem[1999] AC 450 applied.

·

[British Lawyer]

Immigration Digest February 2016/3

 

Tier 2 Review

 

The Migration Advisory Committee has published the outcome of its review of the Tier 2 Points-Based System. Its recommendations are being considered by the Home Office which has indicated that any changes would not take effect before 6 April 2016.

 

The Committee has proposed increased minimum salary thresholds, set at £30,000 for migration under the Tier 2 (General) route and for short-term Intra-Company Transfers, with no regional differentiation and the recommendation that any further increases are made by raising occupational minimum thresholds. The Committee advises that public sector employers should not be exempt from the increased threshold but supported with a phased transition to the higher salary threshold. Further exemptions could be considered for certain creative occupations. The Committee also suggests that, in the short term, the Government could consider giving temporary priority to low paid public sector jobs when the immigration cap is reached. For new entrants within Tier 2 (General) and for graduate trainees under the Intra-Company Transfer scheme, a lower minimum salary level of £23,000 is proposed.

 

The Immigration Skills Charge is welcomed by the Committee and a fixed fee of £1000 recommended, payable on application for a certificate of sponsorship in all Tier 2 routes, including Intra-Company Transfer.

 

Regular review of the shortage occupation list is recommended with stakeholders required to submit more comprehensive evidence on how they are addressing skills shortages in order for posts to be retained on the list.

 

Changes to the Intra-Company Transfer route are proposed, including the requirement that those entering under this route pay the immigration health surcharge. The Committee considers that sponsors should provide more detailed justification of the need to transfer the senior or manager or specialist to the UK and that their qualifying period of employment with the overseas company should be extended to two years for both the short and long-term routes. The Committee also recommends the creation of a separate route for Intra-Company Transfers where the employee is transferred to undertake work for a third party organisation. It advises that the Government commission an in-depth review of skills shortages within the IT industry where these arrangements are common and an elevated salary threshold of £41,500 for these.

The Migration Advisory Committee has advised that dependents of Tier 2 migrants should not besubject to restrictions on their right to work in the UK

 

Reporting problems with Biometric Residence Permits, UK Visas and Immigration, 18 January 2016

 

On 18 January we’re changing the way in which customers, who have applied from outside of the UK, notify the Home Office of an issue or problem with a Biometric Residence Permit (BRP). This includes those who:

 

• have been unable to collect their permit within 10 working days of arriving in the United Kingdom;

• need someone to either collect their BRP on their behalf or accompany them to collect their BRP – because they are have a serious illness or disability, or they are under 18 and cannot collect their permit at the same time as their parent or legal guardian collects their own permit;

• have lost their permit or it has been stolen; or

• identify a mistake on their permit.

 

Previously customers were advised to contact us by e-mail, but should now use the on-line service at: www.gov.uk/biometric-residence-permits

The following in-boxes, previously used for reporting an issue with a BRP, will close on 30 January 2016.

 

• BRPCollection@homeoffice.gsi.gov.uk

• RACollection@homeoffice.gsi.gov.uk

• 3PCollection@homeoffice.gsi.gov.uk

• BRPError@homeoffice.gsi.gov.uk

• BRPLost@homeoffice.gsi.gov.uk

 

E-mails received on or after 30 January will be advised to use the on-line service to report issues or problems.

 

Please do get in touch should you have any questions by e-mailing ADC_ENQUIRIES@homeoffice.gsi.gov.uk.

 

Changes to the current Apply Online facility for Tier 4 and standalone appointment booking for Premium Services

 

The newest of UKVI’s customer service improvements will be the release of our Online Application Service for Tier 4 customers, applying from within the UK, which will replace current application methods, and offer the following benefits:

 

• The application form is shorter.

• The questions are more logically ordered and now take as little as 15 minutes to complete.

• Log on is now easier, requiring just an e-mail address and password.

• The service integrates with the Immigration Health Surcharge web site, thus reducing the need to input data twice.

• The customer can check and modify their answers online at any point prior to paying their health surcharge.

• The service can be accessed on all computers, mobile and tablet devices.

 

Standalone appointment booking for Premium Services will also move from the current UKVI Apply Online system to the new Online Application Service. Accessed via www.gov.uk, customers will get a smoother user experience, and be able to view more available appointments.

 

[British Lawyer]

Asylum Policy Instruction Statelessness and applications for leave to remain: <noindex>https://www.gov.uk/government/uploads/syste..._v2.0__EXT_.pdf</noindex>

 

The big change is to interview policy. Shockingly for a protection application, and contrary to UNHCR guidance, the Home Office has given itself power to refuse without an interview. The guidance says:

 

An interview will normally be arranged to assist the applicant to fully set out their case for being considered stateless and to submit any other relevant evidence. In other instances, questions about evidence submitted as part of the application may be resolved through additional written communications.

 

Where the applicant does not complete all relevant sections of the application form, caseworkers may request the missing information by writing to the applicant or their legal representative if they have one.

 

A personal interview will not be required if there is already sufficient evidence of statelessness, it is clear that the individual is not admissible to another country, and is eligible for leave to remain on this basis. An interview will not be arranged, and the application may be refused, where recent and reliable information including the applicant’s previous evidence or findings of fact made by an immigration judge, have already established that the applicant is not stateless or is clearly admissible to another country for purposes of permanent residence and where no evidence to the contrary has been provided.

 

If the applicant fails to attend an interview without a reasonable explanation or fails to reply to a written request for information, the application may be refused on the basis that they have failed to provide the required evidence, taking into account the general grounds for refusal in paragraph 322 (9) and(10) of the Immigration Rules.

Interviews will be conducted and recorded in accordance with the standards set out in the published policy on Asylum Interviews.

The other significant change is on voluntary renunciation where the guidance now states

 

…The question of an individual’s free choice is not relevant when determining eligibility for recognition as stateless under Article 1(1) of the 1954 Convention, even if it appears that the applicant may have been motivated by the prospect of securing leave to remain as a stateless person. The applicant must nevertheless be asked the reason for renunciation and the possibility of re-acquiring that nationality must be examined very carefully in such cases.

 

Loss of nationality and consequential statelessness will not necessarily prevent re-admission to the country concerned. Where there is evidence to suggest that someone has deliberately renounced nationality in an attempt to benefit from stateless provisions, and there remains an option for them to approach the relevant State State to reacquire their former nationality, the stateless application should be refused.

 

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АККУМУЛЯТОРЫ ДЛЯ ТЕЛЕФОНОВ И НОУТБУКОВ ЗАПРЕТИЛИ ПРОВОЗИТЬ В САМОЛЕТАХ

 

Международная организация гражданской авиации (ICAO) запретила перевозку литий-ионных аккумуляторов в багаже на пассажирских самолетах.

 

Об этом сообщает Reuters. Агентство не уточняет, можно ли будет провозить аккумуляторы в ручной клади.

 

Ограничения приняты из-за пожароопасности аккумуляторов. Решение вступит в силу 1 апреля 2016 года. Оно может быть отменено, когда для перезаряжаемых батарей будет создана огнестойкая упаковка.

 

Запрет будет обязательным для всех 191 стран-участниц ICAO, включая Украину.

 

Стоит отметить, что литий-ионные аккумуляторы используются в подавляющем большинстве смартфонов, фотоаппаратов, ноутбуков и прочей электронике. Ранее аналогичный запрет был введен на неперезаряжаемые литий-металлические батарейки, чаще всего используемые в часах.

 

В последние годы не было ни одного серьезного происшествия в гражданской авиации из-за возгорания литий-ионного аккумулятора.

 

 

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[fregat222]

Пассажиров успокоили: с телефонами и ноутбуками будут пускать в самолеты

 

В Международной организации гражданской авиации (ICAO) уточнили, что запрет на перевозку литий-ионных аккумуляторов в качестве груза не касается аккумуляторов, которые перевозятся в ручной клади пассажиров, сообщает "Европейская правда".

 

В организации объяснили, что запрет распространяется только на аккумуляторы, которые перевозятся в качестве груза (например, оптом на продажу) в грузовых отсеках пассажирских самолетов. То есть, он не касается электронных гаджетов пассажиров, которые они берут с собой в салон самолета.

 

"Этот запрет не применяется к литий-ионным аккумуляторам, которые упакованы вместе с оборудованием, или литий-ионным аккумуляторам, находящимся внутри оборудования", – отметили в ICAO.

 

Напомним, 23 февраля стало известно, что Международная организация гражданской авиации приняла решение запретить из соображений пожарной безопасности провоз литий-ионных аккумуляторов в самолетах в качестве груза. Запрет вступит в силу с 1 апреля 2016 года и будет сохраняться до тех пор, пока производители не разработают новый стандарт огнезащитного корпуса для батарей.

 

 

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[British Lawyer]

Immigration law update March 2016

 

•According to the UK BA, it is possible to backdate Permanent Residence status date, provide the application is successful and the applicant provides sufficient documentary evidence and a corresponding note with the application, requesting to back date the Permanent Residence Certificate date

 

•Immigration: skill shortages: Government Response to the Committee's Fifth Report of Session 2015-16 - Home Affairs: <noindex>http://www.publications.parliament.uk/pa/c...f/857/85704.htm</noindex>

 

 

•26th Report - Draft European Union Referendum (Date of Referendum etc.) Regulations 2016 (published 26 February 2016): <noindex>http://www.publications.parliament.uk/pa/l...g/105/10502.htm</noindex>

 

•Abdul (section 55 – Article 24(3) Charter) [2016] UKUT 00106 (IAC)

 

(i) There is no hierarchy of weight or importance in the various considerations recited in regulation 21(6) of the EEA Regulations. The weight to be attributed to each factor will vary according to the fact sensitive context of the individual case.

(ii) Where it is contended that the decision maker and/or the First-tier Tribunal (FtT) has acted in contravention of section 55 of the Borders, Citizenship and Immigration Act 2009, the Upper Tribunal will scrutinise the degree of engagement with all material evidence and, in particular, will search for clear findings in the decision of the FtT of what the best interests of any affected child are.

(iii) Article 24(3) of the EU Charter of Fundamental Rights creates a free standing right (although not absolute).

(iv) Where this right is engaged, a failure by the decision maker and/or the FtT to acknowledge it and to decide accordingly may constitute a material error of law.

 

•R (on the application of Kasicky) v Secretary of State for the Home Department (Reg 29AA: interpretation) IJR [2016] UKUT 00107 (IAC)

 

1. In reg 29AA(3) of the Immigration (European Economic Area) Regulations 2006, the word “appearance” refers to P’s formal presence at his appeal.

2. In ascertaining whether the exception in reg 29AA applies, the possibility of managing risk by detention or conditions is a factor to be taken into account.