Важные судебные решения и новости для иммигрантов

[British Lawyer]

 

Response of the Immigration Law Practitioners’ Association to the Home Affairs Select Committee Inquiry into the Home Office's use of English-language testing in relation to the issuing of visas, 06 June 2016

 

<noindex>https://legalcentre.org//files/ILPA-evidenc...e-testing-2.pdf</noindex>

 

 

 

[British Lawyer]

- Personal Information Form (PIF), Home Office, 15 June 2016. The home office is piloting a “Personal Information Form”, a written statement to be completed pre interview, in both Scotland and Liverpool: <noindex>http://www.legalcentre.org//files/Prelimin...orm-BLANK-1.doc</noindex>

 

 

- Domestic workers in private households recent guidance: <noindex>https://www.gov.uk/government/publications/...vate-households</noindex>

[fregat222]

Суд ЕС разрешил не платить пособия на детей граждан других стран ЕС

 

Суд признал, что отказ в выплате детских пособий негражданам оправдан необходимостью защищать государственный бюджет

 

Страны Евросоюза не обязаны платить пособия на детей граждан других государств ЕС, которые не имеют действующего разрешения на проживание. Такое решение вынес суд Европейского Союза в Люксембурге, сообщает Deutsche Welle со ссылкой на пресс-службу суда во вторник, 14 июня.

 

Суд ЕС отклонил иск, который Еврокомиссия ранее подала к Великобритании, обвинив ее в нарушении законодательства ЕС по координации систем социального обеспечения. Причиной для подачи иска стали жалобы проживающих в этой стране граждан других государств ЕС, которым британские власти отказывали в выплате определенных видов социальных пособий из-за отсутствия разрешений на проживание в стране.

 

Брюссель обвинил Лондон, в частности, в нарушении собственных законов, а также в дискриминации граждан других стран Евросоюза. Суд ЕС в свою очередь признал, что хотя отказ в выплате детских пособий и является "непрямой дискриминацией", он оправдан необходимостью государства "защищать свой бюджет".

 

 

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[British Lawyer]

UK & EEA Immigration Law Update from the Legal Centre, www.legalcentre.org, 077 91145 923, 0330 001 0342

 

•UK BA has started issuing certified refusals in relation to Appendix FM applications (“spouse” etc visas). This is all sounding like a cynical practice-run for the extension of “deport first appeal later”. Therefore a Premium/Same Day application may give a better chance of success, as it is possible to discuss the issues and probably get 14 days to sort the things out v a certified refusal (“deport first, appeal later”) situation

Recent case-law:

 

•Ruhumuliza (Article 1F and “undesirable”) [2016] UKUT 00284 (IAC)

 

The fact that a person is excluded from the Refugee Convention does not of itself mean that his presence in the UK is undesirable within the meaning of the Immigration Rules

 

•R (on the application of Khurram) v Secretary of State for the Home Department (effective service; 2000 Order) IJR [2016] UKUT 00281(IAC)

 

1. For the purposes of Art 8ZA(2) of the Immigration (Leave to Enter and Remain) Order 2000 (SI 2000/1161)(as inserted by SI 2013/174 with effect from 12 July 2013), a notice is not sent to a postal address “provided for correspondence by the person” if the address is provided to the Secretary of State by a third party such as a sponsor educational institution unless the third party is the authorised agent of the person.

 

2. However, where no postal address (or e-mail address) for correspondence has been provided, an address provided by a third party may be the “last-known or usual place of abode” of the person within Art 8ZA(3)(a) to which a notice may be sent.

 

•Johnson (deportation – 4 years imprisonment) [2016] UKUT 00282 (IAC)

 

When a foreign offender has been convicted of an offence for which he has been sentenced to imprisonment of at least 4 years and has successfully appealed on human rights grounds, this does not prevent the Secretary of State from relying on the conviction for the purposes of paragraph 398(a) of the Immigration Rules and s.117C of the 2002 Act if and when he re-offends even if the later offence results in less than 4 years imprisonment or, indeed, less than 12 months imprisonment

 

•R (on the application of MG) v First-tier Tribunal (Immigration and Asylum Chamber) (‘fresh claim’; para 353: no appeal) IJR [2016] UKUT 00283 (IAC)

 

1. A decision that further submissions do not amount to a ‘fresh claim’ under para 353 of the Immigration Rules is not a decision to refuse a protection or human rights claim and so does not give rise to a right of appeal to the First-tier Tribunal under s.82 of the Nationality, Immigration and Asylum Act 2002 (as amended by s.15 of the Immigration Act 2014).

 

2. Whilst the First-tier Tribunal must determine whether it has jurisdiction to entertain an appeal, it cannot decide whether a decision that further submissions do not amount to a fresh claim under para 353 was lawful or correct. Such a decision can only be challenged on public law principles in judicial review proceedings.

 

•R (on the application of Shehu) v Secretary of State for the Home Department (Citizens Directive: no suspensive appeals) IJR [2016] UKUT 00287 (IAC)

 

The redress procedure required by articles 31 and 35 of the Citizens Directive does not make it necessary to treat EEA appeals of any kind as suspensive, since arrangements can be made, on the conditions set out in article 31.4, for allowing the subject to submit his defence in person, which is reason enough for declining to treat the decision of the Court of Appeal in Ahmed as per incuriam for not dealing with article 35.

 

•Hamat (Article 9 – freedom of religion) [2016] UKUT 00286 (IAC)

 

(i) Article 9 - the right to freedom of thought, conscience and religion – is a distinctive feature of the Human Rights Act to be considered separately from Article 8 when it applies.

 

(ii) Article 9 permits the same structured approach to the assessment of an Article 8 human rights claim identified by Lord Bingham in his 5-stage approach set out in paragraph 17 of Razgar[2004] UKHL 27 save for the omission of the ‘economic well-being of the country’ criterion in Article 9(2).

 

(iii) In an appeal where the violation is alleged to occur by reason of removal from the United Kingdom, the test of proportionality governs the exercise of Article 9 rights and not the more stringent approach involving whether the returnee is at risk of a flagrant denial or gross violation in his home country.

 

(iv) A further distinctive feature is the creation of a statutory right in s.13 of the Human Rights Act 1998, independent of Article 9, enabling a religious organisation to benefit from the Convention right to freedom of thought, conscience and religion alongside its members collectively and individually.

 

(v) Matters relied on by way of a positive contribution to the community are capable in principle of affecting the weight to be given to the maintenance of effective immigration control and should not be excluded from consideration altogether but are unlikely in practice to carry much weight.

 

(vi) The operation of the Immigration Rules will not amount to an unlawful interference in the selection of a religious leader when the personality of the appellant has not influenced the decision and where anybody in the same position as the appellant who fails to meet the requirements of the Rules is likely to be refused.

 

 

 

 

 

 

 

 

[British Lawyer]

UK & EEA Immigration Law Update from the Legal Centre, www.legalcentre.org, 077 911 45 923

 

•The Home Office approach to interpreting ‘consanguineous relationship’ in family reunion applications is the same meaning as in the Marriage Act 1949, the Marriage (Prohibited Degrees of Relationship) Act 1986 and the Civil Partnership Act 2004. The UK BA is in the process of revising the guidance on family reunion and the revised version will contain links to the relevant Acts so that caseworkers are able to refer to them easily. The revised guidance will be published on Gov.UK later this month

 

•The UK BA: the Immigration Rules are very clear that takeaways cannot sponsor SOL chefs

 

•Asylum – Deportation figures – UK BA response: <noindex>http://www.parliament.uk/business/publicat...16-06-07/39763/</noindex>

 

•Nkomo (Deportation: 2014 rights of appeal) [2016] UKUT 00285 (IAC)

 

1.The No 3 Commencement Order of the 2014 Act, SI 2014/2771, extends the new appeals provisions to identified persons, but the amendment of it in SI 2014/2928 further extends those provisions to identified decisions.

2.In consequence, a person against whom a deportation decision was made in the period 10 November 2014 – 5 April 2015 may have no right of appeal if the decisions actually made carry rights of appeal only under the new appeals provisions. (Note: A further change was made to the commencement provision with effect from 2 March 2015, which did not fall for consideration on the facts of this case.)

 

[British Lawyer]

UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org, 077 911 45 923

 

•The UK BA may in some cases accept a visitor visas status in order to “top up” the migrant’s lawful leave so the migrant could apply for Settlement under the 10 year Long Residence route

 

•According to the UK BA, takeaways cannot sponsor SOL chefs, so no Tier 2 (General) application may succeed

 

•Average waiting times for an immigration appeal is around 12 to 18 months in the UK now

 

•The UK's family reunion rules: <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7511</noindex>

 

•Migrant Workers: Written question: What plans his Department has to help fill potential skills shortages in junior doctor and teaching positions resulting

from the £35,000 income requirement for settlement of Tier 2 skilled workers over the next five yearshttp://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-06-15/40839/

 

•Leaving the EU: How might people currently exercising free movement rights be affected: <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7525</noindex>

 

•Landmark judgment strikes down Home Office policy of assessing age of asylum seekers based on physical appearance: <noindex>http://www.bailii.org/cgi-bin/format.cgi?d...=(title:(+AA+))</noindex>

 

 

 

[British Lawyer]

UK & EEA Immigration Law Update from the Legal Centre, www.legalcentre.org, 07791145923

 

•Parliamentary Research Briefings on the EU Referendum have been published by the House of Lord and House of Commons: <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7639</noindex>

 

•The Government has launched an interim national Unaccompanied Asylum Seeking Children (UASC) transfer protocol 01 July 2016: <noindex>https://www.gov.uk/government/news/governme...igrant-children</noindex>

 

•An interesting Tier 2 case which was heard before Lord Bannatyne in the Outer House of the Court of Session. You will see that the petitioners were initially refused a sponsor licence on genuineness grounds and in the JR, the Home Office raised a preliminary point in that there was an alternative remedy in a new application. Lord Bannatyne is very critical of the Home Office in the short decision : <noindex>https://www.scotcourts.gov.uk/search-judgme...00-ff0000d74aa7</noindex>

 

•Strategic Legal Research on the Registration of Children as British Citizens and the Good Character Requirement, Project for the Registration of Children as British Citizens: <noindex>https://prcbc.wordpress.com/research/</noindex>

 

•James Brokenshire, The Minister for Immigration, response to question on EU nationals living in the UK, House of Commons, Hansard Column 607, 4 July 2016: <noindex>https://hansard.parliament.uk/commons/2016-...nalsUKResidence</noindex>

 

 

 

 

[British Lawyer]

UK & EEA Immigration Law updates from the Legal Centre, www.legalcentre.org, 07791145923

 

•The labour market for nurses in the UK and its relationship to the demand for, and supply of, international nurses in the NHS, Institute for Employment Studies, report commissioned by Migration Advisory Committee (MAC), 7 July 2016. This report examines the recruitment of non-European Economic Area (EEA) nurses at a trust level in the NHS in England: <noindex>https://www.gov.uk/government/publications/...urses-in-the-uk</noindex>

•EU Nationals in the UK, Opposition Debate in the House of Commons, Hansard 6 July 2016, column 937: <noindex>https://hansard.parliament.uk/Commons/2016-...ationalsInTheUK</noindex>

 

[British Lawyer]

UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org, 07791145923

 

 

• The Home Office rights of appeal guidance does not deem a Domestic Violence Settlement application as human rights claim. In order for the Settlement (Domestic Violence) application to raise a human rights (appeal) point an applicant may at the same time as lodging the SET (DV) application also lodge an FLR(FP) application with a cover letter explaining the secondary nature of the application which should be stayed pending consideration of the SET(DV). The Fee Regulations make provision for multiple applications so that only the highest fee will be payable in this scenario

 

• Version 2.0 of the Home Office country information and guidance on Albanian blood feud asylum claims: <noindex>https://www.gov.uk/government/public...n-and-guidance</noindex>

 

• Asylum Process Instruction: Processing an asylum application from a child, UK Visas and Immigration, 12 July 2016:

<noindex>https://www.gov.uk/government/public...ld-instruction</noindex>

 

• New employers’ guide to right to work checks issued by Home Office 12 July 2016:

<noindex>https://www.gov.uk/government/upload..._-_July_16.pdf</noindex>

 

The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force today, 12 July 2016.

 

Recent case-law

 

• O.M. v. Hungary (no. 9912/15), [Article 5 ECHR], 5 July 2016

 

The Fourth Section of the European Court of Human Rights has given its ruling in the case of O.M. v. Hungary (no. 9912/15) regarding the immigration detention in Hungary of an Iranian LGBT asylum seeker.

 

In June 2014, O.M had arrived in Hungary, where he was apprehended and subsequently applied for asylum. On 25 June 2014, the Office of Immigration and Nationality ordered for the applicant to be detained, referring to the fact that his identity and nationality had not yet been clarified and to the risk of absconding. He was then arrested and placed in a detention facility, where he was kept for 58 days.

 

The Court reiterated that Article 5 ECHR protects individuals against arbitrary interference by a Member State with his or her right to liberty. Any deprivation of liberty will only be lawful when it falls within the exhaustive list of permissible grounds listed in the sub-paragraphs (a) to (f) of Article 5 § 1 ECHR. In addition, detention measures must be prescribed by law and be of a sufficient quality to protect from arbitrariness. The authorities must further carry out a proportionality and necessity analysis, which includes an analysis of alternative means of detention. In this assessment the Court considers the following points relevant: the nature of the obligation arising from the relevant legislation, including its underlying object and purpose; the person being detained and the particular circumstances leading to the detention; and the length of the detention.

 

In the circumstances of the applicant’s case, the Court found that Article 5 § 1 ( ECHR could not serve as a legal basis of the immigration detention. The Court therefore unanimously ruled that the applicant’s detention was arbitrary and unjustified, in violation of Article 5 § 1 ECHR. In particular, the Court found that the Hungarian authorities had failed to make an individualised assessment and to take into account the applicant’s vulnerability in the detention facility based on his sexual orientation. The Court emphasised special care the authorities should exercise when deciding on deprivation of liberty in order to avoid situations which may reproduce the plight that forced asylum seekers to flee in the first place.

 

• A.M. v. the Netherlands (no. 29094/09), [Articles 3, 13 ECHR], 5 July 2016

 

The Third Section of the European Court of Human Rights has given its ruling in the case of A.M. v. the Netherlands (no. 29094/09) concerning the removal of an asylum seeker to Afghanistan in light of the prohibition of torture and of inhuman and degrading treatment and the right to an effective remedy.

 

The case relates to an Afghan national of Hazara origin, who had applied for asylum in the Netherlands. The applicant stated to fear persecution and ill-treatment in Afghanistan for his membership of the communist People’s Democratic Party of Afghanistan and for his involvement in the Revolutionary Guard and the party Hezb-e Wahdat. The Minister for Immigration and Integration rejected his asylum application based on the application of Article 1F of the 1951 Refugee Convention. The Regional Court of The Hague rejected his subsequent appeal. The applicant did not submit a further appeal with the Administrative Division of the Council of State. Instead, the applicant submitted an application to the ECtHR claiming that he would face a real risk of being subjected to treatment contrary to Article 3 ECHR, if expelled from the Netherlands to Afghanistan. He further claimed that he did not have an effective remedy on this point as safeguarded by Article 13 ECHR.

 

Notably, the Court rejected the argument by the government that the applicant had failed to exhaust the domestic remedies, as required by Article 35 § 1 ECHR. The Court observed that a further appeal to the Administrative Jurisdiction Division does not have automatic suspensive effect. This is however required under Article 13 taken together with Article 3 for a domestic remedy to be considered effective.

 

Nevertheless, the Court held that there had been no violation of Article 13 ECHR in conjunction with Article 3 ECHR. Under Article 13 ECHR, Member states are not required to set up a second level of appeal. As the appeal with the Regional Court of the Hague in asylum cases did have an automatic suspensive effect, the applicant had at his disposal an effective remedy for challenging the rejection of his asylum application. In addition, the Regional Court was empowered to rigorously examine any risks of treatment contrary to Article 3.

 

The Court further held that the applicant had also failed to demonstrate that there are substantial risks for believing that he would be subjected to treatment contrary to Article 3 ECHR. The Court observed that the applicant had remained in Afghanistan after the overthrow of the communist regime without encountering any problems with the Taliban. Moreover, the applicant had not been sought-after by the party Jamiat-e Islami or attracted any negative attention from any governmental or non-governmental body or any private individual in the country on account of his communist past or his activities for Hezb-e Wahdat. The Court also considered that there would not be a real risk of ill-treatment for people of Hazara origin. Lastly, there was no general situation of violence to the extent that there would be a real risk of ill-treatment for the general return of people to Afghanistan.

[British Lawyer]

July 2016/2 UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org

“I can help you. Anton Koval, Legal Centre. Direct line: 07791145923”

 

•UK Supreme Court: Residence Test judgment issued, R(on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39, 13 July 2016

 

The UK Supreme Court has now issued its written judgment in R (on the application of The Public Law Project) v Lord Chancellor [2016] UKSC 39 after unanimously allowing Public Law Project’s appeal on the ultra vires issue on the day of the hearing: <noindex>https://www.supremecourt.uk/cases/uksc-2015-0255.html</noindex>

 

•Draft guidance on processing asylum claims from children:

<noindex>https://www.gov.uk/government/publications/...ild-instruction</noindex>

 

•Draft guidance on family tracing:

<noindex>https://www.gov.uk/government/uploads/syste...-tracing-v1.pdf</noindex>

 

•There is no DV application that can be made within the Rules for the spouse of a Refugee with limited leave (whether pre- or post-flight). Hence such an application will be outside the Rules. A Judicial Review (JR) succeeded on these grounds recently in Scotland: <noindex>https://www.scotcourts.gov.uk/search-judgme...00-ff0000d74aa7</noindex> The relevant case on a post-flight spouse failed in the High Court – <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2014/2453.htm</noindex> , but is due to be shortly heard in the Court of Appeal . Applicants may submit SET(DV) application form. Also, if an applicant wants to submit a Human Rights (HR) claim the FLR(FP) form may also be submitted. Further, an applicant may claim fee exemption if the applicant is destitute

 

Recent case-law:

 

•Arshad and Others (Tier 1 applicants – funding – “availability”) [2016] UKUT 00334 (IAC)

 

(i) The effect of the amendment of the regime in paragraph 41/SD of Appendix A to the Immigration Rules via HC628, dated 06 September 2013, is that any application for entry clearance or leave made before 01 October 2013 is to be decided in accordance with the Rules in force on 30 September 2013.

 

(ii) Every applicant for Tier 1 Entrepreneurial status bears the onus of proving satisfaction of all of the material requirements of the Immigration Rules.

 

(iii) The Rules stipulate that every Tier 1 Entrepreneurial applicant have available £50,000 to invest in the proposed business venture. “Available” in this context denotes that the applicant must be in a position to invest this money in his business consequential upon a positive decision of the Secretary of State. The clear import of the Rules is that the investment must be capable of being made almost immediately thereafter.

 

(iv) A mere intention on the part of a Tier 1 Entrepreneurial applicant to invest £25,000 at the outset of the business venture, coupled with a further intention to invest the balance of £25,000 at some unspecified future date from some unspecified source, does not satisfy the Rules

 

•Rexha (S.117C – earlier offences) [2016] UKUT 00335 (IAC)

 

The purpose and intention of Parliament in incorporating section 117C of the Nationality, Immigration and Asylum Act 2002 was to ensure that all of the criminal convictions providing a reason for the deportation decision are to be examined within the framework provided by that section.

 

What is required when undertaking the exercise required by sections 117C(1) to (6) is careful scrutiny of those offences which are on a person’s criminal record which have provided a reason for the decision to deport.

 

The IDIs do not fully reflect section 117C(7) in that it is not necessarily the case that, once a foreign criminal has been convicted and sentenced to more than four years’ imprisonment, he will never be eligible to be considered under the Exceptions

 

•Jan (Upper Tribunal: set-aside powers) [2016] UKUT 00336 (IAC)

 

The decision of the Court of Appeal in Patel [2015] EWCA Civ 1175 entails the view that the Upper Tribunal’s powers to set aside its own decisions are limited to those in rules 43 and 45-6 of the Upper Tribunal Rules

 

•Gurung v The Entry Clearance Officer, New Delhi [2016] EWCA Civ 358 (07 April 2016)

Article 8 is to be assessed as at the date of decision in Entry Clearance cases, the Court of Appeal (CA) has found: <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2016/358.html</noindex>

 

•Ait-Rabah, R (on the application of) v The Secretary of State for the Home Department [2016] EWHC 1099 (Admin) (12 May 2016)

 

Another case here that serves as a warning against attempting to arrive on a visitor visa to marry an EU national while not telling the Immigration Officer that this is in fact your reason for entering the UK. Despite significant amount of documentary evidence substantiating the genuineness of the relationship at the marriage interview, the Claimant’s withholding the true reason for his coming to the UK from the Immigration Officer at Luton Airport proved fatal to his case that he did not enter the country by deception

 

 

 

 

 

 

 

 

[British Lawyer]

July 2016/5, UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org, 07791145923

 

“Anton Koval: I can help you. Book a Skype or phone consultation with me at <noindex>https://legalcentre.org/Initial-Consultation.html”</noindex>

 

•Post-Brexit immigration

 

The results of the referendum on the UK’s membership of the European Union on 23 June 2016 and the absence of plans on how to proceed following the vote in favour of leaving the EU have created enormous levels of uncertainty, not least for EU nationals living in the UK and British citizens at home and abroad worried about the future.

 

Given the uncertainties, there is a shared view that EEA nationals and their family members should be advised to take steps as soon as possible to protect their immigration position by obtaining the best migration status and/or documents to which they are entitled. Suggested steps include applying for a permanent residence card or, if not eligible, obtaining a registration certificate to confirm rights of residence and retaining evidence of exercising treaty rights until eligible for permanent residence. Naturalization as a British Citizen for those with a permanent residence card may also be considered, taking into account any disadvantages such as the loss of another citizenship, particularly citizenship of an EU country, tax consequences or the loss of current EU free movement rights for third country national family members.

 

•The Immigration Act 2016 (Transitional Provision) Regulations

SI 2016 No 712 7 July 2016 <noindex>http://www.legislation.gov.uk/uksi/2016/71...20160712_en.pdf</noindex>

 

•New employers’ guide to right to work checks issued by Home Office 12 July 2016

The Home Office has issued new guidance to employers on right to work checks in light of the new illegal working offences under the Immigration Act 2016 coming into force on 12 July 2016: <noindex>https://www.gov.uk/government/uploads/syste...s_-_July_16.pdf</noindex>

 

•Migrant Workers:Written question - 40839, asked by Carol Monaghan MP, answered by: Nick Boles MP, Department for Innovation, Business and Skills, 27 June 2016: <noindex>http://www.parliament.uk/business/publicat...16-06-15/40839/</noindex>

 

•Commons Library Analysis: The UK's family reunion rules: striking the right balance? House of Commons Library Briefing Paper, 23 June 2016: <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7511</noindex>

 

 

 

 

[British Lawyer]

UK & EEA Immigration Law Digest from the Legal Centre, www.legalcentre.org

 

“I can help. Anton Koval, 07791145923”

 

- Commons Library briefing: The UK's points-based system for immigration: <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7662</noindex>

 

- A short notice inspection of the Home Office response to ‘lorry drops’: <noindex>http://icinspector.independent.gov.uk/wp-c...rops-210716.pdf</noindex>

 

- The Minister for the Cabinet Office, Ben Gummer, today announced the code of practice to support the duty to ensure customer-facing staff can speak fluent English:

<noindex>https://www.gov.uk/government/speeches/writ...ement-july-2016</noindex>

[British Lawyer]

26-07-2016. UK & EEA Immigration Law Updates from the Legal Centre, www.legalcentre.org

 

We can help you: <noindex>https://legalcentre.org/Initial-Consultation.html</noindex>

 

•EEA Nationals and their family members can also apply under the UK Immigration Rules and not only just under the EEA Regulations:

10. EUN1.10 Can EEA nationals apply under the Immigration Rules?

“Yes. If an EEA national wishes to apply under the immigration rules, they are entitled to do so.”.

11. EUN1.11 Do family members of EEA nationals have to apply under the EEA regulations?

“No, they can choose to apply under the Immigration Rules.”.

 

•Fees for judicial review applications hare risen yet again from today, Monday 25 July 2016. A new fees order was quietly laid last Friday: The Civil Proceedings, First-tier Tribunal, Upper Tribunal and Employment Tribunals Fees (Amendment) Order 2016. The fees going up are for the permission stage and they rise by 10%. Other fees remain as they were

 

•EEA citizens and their family members are allowed to use the NHS in the UK, but according to the Home Office the NHS does not count as comprehensive sickness insurance

 

[British Lawyer]

From the UK BA on 26-07-2016:

 

"With effect from 1st August 2016, Naturalization applications submitted without the required document will no longer be sifted out and rejected, but will be accepted and considered in full. This will mean that applications from customer who do not have the required documents will be refused, the application fee will be retained, and only the £80 ceremony fee refunded".

[British Lawyer]

- New Asylum Policy Guidance on Family Reunion, 28 July 2016

<noindex>https://www.gov.uk/government/publications/...ion-instruction</noindex>

 

- According to the UK BA, the new expiry date for the Sponsorship License would be 4 years on from the old expiry date, regardless of the date of application

 

 

 

[British Lawyer]

House of Commons Library Briefing Paper: The Supreme Court on Devolution (27 July 2016)

 

<noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7670</noindex>

 

House of Commons Library Briefing Paper: Brexit: some legal and constitutional issues and alternatives to EU membership (28 July 2016)

 

<noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7214</noindex>

 

[British Lawyer]

01-08-2016, UK & EEA Immigration Law updates from the Legal Centre, <noindex>https://legalcentre.org/Initial-Consultation.html</noindex>

 

NB. This is a tiny bit of the (almost daily !) changes in the UK and EEA Immigration law that I, as a practicing immigration lawyer, believe may be of interest to the members of public. Enjoy !

 

• A list of activities funded in the UK by the European Union asylum, migration and integration fund (AMIF) up to July 2016. May be of interest to those counting the costs of Brexit: <noindex>https://www.gov.uk/government/publications/...ities-july-2016</noindex>

 

• English language test centres: Home Affairs Committee Chair writes to Home Office Permanent Secretary 01 August 2016

 

In a letter dated the 27th July 2016, the Chair of the Home Affairs Committee, Rt Hon Keith Vaz MP, has written to Mark Sedwill, Permanent Secretary at the Home Office, regarding allegations involving English-language test centres.

 

Following evidence given to the Home Affairs Committee on English-language testing in July 2016, the Chair of the Committee has written to the Permanent Secretary with follow-up questions regarding test centres, the Educational Testing Service (ETS) and individuals affected by inaccurate test results:

 

<noindex>http://www.parliament.uk/business/committe...pondence-16-17/</noindex>

 

• Consolidated list of the current and amended EEA Regulations: <noindex>http://www.eearegulations.co.uk/Latest</noindex>

 

• List of the UK Visa Application Centres outside of the UK: <noindex>https://www.gov.uk/find-a-visa-application-centre</noindex>

[British Lawyer]

09 August 2016. UK & EEA Immigration Law News from the Legal Centre. We can help you: <noindex>https://legalcentre.org/Konsultacija-s-Advokatom.html</noindex>

 

•Visas and immigration operational guidance, Chapters 23 to 44: operational enforcement activity, Immigration Enforcement and UK Visas and Immigration, 29 July 2016:

<noindex>https://www.gov.uk/government/publications/...cement-activity</noindex>

 

•Guidance: Contact details for immigration compliance and enforcement teams, UK Visas and Immigration, 28 July 2016:

<noindex>https://www.gov.uk/government/publications/...forcement-teams</noindex>

 

•From the UK BA. “… premium appointments may be used even if the date of the premium appointment is after the expiry of the visa, provided the online application was submitted and Home Office fee paid before expiry of visa. This means that applicants will not be overstaying in such a situation. It is important to note that this only applies for ONLINE applications (and where Home Office fee is paid at same time of submitting online application) not for ones where there is a paper form. If a paper form is required then it is the date of the premium appointment that is the date of the application as defined in the rules”

 

•The Tier 4 Pilot for those applying to study a Masters course for 13 months or less (at the University of Oxford, University of Cambridge, University of Bath or Imperial College London), 5 August 2016 (extra 2 months, 6 months in total, to stay in the UK on completion of their course): <noindex>http://www.ukcisa.org.uk/studentnews/815/C...-4-pilot-scheme</noindex> and <noindex>https://www.gov.uk/government/uploads/syste...e_July_2016.pdf</noindex>

 

•Asylum instruction: Sexual orientation issues in the asylum claim – updated guidance. The Asylum Policy Instruction, ‘Sexual orientation issues in asylum claims’, has been updated and republished on the government website at the following location: <noindex>https://www.gov.uk/government/publications/...he-asylum-claim</noindex>

 

Recent case-law:

 

•U.N. v. Russia (no. 14348/15), [Articles 3, 5 § 4], 26 July 2016

The Third Section of the European Court of Human Rights has given its ruling in the case of U.N. v. Russia (no. 14348/15).

The case relates to a Kyrgyzstan national and ethnic Uzbek, who currently lives in Russia. The applicant arrived in Russia after the mass disorders and inter-ethnic clashes in Kyrgyzstan in 2010. Wanted by the Kyrgyz authorities on charges related to these clashes, including the kidnapping and murder of two law-enforcement officers, he was arrested in Russia in January 2014 and placed in detention. His detention extended on a number of occasions and he was released in July 2015. Following an unsuccessful appeal against the extradition to Kyrgyzstan and a rejection of his asylum application, U.N complained to the ECtHR. He claimed violations of his rights under Articles 3 and 5 § 4 ECHR.

 

The Court reiterated that it had previously held that there were substantial grounds for believing that the applicants would face a real risk of exposure to treatment proscribed by Article 3 ECHR if returned to Kyrgyzstan (e.g. Khamrakulov, Mamadaliyev, Kadirzhano and Mamashev, Gayratbek Saliyev, and Makhmudzhan Ergashev). It hereby referred to the attested widespread and routine use of torture and other ill-treatment by law-enforcement agencies in the southern part of Kyrgyzstan in respect of members of the Uzbek community, the impunity of law enforcement officers, and the absence of sufficient safeguards for the applicants in the requesting country. As such, the diplomatic assurances and monitoring mechanism relied on by the Russia government were insufficient. In addition, the applicant’s criminal conduct did not overturn the absolute prohibition of ill-treatment under Article 3 ECHR. As the applicant belonged to a vulnerable group, the Court found that he would face a real risk of treatment proscribed by Article 3 ECHR, if returned to Kyrgyzstan.

 

Furthermore, the Court reiterated that it had previously found a violation of the ECHR where an applicant was unable to bring about a judicial review during a fixed period of detention. This would also be the case if changes in the fixed period of detention would directly affect its lawfulness. In the present case, the applicant was unable to apply for a judicial review of the lawfulness of his detention for almost four months despite the circumstances that justified the review. The Court found a violation of Article 5 § 4 ECHR.

 

 

[British Lawyer]

•Application for change of conditions of leave to allow access to public funds if your circumstances change: <noindex>https://www.gov.uk/government/publications/...mstances-change</noindex>

 

 

[British Lawyer]

UK & EEA Immigration Law Updates from the Legal Centre, <noindex>https://legalcentre.org/Initial-Consultation.html</noindex>

“We can help you”

•Despite the current UK Government’s commitments to reduce the use of detention and the reform agenda outlined by Government, there is an expansion taking place at the Gatwick airport sites. Brook and Tinsley will expand by 100 places over this summer: <noindex>http://detentionforum.org.uk/another-100-b...ion-by-stealth/</noindex>

•Tzur case on comprehensive sickness insurance, 19 August 2016

The Appellant is an Israeli national and the family member of a Greek student (her ‘sponsor’). The couple purchased a BUPA health insurance policy prior to submitting application for residence documentation. The Policy expressly stated that it did not cover pre-existing medical conditions. The sponsor had an asymptomatic ‘systolic heart murmur’ and the Appellant was an ex-smoker who had smoked for a period of three years in the past. It appears to have been understood that there are no insurance policies in the UK which would cover pre-existing medical conditions. The court was provided email correspondence between Appellant and BUPA which stated that the conditions suffered by the Appellant and her Sponsor were not considered to be excluded conditions.

The First-tier Tribunal upheld the Home Office refusal of residence documentation. At paragraph 31, immigration judge Moxon concludes that it was not disproportionate for the Home Office to refuse the application for EEA residence documents here because the Appellant and her Sponsor did not evidence income sufficient to pay for medical treatment (presumably out of pocket for conditions not covered by insurance) and failed to provide a medical assessment which concluded that they did not have ‘...any medical conditions that are as yet asymptomatic but may develop to require treatment and medication in the near future’.

The rationale appears to have been that the couple did not satisfy the Comprehensive Sickness Insurance requirements because they did not definitively disprove by way of medical assessment that they had no other pre-existing medical conditions which at some point in the future would not be covered by medical insurance and would therefore render them an unreasonable burden on social assistance.

The case will be heard in Upper Tribunal on 1 September 2016.

[British Lawyer]

UK & EEA Immigration Law Updates from the Legal Centre, <noindex>https://www.legalcentre.org/Initial-Consultation.html</noindex> - We can help you

 

•The ETS English language tests, yet again. Evidence had come to light that ETS tests in the case of these two men may have been taken by a proxy. Therefore their leave to remain in the UK was curtailed. The Court of Appeal agreed with the Home Office, quashing the decisions of the Upper Tribunal, which alongside the First-Tier Tribunal had accepted the two men’s arguments on the facts and law on appeal from the decision: <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2016/615.html</noindex>

 

•The President has issued an important determination on the correct approach to multiple applications and appeals from family members, specifically a parent or parents and a child or children with 7 years of residence: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/108.html</noindex>

Generally, where a family with a child or children who have lived in the UK for 7 years or more apply for leave to remain on the basis of paragraph 276ADE(1)(iv), there is an increasingly strong argument that the applications should normally be granted if the period of residence is satisfied and there is no bad behaviour by the applicants, they are well settled and integrated and therefore it would not be reasonable for the child or children to have to start over with their life again in another country. The longer the child has lived in the UK, the stronger the case will be. Other factors working in an applicant’s favour would be lawful presence by the parents and residence as an older child.

 

•The Home Office has issued a new updated version of its policy on section 3C and 3D leave: <noindex>https://www.gov.uk/government/publications/3c-and-3d-leave</noindex> Section 3C and 3D leave is an automatic type of leave created by an amendment to the Immigration Act 1971 so that 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 would be extended during any waiting time for the application to be decided or for an appeal to be decided. Except that is not quite true any more. Section 3C was amended by the Immigration Act 2014 and no longer protects those who make an application and appeal it where the decision was made by the Home Office before the person’s leave expired. Where the decision is made after the person’s leave expired, section 3C continue to work its magic

 

•Periods of study for a qualification below degree level, are capable of being counted as time spent studying at degree level for the purpose of paragraph 245ZX(ha), if the period of study is taught at degree level, and when the qualification itself is added to other periods of study, resulting in the award of a degree: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/181.html</noindex>

 

•An EEA appellant must prove a proxy marriage is lawful in country in which it was contracted and in the relevant EEA Member State: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/180.html</noindex>

 

•The Immigration (Guidance on Detention of Vulnerable Persons) Regulations 2016, SI 2016 No. 847, 23 August 2016. This statutory instrument brings into effect the guidance on adults at risk in immigration detention, and comes into force on 12th September 2016: <noindex>http://www.legislation.gov.uk/uksi/2016/84...20160847_en.pdf</noindex>

 

 

 

[British Lawyer]

Why one should not withdraw the documents from the UK BA (UK Immigration law applications) and travel overseas:

 

Para 34J: <noindex>https://www.gov.uk/guidance/immigration-rul...-stay-in-the-uk</noindex>

 

“here a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been determined, be treated as withdrawn on the date that request is received by the Home Office.”

 

[British Lawyer]

UK & EEA Immigration Law updates from the Legal Centre: www.legalcentre.org/Initial-Consultation.html

 

We can help you

 

01 September 2016:

 

- EU asylum, migration and integration fund activities: July 2016, UK Visas and Immigration, 1 August 2016:

<noindex>https://www.gov.uk/government/publications/...ities-july-2016</noindex>

 

 

- Updated Guidance: Syria: country information and guidance, UK Visas and Immigration, 01 September 2016

<noindex>https://www.gov.uk/government/publications/...on-and-guidance</noindex>

 

 

- Judgment of the Grand Chamber of the European Court of Human Rights: J.K. v Sweden European Court of Human Rights Application no. 59166/12 (02 September 2016)

 

A complex mesh of dissenting and concurring opinions but a violation of Article 3 found in the proposed removal to Iraq of persons who were targeted by Al Qaeda because of business with US clients in Iraq. Interesting for its treatment of the burden of proof in Article 3 cases, aligning this very closely with burden under the 1951 Refugee Convention.

 

- Those irregular/overstayer migrants, who complete 20 years in the UK, may currently apply to regularize their status on the FLR(FP) application form

 

 

 

 

 

[British Lawyer]

UK & EEA Immigration Law updates from the Legal Centre: www.legalcentre.org/Initial-Consultation.html

 

We can help you

 

05 September 2016:

 

•The Home Office is reported to be testing a new online fast track application process for EU migrants in the UK. The Financial Times first carried the story but it was also picked up and confirmed by The Guardian.

 

In summary, the new fast track application process is said to apply to permanent residence applications, it is being tested with 20 hand picked corporate partners including Deloitte and PwC over the next fortnight and the test is to seek feedback and identify any problems in the system.

Whether the final version will be restricted to permanent residence applications by EU nationals is unknown

 

•The Section 3C leave. It should be noted that the 3C continuing leave only arises where a person’s leave expires before the HO make a decision on their application. It does not apply if the leave runs out after that decision has been made.

 

•New permanent residence card requirement for EEA citizens applying for naturalisation after 12 Nov 2015 – UK BA Freedom of Information Request (FOI) response: <noindex>https://www.whatdotheyknow.com/request/new_...idence_card_req</noindex> Under the EEA Regulations some EU citizens can backdate their Permanent Residence issue date, so they may not need to wait 12 months after obtaining their PR status

 

•The Upper Tribunal’s jurisdiction to decide an application for Judicial Review is not affected by the applicant’s being in Scotland. The Tribunal will, however, consider issues of forum non convenience if it is suggested that its jurisdiction should not be exercised.

 

 

 

 

[British Lawyer]

09 September 2016. UK and EEA Immigration Law updates from the Legal Centre. We can help you: <noindex>https://legalcentre.org/Initial-Consultation.html</noindex>

 

•Parent of a child at school visa can be extended in-country under para 276BU1: <noindex>https://www.gov.uk/parent-of-a-child-at-sch...xtend-your-visa</noindex> and <noindex>https://www.gov.uk/government/publications/...4-child-student</noindex>

 

•Transparency data: Country returns guide, UK Visas and Immigration, 22 August 2016:

<noindex>https://www.gov.uk/government/publications/...y-returns-guide</noindex>

 

•The case of AB (Article 1F(a) – defence - duress) Iran [2016] UKUT 00376 (IAC)

 

1. In response to an allegation that a person should be excluded under Article 1F(a) of the Refugee Convention because there are serious reasons for considering that the person has committed a crime against peace, a war crime or a crime against humanity as defined in the Rome Statute, there is an initial evidential burden on an appellant to raise a ground for excluding criminal responsibility such as duress.

2. The overall burden remains on the respondent to establish that there are serious reasons for considering that the appellant did not act under duress.

 

•Immigration Act 2016: Guidance on adults at risk in immigration detention: <noindex>https://www.gov.uk/government/uploads/syste...August_2016.pdf</noindex>

 

•Rough Sleeping and Home Office Removals, Homeless Link, 23 August 2016:

<noindex>http://www.homeless.org.uk/connect/blogs/2...office-removals</noindex>