Важные судебные решения и новости для иммигрантов

British Lawyer · 30 ноября, 2016

30 November 2016 - UK & EEA Immigration Law Updates from the Legal Centre

Legal Centre’s Services at a glance - Вкраце об услугах Legal Centre:

- Consultation with the top category Immigration Advocate: <noindex>https://legalcentre.org/Initial-Consultation.html</noindex> - Консультация с иммиграционным адвокатом всшей категории: <noindex>https://legalcentre.org/Konsultacija-s-Advokatom.html</noindex>

- Application verification service by the top category Immigration Advocate: <noindex>https://legalcentre.org/Immigration-Applica...on-Service.html</noindex> - Услуга проверки заявлений иммиграционным адвокатом высшей категории : <noindex>https://legalcentre.org/proverka-zayavleniy.html</noindex>

- General supervision (de-facto representation) by the top category Immigration Advocate : <noindex>https://legalcentre.org/Genera-supervision.html</noindex> - Общее сопровождение дела адовкатом высшей категории : <noindex>https://legalcentre.org/Obshee-soprovozdenie.html</noindex>

- Full representation : <noindex>https://legalcentre.org/</noindex> – Полное сопровождение: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

AND NOW… THE NEWS:

• New Guidance on language requirements for public sector workers (29 November 2016)

Part 7 of the Immigration Act 2016 came into force 21 November 2016 and placed a duty on public sector employers to ensure that their employees in public-facing roles in the UK have sufficient spoken English to perform their roles effectively. The Government issued an updated Code of Practice and Impact Assessment on 29 November 2016 having laid these in draft before parliament earlier in July 2016. The Government indicates that the Code will promptly be brought into force by Regulations under the Act.

- Guidance: English language requirement for public sector workers: code of practice: <noindex>https://www.gov.uk/government/publications/...ode-of-practice</noindex>

- Guidance: Immigration Act: part 7 - language requirements for public sector workers: <noindex>https://www.gov.uk/government/publications/...-sector-workers</noindex>

- Impact assessment: English language requirement for public sector workers: impact assessment: <noindex>https://www.gov.uk/government/publications/...pact-assessment</noindex>

• The First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No. 2) Order 2016: <noindex>http://www.legislation.gov.uk/uksi/2016/1149/article/2/made</noindex>

RECENT CASE-LAW (EEA):

• Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) [Articles 3 and 5], 22 November 2016

On 22 November 2016, the European Court of Human Rights (ECtHR) delivered its judgment in Abdullahi Elmi and Aweys Abubakar v. Malta (nos. 25794/13 and 28151/13) concerning the eight-month detention of two asylum-seeking children pending the outcome of their asylum procedure and, in particular, the age assessment procedure employed.

British Lawyer · 1 декабря, 2016

01 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

Further analysis (most interesting points) of the recent UK and EEA Immigration Rules/Regulations changes at the end of November 2016:

• Changes to periods within which applications for further leave to remain can be made by overstayers

The 28-day grace period for the consideration of applications for further leave to remain where a person has overstayed will be abolished for applications made on or after 24 November 2016. Instead, an out-of-time application will not be refused only where theperson applies within 14 days and has a good reason for applying out of time that was beyond their or their representative’s control.

There is a 14-day ‘grace period’ where an application for leave has been refused; 3C leave has expired; a time limit for appeal or administrative review has expired; or an appeal or administrative review has concluded. This is to allow for a new application to be made. Periods of overstaying prior to 24 November 2016 to be disregarded for the purpose of applications for indefinite leave to remain based on continuous lawful residence will be governed by the old 28-day grace period, but overstaying after that date must not exceed 14 days.

• Changes relating to applications and validity

The rules on making valid applications for leave to remain are redrafted. New paragraphs 34 to 34E (see paragraph 1.4 of HC667) set out the mandatory requirements for applications to be valid and some exceptions. There are also changes to the rules on how applications and administrative review applications may be submitted. Applications made before 24 November 2016 will be considered under the rules as at 23 November 2016.

There is a new definition of a valid application at paragraph 34 of the Immigration Rules: one that is made on the specified form, all mandatory parts of which have been duly completed with the fee and health surcharge paid (unless a fee waiver applies). Proof of identity (normally a valid passport) must be submitted with the application, along with two valid passport photographs. Parents or guardians must sign to consent to an application from an under-18. Biometric information must be provided and where attendance in person is required, there must be such attendance. These requirements also apply when a person wishes to vary an application they have already submitted.

The Secretary of State has discretion to treat an application as valid as long as the fee is paid, satisfactory evidence of identity provided and biometrics given (paragraph 34B). An application sent by Royal Mail is made on the date on which it is received by the Home Office (paragraph 34G); otherwise an application is made on the date on which it is received by the Home Office. These new definitions are essentially codifications and simplifications rather than radical changes to existing rules. They come into effect from 24 November 2016 for applications submitted on or after that date.

• Changes to Appendix FM / Appendix FM-SE

See above also on changes to 28-day grace period for overstayers submitting an application for leave to enter or remain.

A new English language requirement at level A2 of the Common European Framework of Reference for Languages is introduced for applicants for further leave in the UK as a partner or parent after completing 30 months in the UK on a five-year route to settlement under Appendix FM. The specified evidence requirements for meeting the English language requirements using an academic qualification are clarified also. These changes take effect from 1 May 2017. If, however, the expiry date of the applicant’s leave pre-dates 1 May 2017, the application will be decided in accordance with the Immigration Rules in force on 30 April 2017.

• Points Based System (PBS)

Evidence relating to English language requirements Appendix B is amended to provide that an applicant must provide official documentation produced by UK NARIC to confirm any assessment of their degree by UK NARIC.

• Tier 2 (General)

Changes are made to switching from Tier 4 to Tier 2 to permit this only where the applicant studied at a UK recognised body or body in receipt of public funding as a higher education institution and to also prevent an applicant relying on a qualification obtained via supplementary study. The effect of the former change is to remove the route for those sponsored by an overseas higher education institution to undertake a short- term study abroad programme in the United Kingdom. It will also apply to those dependants of Tier 4 students permitted to switch into Tier 2.

• Tier 1 (entrepreneur)

Changes to evidence requirements, including to provide that an accountant cannot sign off his/her own accounts or funding evidence and around job creation and evidence to demonstrate Pay As You Earn reporting to HM Revenue and Customs.

• PBS Family Members

Provision is made for family members, including of those in the UK under the Points-based system, who are studying to be required to have Academic Technology Approval Scheme certificates under Part 15 of the Rules.

• EEA Regulations

The Immigration (European Economic Area) Regulations 2016 (SI 2016/1052)

Into effect 25 November 2016 and 1 February 2017. These regulations replace the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) achieving a much needed consolidation. But SI 2016/1052 follows the usual Home Office mantra of ‘no consolidation without change’. Changes to the Surinder Singh (Case C-370/90 ) route, inspired by O & B v The Netherlands (Case C-456/12) come into effect on 25 November 2016. The good news is that the new regulations cover not only British citizens who were workers and self-employed in another member State but also British citizens who have studied or been self-sufficient in another member State. The rules require an assessment of whether residence in another member State was ‘genuine’, recalling the genuineness tests of the Points-Based system. But there is a new reason for refusing a Surinder Singh family member: that the purpose of residence was to circumvent immigration laws that would otherwise have applied to them.

Other changes come into effect on 1 February 2017. It appears that the prospect of Brexit has persuaded the Home Office that it can break EU law with impunity. There is a new power to require EEA applications to be made in a prescribed manner. There is a new ‘verification’ process for applications.

The abolition of the right of appeal for extended family members is confirmed. Just as the Immigration Act 2016 extends deport first; appeal later powers to turn them into remove first appeal later powers, so the power to force EEA nationals to leave before their appeal is heard is extended to cases where they have been told that they have no right of residence or that they have ‘misued’ EEA rights.

British Lawyer · 2 декабря, 2016

02 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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New immigration statistics

New UKVI guidance on 3C and 3D leave and Section 94B of the Nationality, Immigration and Asylum Act 2002 on deportation cases (01 December 2016)

The following is guidance following commencement of relevant provisions of IA 2016:

• Guidance: 3C and 3D leave

Guidance for how UK Visas and Immigration prevents an individual from becoming an overstayer while they are awaiting or appealing a decision: <noindex>https://www.gov.uk/government/publications/3c-and-3d-leave</noindex>

• Guidance: Section 94B of the Nationality, Immigration and Asylum Act 2002:

This guidance gives information on deportation cases considered for certification under Section 94B: <noindex>https://www.gov.uk/government/publications/...asylum-act-2002</noindex>

• UKVI Statutory guidance: Ending a residential tenancy agreement:

Guidance for the courts in England in considering the defence of taking steps to end a residential tenancy agreement: <noindex>https://www.gov.uk/government/publications/...nancy-agreement</noindex>

• UKVI Guidance: Studying under Tier 4 of the points-based system

Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4: <noindex>https://www.gov.uk/government/publications/...ts-based-system</noindex>

• New immigration statistics

Home Office Guidance: Policy and legislative changes affecting migration to the UK: timeline. Contains details of policy changes, together with information on changes to immigration legislation that affect immigration statistics: <noindex>https://www.gov.uk/government/publications/...the-uk-timeline</noindex>

• Guidance: Home Office immigration statistics: user guide

This user guide to Home Office immigration statistics is designed to be a useful reference guide with explanatory notes on the Home Office’s quarterly immigration statistics releases: <noindex>https://www.gov.uk/government/publications/...n-statistics--9</noindex>

**fregat222** · 3 декабря, 2016

Иммиграция в Британию достигла рекордного уровня

Число иммигрантов, въехавших на территорию Соединенного Королевства с июня 2015-го по июнь 2016 года составило 650 тысяч, говорится в отчете Бюро национальной статистики Британии. Этот годовой показатель стал рекордным, передает BBC.

Число граждан Евросоюза, переехавших в Британию, также побило рекорд – 284 тысячи.

Показатель нетто-миграции (числа въехавших в страну за вычетом выехавших) составил 335 тысяч, не сильно поднявшись в сравнении с показателем прошлого года.

Исследование в основном охватывает период, предшествовавший референдуму о выходе Британии из ЕС, и не отражает изменения динамики, которые возможно произошли после референдума.

Министр по иммиграции министерства иностранных дел Британии Роберт Гудвилл заявил, что правительство будет принимать меры, чтобы снизить количество въезжающих в страну людей.

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British Lawyer · 5 декабря, 2016

05 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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New UKVI guidance on illegal working (02 December 2016)

• Guidance: Illegal working closure notice and compliance orders: <noindex>https://www.gov.uk/government/publications/...mpliance-orders</noindex>

Guidance for frontline staff on illegal working closure notices and compliance orders

• Guidance: Licensing authority guide to right to work checks: <noindex>https://www.gov.uk/government/publications/...mpliance-orders</noindex>

• New UKVI guidance on immigration enforcement powers and operational procedure (01 December 2016): <noindex>https://www.gov.uk/government/publications/...ional-procedure</noindex>

Guidance added on 'Warrants: procurement and use'.

Guidance and information on administrative and criminal powers for officers dealing with immigration enforcement matters within the UK.

British Lawyer · 5 декабря, 2016

05 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

Part 2 Update

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• An employment tribunal held that an employee was fairly dismissed after failing to produce evidence of his right to work in the UK: <noindex>http://www.personneltoday.com/hr/fair-dism...-right-work-uk/</noindex>

• Remove first, appeal later” provisions in force from today: new guidance published. The power under the Immigration Act 2016 to certify any human rights appeal, not just deportation appeals, for “remove first, appeal later” treatment is now in force: <noindex>https://www.gov.uk/government/publications/...asylum-act-2002</noindex>

• Form FLR(O) has been abolished. The new FLR(HRO) and FLR(IR) forms are now in use

The controversial form FLR(O) is no more and has been withdrawn with effect from today, 1 December 2016. It has been replaced by two new forms:

FLR(HRO) broadly for applications outside the Immigration Rules based on human rights:

1. discretionary leave (DL) if you have previously been granted DL but have not previously been refused asylum, granted less than 4 years exceptional leave)

2. medical grounds or ill health

3. human rights claims (not to be used for claims on the grounds of family or private life, including on the basis of family dependencies between a parent and a child, or for protection (asylum) claims)

4. leave outside the rules under the policy concessions in the leave outside the rules guidance claims for leave outside the Immigration Rules because of compassionate and compelling circumstances

5. other claims not covered by another form

FLR(IR) broadly for applications made under the Immigration Rules not covered by another form:

1. visitors (except transit, Approved Destination Status and Permitted Paid Engagements visitors)

2. UK ancestry

3. domestic worker in a private household

4. domestic worker who is a victim of slavery or human trafficking

5. parent of a Tier 4 (child) student

6. dependant joiners who are applying separately from the main applicant – dependants of a person who has limited leave to enter or remain in the UK, not including dependants of a person with leave under the points based system or dependants of a person in the UK with leave on the basis of family or private life

7. relevant civilian employee

8. member of an Armed Force who is subject to immigration control (course F)

9. dependant of a member of Armed Forces which are not HM Forces (dependants of a member of HM Forces should complete FLR(AF))

10. locally engaged staff of a diplomatic mission

11. representative of an overseas business

12. retired person of independent means

13. any other application for leave to remain that is within the Immigration Rules but is not covered by another form

British Lawyer · 6 декабря, 2016

06 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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• According to the UK BA, the (employer’s sponsorship implied) Level 1 user must be located in the UK only

New guidance for taking the Life in the UK test (05 December 2016)

• Guidance: Terms and conditions for booking and taking the Life in the UK test

Changes to both terms and conditions and identity requirements: <noindex>https://www.gov.uk/government/publications/...-in-the-uk-test</noindex>

New UKVI guidance on the Life in the UK test & Points-Based System: Tier 1 (05 December 2016)

• Guidance: Terms and conditions for booking and taking the Life in the UK test

Changes to both terms and conditions and identity requirements: <noindex>https://www.gov.uk/government/publications/...-in-the-uk-test</noindex>

• Changes to Guidance: Points-based system: Tier 1 (Entrepreneur): <noindex>https://www.gov.uk/government/publications/...-1-entrepreneur</noindex>

This version has moved to the new template and reflects changes in line with the Immigration Rules changes of 24 November 2016. It replaces the Tier 1 (Entrepreneur) modernised guidance version 17.0 which has been withdrawn and archived.

New UKVI Guidance on Bail & Warrants (05 December 2016)

• Updated Guidance: <noindex>https://www.gov.uk/government/publications/...on-and-removals</noindex>

Changes indicated by UKVI:

Restructured 57.1.2 to minimise repetition; inserts at 57.3, 57.8 and 57.13; 57.7 restructured to include new subsection 57.7A; added Annex A; replacement or removal of outdated terms.

Further note:

-57.1.2 Bail in potential deportation cases: restructured and wording simplified.

-57.3 Advising persons of their bail rights: reminder added that a person can be considered for release on CIO or Secretary of State bail without first having to make an application; requirement to include in a bail application any recognizance agreed by the applicant amended to include the wording ‘if any’; the same change is made with reference to recognizances by sureties;

-57.8 Immigration Judge’s bail: changes to text on ending of bail and breach of bail;

-57.13 Surrendering to bail: more detail on granting further bail when a person appears before an immigration officer in surrender to bail granted by an immigration judge.

-57.7A and Annex A added on bail conditions, dealing with electronic monitoring and imposing curfews.

-[On curfews, see also Immigration Curfews: note for practitioners by Tom Hickman, Blackstone Chambers, 01 November 2016 at ILPA resource: <noindex>http://www.ilpa.org.uk/resource/32610/immi...kstone-chambers</noindex>]

Guidance removed: Chapter 34: warrants' guidance: <noindex>https://www.gov.uk/government/publications/...cement-activity</noindex>

British Lawyer · 9 декабря, 2016

09 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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Interesting UK VI statistics and current and upcoming innovations

• UKVI in-country operations update

- The Tier 4 summer ‘surge’ peaked in October, with straightforward cases being processed within 6 weeks.

- Postal applications for the summer peak received by mid October and UKVI are on course to clear by the end of November.

- The use of a new delivery partner had caused some very limited delivery issues.

- Tier 2 and 5 applications were averaging 6-7 weeks.

- Nationality applications were closer to 11 weeks processing, settlement routes at 18 weeks.

- Premium Service Centres (PSCs) offered faster processing.

- Tier 2 and 5 PSC appointments could be booked within 1 day at Belfast and Glasgow, with the Cardiff the longest at 8 days. PSC applications including dependents averaged 7 days for appointment. Long residency application appointments were shortest in Belfast at 7 days, longest in Solihull at 21 days.

- Appointments were currently Tier 2 only but the potential for expansion would be explored in 2017

- Sponsorship licence applications were taking 3 weeks on average. For licence changes Tier 4 renewals averaged 4 weeks, postal license changes were taking 4-6 weeks of an 18 week service standard.

• UKVI international operational update

- Just under 3 million applications (year ending June 2016), a 3% increase from the year before.

- Of these around 1.9 million were visitor applications and 204,000 were student applications.

- Significant growth in the key markets of India and China, in contrast to numbers dropping for those nationals travelling to the rest of Europe and the UK was top in Europe for visas issued this year.

- 5 new Premium Visa Application Centres (VACs) launched in the USA and 3 new VACs in China.

- In China, the joint UK and Belgian schengen visa service is expanding to all 15 VACs having now received sign off from the Chinese authorities.

- New meetings, incentives, conferences and events (MICE) service in India.

- Revised preferred partnership scheme in India for improved engagement with tour operators.

- Access UK rollout now complete on visit visas (covered in item 5).

- Priority visas now in place in over 200 locations.

- Electronic Visa Waivers now available for Kuwait, Qatar, Oman and UAE.

• New UKVI services: Access UK, the new online application service

- Access UK key objectives were to provide an online service replacing approximately 300 paper application forms and to replace Visa4UK, the previous online service.

- To provide a platform that is consistent with the Government Digital Service (GDS) and support Home Office transformation and was faster and more intuitive to use than Visa4Uk.

- The rollout was completed for 200 countries within 175 days, completing in August 2016.

- In-country applications were also being placed online, currently including Tiers 2 and 4, family and EEA routes.

- Access UK is streamlined from Visa4UK, with pages containing fewer questions allowing more targeted individual steps in the process.

- Additional language options on the online instructions (although the applications themselves must be in English).

- Mobile device compatible.

- Fortnightly system updates, improving responsiveness to any issues.

- The aim is for all immigration applications to be processed through Access UK by 2017.

• New UKVI services: Sponsorship IT rebuild

- A new sponsorship system was being designed to improve the current Sponsor Management System (SMS) with a strong customer facing focus

- The new system would be consistent with GDS standards and allow greater user feedback.

- The discovery phase had been completed and the product was currently in the alpha stage.

- The new system would have a strong user focus and the goal would be to move away from the need for the current 200 plus pages of guidance.

British Lawyer · 11 декабря, 2016

11 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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• Adult Dependent Relatives under the Appendix FM - full report about the current state of affairs from the UK BA: <noindex>https://www.legalcentre.org//files/Appendix...t-Relatives.pdf</noindex>

• Updated UKVI guidance on Tier 1 type Settlement applications: <noindex>https://www.gov.uk/government/publications/...d-system-tier-1</noindex>

• Updated UKVI guidance on Short-term students: <noindex>https://www.gov.uk/government/publications/...t-term-students</noindex>

• New UKVI guidance on restricted leave (07 December 2016): <noindex>https://www.gov.uk/government/publications/...ork-instruction</noindex>

• Commons Home Affairs Committee publishes correspondence with the Home Office regarding English-language testing (09 December 2016)

<noindex>http://www.parliament.uk/business/committe...correspondence/</noindex>

• Updated UKVI Guidance: Criminal casework: bail applications: action after a bail hearing or decision (09 December 2016): <noindex>https://www.gov.uk/government/publications/...ing-or-decision</noindex>

The following sections have been amended:

- Cases where immigration judge bail is granted

- Bail renewal or variation before an immigration judge – variations of bail restrictions

- Cases where CIO or Secretary of State bail is granted

- Renewal or variation of CIO or Secretary of State bail

- Ending bail

British Lawyer · 14 декабря, 2016

14 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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• Report recommends cut off date for new arrivals from EU

A hardline <noindex>report </noindex>chaired by prominent Leave campaigner Gisela Stewart into the status of EU nationals in the UK has recommended a cut off date for new arrivals from the EU, likely to be April 2017, and a massive registration programme for existing EU residents. EU citizens arriving after the cut off date would be subject to the full force of UK immigration law on Brexit, presumably meaning they would become unlawfully resident on that date.

The report, which has been co-ordinated by organisation British Future, assumes a total end to EU free movement law in the UK, “hard Brexit”, departure from the European Economic Area and Single Market and expulsion on non qualifying EU residents and family members. Essentially, it proposes a UKIP future for the United Kingdom.

The report recommends that the Home Office simplify the application process for permanent residence. Applications would be compulsory and would involve cross checking against multiple government databases rather than reliance on documents propduces by the applicant. The method proposed looks to me fundamentally incompatible with EU law, and involves imposition of a good character test and an application for ILR rather than permanent residence. How this could occur while the UK remains a member of the EU and EU citizens therefore continue to enjoy free movement rights is unclear, but it does not look very well thought through.

The report at least proposes a five year “transition” for EU nationals who were qualified persons or had permanent residence at the cut off date. This would allow those people to bring their family members to the UK under the equivalent of EU rules, which are far more family-friendly than the extremely harsh UK immigration rules. Entry of parents and grandparents is basically banned under UK rules but remains feasible under EU rules, and under EU rules there is no real minimum earnings requirement for sponsoring a foreign spouse, unlike the £18,600 requirement under UK rules.

Those with permanent residence would have their status converted to “bespoke” Indefinte Leave to Remain (ILR) under the UK immigration rules. What “bespoke” means or how it would differ from “normal” ILR and be distinguished from it when it is called the same thing is not explained.

The report is not an official or Government report but was co-ordinated by British Future. How likely the recommendations are to find their way into UK Government policy is questionable. This is particularly so as the report in effect abandons tens or hundreds of thousands of existing residents of the United Kingdom who are currently lawfully present in the UK because of EU free movement laws.

The report focuses on “qualified persons”, meaning those who are working, self employed, self sufficient with comprenehsive health insurance or students with comprehensive health insurance. It does not address long term residents from the EU who are not qualified persons (for example the non-working EU national spouse of a British citizen who does not have comprehensive health insurance) nor does it address third country family members from outside the EU but who have or had a relationship with an EU national in the UK.

The report itself states that only 64% of EU nationals resident for over 5 years have qualified for permanent residence. If it is assumed that there are 2.8 million EU nationals in the UK, that means over 1 million have not qualified. Many therefore probably never will. The report assumes these people will be expelled at the end of a five year transition period, in what would be the biggest mass expulsion of population from this country since 1290, when Edward I infamously ordered the Jews of England into exile.

Given that no-one in their right mind was proposing removing qualified persons, one wonders what the point of the exercise was. The report dodges the very hard questions faced by Ministers and civil servants.

• Thought in the Points Based System (PBS)

The Points Based System is notoriously complex and indecipherable. I have been working with the PBS categories and the pre-PBS categories, such as HSMP, Innovator and the like for a very long time. The first HSMP Rules were easy to understand, than it started to change. I believe this was simply incompetence on the part of Home Office officials unable to communicate in plain English and ill equipped to design to and then adapt to the constantly shifting requirements of Ministers.

Having observed multitude of unnecessary changes, judicial reviews, appeal and the like, my current view is that the complexity of the system is now deliberate; an opportunity has been grasped and the Points Based System is now used as an actual barrier to all immigration rather than as a gateway to the “right” migrants. It was even extended to family migration in the form of Appendix FM with accompanying Appendix FM-SE with accompanying policies and guidance.

There is in effect a financial filter; only those employers or migrants able to afford <noindex>top quality legal representation</noindex> can successfully navigate the labyrinth.

British Lawyer · 15 декабря, 2016

15 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

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Lords Select Committee on the European Union publishes their report on Brexit: acquired rights 10th Report of Session 2016-17 - published 14 December 2016 - HL Paper 82

SUMMARY OF CONCLUSIONS AND RECOMMENDATIONS

The rights of EU citizens and their families

1. The rights of an EU citizen to live and work in any EU Member State, and to gain a permanent right of residence in that State after five years, are some of the most fundamental in EU law. From them have derived all of the additional citizenship rights that are necessary for nationals of EU Member States, and their families, to conduct their lives in an EU Member State of their choosing on equal terms with the nationals of that State. (Paragraph 21)

2. That said, we received evidence suggesting that many EU nationals who have been in the UK for over five years may not be able to prove that they meet the criteria for permanent residence as an EU citizen. For example, those who are not economically active, including students, will have to show that they have had comprehensive sickness insurance cover for five years in the UK, notwithstanding that the National Health Service is freely available. We call on the Government to explain whether this consideration will influence the decision it makes on the cut-off point for deciding which EU nationals in the UK are given a permanent right to reside after Brexit. (Paragraph 22)

3. We also call on the Government to publish statistics on the number of EU nationals in the UK who have obtained proof of a permanent right to residence, and the number of applications that are pending. (Paragraph 23)

The loss of EU citizenship rights

4. In the absence of a negotiated settlement, the consequences of the loss of EU citizenship rights for EU nationals in the UK, and for UK nationals in other EU Member States, will be severe. (Paragraph 31)

5. EU nationals in the UK will be subject to national immigration rules, which restrict the rights of migrants far more than EU citizenship law, and which have been described as Byzantine in their complexity by the Court of Appeal. (Paragraph 32)

6. While UK nationals in EU Member States will also be subject to the national immigration law of their host State, they will enjoy additional protection as ‘third-country nationals’ under EU immigration law (except in Denmark and Ireland). The additional protection is, however, a considerable reduction on the migrant rights afforded to EU citizens. (Paragraph 33)

The concerns of EU nationals in the UK

7. It is clear, and unsurprising, that the uncertainty caused by the referendum has given rise to deep anxiety among EU nationals, including Polish, Romanian and French nationals, in the UK. The Government is under a moral obligation to provide certainty and legal clarity to all EU nationals working, living and studying in the UK, who contribute so significantly to the economic and cultural life of the UK. It should do so urgently. (Paragraph 47)

8. There is also a forceful economic case for the Government to act quickly. EU workers play an important role in filling gaps in the labour market that cannot otherwise be filled by UK workers. This is as true for highly skilled job markets, such as medical or financial services, as it is for lower skilled or seasonal job markets. The longer their future is uncertain, the less attractive a place to live and work the UK will be, and the greater labour market gaps will be. (Paragraph 48)

9. The referendum result has contributed to a rise in xenophobia towards EU nationals. We deplore this. Question marks about the rights of EU nationals to live in the UK may be fuelling xenophobic sentiment, as the Bulgarian Ambassador suggested. We call on the Government to explain what action it is taking to counter xenophobia towards EU nationals. (Paragraph 49)

The concerns of UK nationals living in other Member States

10. The anxiety of EU nationals in the UK is matched by that of UK nationals in other EU States—the evidence we received of their distress is compelling. Many are pessimistic that the life that they had planned in another EU Member State will still be possible. Residence rights, employment rights, access to health care and the capacity to finance retirements feature large among their concerns. Just as the Government is under an obligation to provide certainty to EU nationals resident in the UK, so it is under an equal moral obligation to seek to provide certainty and legal clarity to all UK nationals working, living and studying in other EU States. It should do so urgently. (Paragraph 54)

The protection of EU rights as acquired rights

11. It is evident that the term ‘parties’ in Article 70 (1)( of the Vienna Convention on the Law of Treaties refers to States, not to individuals or companies. In no sense, therefore, can this provision be said to safeguard individual rights under EU law that will be lost as a consequence of the UK’s withdrawal, in the absence of a negotiated settlement. (Paragraph 60)

12. The evidence we received makes very clear that the doctrine of acquired rights under public international law will provide little, if any, effective protection for former EU rights once the UK withdraws from the EU. The scope of acquired rights is limited to certain contractual and property rights which, even were they to coincide with EU rights, are highly unlikely to be enforceable. Reliance on the doctrine before the referendum as a means of protecting EU rights was therefore misplaced. (Paragraph 71)

13. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 72)

The protection of EU rights under alternative sources of law

14. In the absence of a negotiated settlement on which EU rights will be maintained, the ECHR offers a more likely route for successful litigation post-Brexit than the international law doctrine of acquired rights. A greater number of EU rights will overlap with ECHR rights, and the ECHR has an effective national enforcement mechanism in the Human Rights Act 1998. (Paragraph 88)

15. The two most relevant ECHR rights are the right to family and private life under Article 8 and the right of peaceful enjoyment of possessions under Article 1 of the First Protocol. Article 8 is likely to be invoked in cases of deportations of EU nationals post-Brexit (should such a policy ever be implemented), to seek to prevent the deportation taking place. Article 1 of the First Protocol will be invoked to protect EU rights to tangible and intangible property that overlap with the scope of “possessions” under that Article. (Paragraph 89)

16. We are not confident that the right to private and family life under Article 8 of the ECHR would prevent the status of EU citizenship from being removed as a consequence of Brexit. The ECHR case law on the protection of citizenship to which we were referred relates to national citizenship. It is arguable whether EU citizenship can be conflated with national citizenship for this purpose: Article 20 of the Treaty on the Functioning of the EU makes clear that EU citizenship “shall be additional to and not replace national citizenship”. (Paragraph 90)

17. There is a risk that the loss of EU citizenship could lead to unlawful discrimination between UK nationals, EU nationals and third-country nationals in the UK post-Brexit, where an ECHR right is engaged, as it could for other UK nationals in other EU Member States. We expect this risk of unlawful discrimination to lead to a high volume of litigation, unless it is addressed in the withdrawal agreement. (Paragraph 91)

18. The overlap between EU and ECHR rights should, however, be kept in context: the full range of EU rights is not covered by the ECHR. In cases where there is no overlap the ECHR will not provide any protection. This appears to be the case for many of the EU rights about which UK nationals living in other Member States are worried, such as the right to work, to study, to retire, to access affordable healthcare and other public services, and to equal treatment. (Paragraph 92)

19. We question whether the UK’s bilateral investment treaties (BITs) will provide effective alternative protection for many EU rights which have been lost as a consequence of the EU’s withdrawal from the EU. We do so for two reasons. First, the scope of BITs is limited to commercial investor rights, with the consequence that the overlap with individual EU rights is unlikely to be wide. Secondly, where there is an overlap with EU rights, EU law would appear to take precedence over a BIT. (Paragraph 98)

20. Litigation is always possible, however, where valuable rights have been lost. There is, therefore, a strong incentive for the Government to address the underlying causes of such potential litigation in the withdrawal agreement. (Paragraph 99)

Contents of the withdrawal agreement

21. We strongly agree with the unanimous view of our witnesses that the withdrawal agreement concluded under Article 50 should set out the EU rights that are to be maintained post-Brexit. This approach will give rise to the greatest legal certainty for EU nationals in the UK, and UK nationals in other EU States. This should be the most important consideration. (Paragraph 104)

22. In the event that the UK exits the EU without a withdrawal agreement,the most effective safeguard for maintaining the citizenship rights of EU nationals in the UK will be national law. It is, therefore, vital that the Great Repeal Bill that the Government plans to introduce in 2017 ensures that the Immigration (European Economic Area) Regulations 2006, which implement the EU Citizens Directive, will remain in force unchanged on the UK’s withdrawal from the EU, with or without a withdrawal agreement. To do so will provide legal certainty to EU nationals in the UK. As importantly, it would mean that other EU Member States are more likely to ensure similarly full protection for UK nationals in their States, who will have lost their status as EU citizens, in the event that a withdrawal agreement is not agreed. (Paragraph 105)

23. The nature of the forthcoming negotiations is such that absolute reciprocity in all matters cannot be guaranteed. Nevertheless, we believe that absolute reciprocity should apply and be guaranteed in respect of citizenship rights. (Paragraph 108)

24. Ultimately, it will be for the Government and its EU partners to determine which EU rights they wish to safeguard in the withdrawal agreement. (Paragraph 120)

25. In our view EU citizenship rights are indivisible. Taken as a whole they make it possible for an EU citizen to live, work, study and have a family in another EU Member State. Remove one, and the operation of others is affected. It is our strong recommendation, therefore, that the full scope of EU citizenship rights be fully safeguarded in the withdrawal agreement. (Paragraph 121)

26. It is clear to us that, in terms of numbers and of complexity, it would be impractical to require EU nationals resident in the UK to apply for indefinite leave to remain under the UK’s Immigration Rules. We draw the Government’s attention to the recommendation of one of our witnesses that a new status of permanent residence should be given to EU nationals in the UK post-Brexit. It would also be open to the Government to grant them the existing status of indefinite leave to remain, while waiving both the usual charges and the requirement to comply with any eligibility criteria other than that they were EU citizens resident in the UK. This would avoid establishing discriminatory status and categories of rights between EU Citizens and other non-UK nationals permanently resident in in the UK post-Brexit. Whichever approach the Government chooses, we recommend that the criteria it applies for permanent residence for EU nationals post-Brexit should be reasonable, flexible, and cost-effective. (Paragraph 122)

Enforcement of the withdrawal agreement

27. We recommend that the rights which are safeguarded in the withdrawal agreement should be frozen as at the date of Brexit; we cannot see any other approach that would provide for legal certainty. (Paragraph 136)

28. The majority of the safeguarded rights are likely to be reciprocal with EU rights, which means that they will have to be applied so far as possible uniformly. EU law will evolve over time, and national legislation and its interpretation by the courts will have to evolve accordingly. We recommend that a reciprocal mechanism be established to ensure that UK law can take account of relevant developments in EU law, and, importantly, that EU law can take account of relevant developments in UK law. (Paragraph 137)

29. The experience of the EEA States and Switzerland in this regard will be instructive. The 2006 extradition agreement between the EU, Norway and Iceland on extradition procedures, for example, may be a helpful precedent. The fact that the duty to keep under review the case law of the respective parties is reciprocal is particularly important: Norway and Iceland have to take account of developments in the case law of the CJEU, but so too the EU has to take account of developments in the case law of the courts of Iceland and Norway. (Paragraph 138)

The case for a unilateral guarantee or early negotiation

30. We urge the Government to change its stance and to give a unilateral guarantee now that it will safeguard the EU citizenship rights of all EU nationals in the UK when the UK withdraws from the EU. The overwhelming weight of the evidence we received points to this as morally the right thing to do. It would also have the advantage of striking a positive note for the start of the negotiations, which will be much needed. (Paragraph 147)

31. Even if the Government refuses to give a unilateral undertaking ahead of the negotiations, there is a strong case to be made for agreeing EU citizenship rights as a preliminary and separate element of the negotiations as soon as Article 50 is triggered. EU nationals in the UK and UK nationals in other EU Member States should not have to wait until the end of the negotiations to find out whether they have a future in the EU States where they have decided to live.

<noindex>http://www.publications.parliament.uk/pa/l...com/82/8202.htm</noindex>

Lords Debate on Brexit: European Union Citizenship (13 December 2016)

Asked by Lord Roberts of Llandudno: To ask Her Majesty’s

Government whether they are planning to protect the European Union citizenship status of United Kingdom citizens who were born after the United Kingdom joined the European Union on 1 January 1973.

<noindex>https://hansard.parliament.uk/lords/2016-12...nionCitizenship</noindex>

British Lawyer · 16 декабря, 2016

16 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

We can help you now: <noindex>https://legalcentre.org/</noindex>

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• New UKVI Guidance on application for UK visa as Tier 1 Investor (15 December 2016): <noindex>https://www.gov.uk/government/publications/...tier-1-investor</noindex>

• UKVI Policy paper on Home Office response to the Independent Chief Inspector's report 'An inspection of the implementation of the Immigration Act 2014 provisions for tackling sham marriage August to September 2016' (15 December 2016): <noindex>https://www.gov.uk/government/publications/...age-august-to-s</noindex>

The Independent Chief inspector of Borders and Immigration has published an inspection report on the implementation of the 2014 ‘hostile environment’ provisions for tackling sham marriage.

With effect from 2 March 2015, the Immigration Act 2014 extended the period of notice for couples intending to marry in order to give the Home Office time to investigate the genuineness of the relationship of those it suspected may be sham.

Couples who fail to comply with a Home Office investigation are not permitted to marry. Compliant couples who are assessed as sham may marry, but the Home Office will seek to refuse any future application to remain in the UK based on that marriage.

The inspection found that the initial implementation of the new provisions was problematic, indicating a lack of proper planning:

• the Home Office did not communicate effectively with registrars about its new way of operating, where it no longer attended register offices and prevented ceremonies from proceeding

• new processes were cumbersome and weakened by their reliance on fragmented IT and by the limited operational support received from local enforcement teams, with the result that cases were not being determined within the extended time limit.

From January 2016, the Home Office piloted a revised process aimed at overcoming these problems, which it rolled out nationally from June. This late change meant that the inspection was unable to test fully the efficiency and effectiveness of the new provisions and the ICIBI will re-inspect this area when more evidence of how they are working is available.

This is the third of the Home Office’s ‘hostile environment’ provisions that the ICIBI has inspected in 2016. As with the provisions in relation to UK driving licences and bank and building society current accounts, the ICIBI found that the Home Office was not doing enough to measure either its own performance or the impact of the sham marriage provisions on voluntary returns, enforced removals and on the ‘pull factor’ for individuals considering settling illegally in the UK. Without this, any meaningful evaluation of the ‘hostile environment’ strategy will prove extremely difficult.

Mr Bolt made five recommendations for improvement to the Home Office.

• Commons Library Research Briefing: Brexit and data protection (15 December 2016): <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7838</noindex>

• Updated Guidance from UKVI: Immigration Act: part 1 - labour market and illegal working (13 December 2016): <noindex>https://www.gov.uk/government/publications/...illegal-working</noindex>

Updated: New impact assessment on tackling exploitation in the labour market.

• Updated UKVI guidance on 'Non-compliance and absconder process' (15 December 2016): <noindex>https://www.gov.uk/government/publications/...nder-management</noindex>

• Supreme Court Cases R (on the application of Mirza) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0209 and R (on the application of Iqbal) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0210 and R (on the application of Ehsan) (Appellant) v Secretary of State for the Home Department (Respondent) – UKSC 2015/0211 (14 December 2016)

Section 3C of the Immigration Act 1971 extends a person’s leave to remain pending Determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. All three appeals before the Court raise the issue of how section 3C applies where an application is made in time, but for some reason is procedurally defective. Sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, sections 5 and 7 of the UK Borders Act 2007 provide the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these.

Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired.

Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non-payment of the fee when the Secretary of State was unable to take the £295 application fee from his bank.

In Ms Ehsan’s case she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed.

All three appellants applied for judicial review of the Secretary of State’s decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules.

JUDGMENT

The Supreme Court unanimously dismisses the appeals. . Lord Carnwath gives the judgment, with which the other Justices agree.

Judgment: <noindex>https://www.supremecourt.uk/cases/docs/uksc...09-judgment.pdf</noindex>

Press summary: <noindex>https://www.supremecourt.uk/cases/docs/uksc...ess-summary.pdf</noindex>

• Case law: Special Immigration Appeals Commission and High Court Decisions (14 December 2016)

Case law: England and Wales High Court (Administrative Court) Decision case MS v Secretary of State for the Home Department [2016] EWHC 3162 (Admin) (09 December 2016)

<noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2016/3162.html</noindex>

Case law: Special Immigration Appeals Commission case: B v Secretary Of State For The Home Department [2016] UKSIAC SC_09_2005_2 (12 December 2016)

<noindex>http://www.bailii.org/uk/cases/SIAC/2016/SC_09_2005_2.html</noindex>

• Lords Select Secondary Legislation Scrutiny Committee 18th Report published on First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No.2) Order 2016 (SI 2016/1149) (15 December 2016)

<noindex>http://www.publications.parliament.uk/pa/l...leg/84/8402.htm</noindex>

First-tier Tribunal (Immigration and Asylum Chamber) Fees (Amendment) (No.2) Order 2016 (SI 2016/1149)

These Regulations annul the approximately six-fold increase in the fees for an application to the Immigration and Asylum Chamber of the First-tier Tribunal, made by SI 2016/928 in September. Our 9th Report drew attention to the original Order because of the timing and the degree of opposition expressed. This Order returns application fees to the previous levels with immediate effect stating “in view of all the representations received on the fee levels the Government has decided to take stock and reconsider these specific increases to make sure that the interests of all tribunal users and the taxpayer are being balanced properly”.

• Code of Practice (English Language Requirements for Public Sector Workers) Regulations 2016 (SI 2016/1157)

Section 77 of the Immigration Act 2016 (“the 2016 Act”) provides that public authorities must ensure that anyone who works for them in a public-facing role speaks sufficiently fluent English (or Welsh where appropriate) to do their job effectively. Section 80 of the 2016 Act provides that in determining how to comply with this duty public authorities must have regard to a Code of Practice which this instrument brings into force. The Code includes provision about:

the standard of spoken English required to be met by a person working for a public authority ( or under contract to them);

- ensuring that the requirements are proportionate to the role performed;

- the action available to such a public authority where such a person does not meet that standard, including remedial action;

- the procedure to be operated by a public authority to enable complaints to be made about breaches of the duty; and

- how the public authority is to comply with its other legal obligations as well as the duty.

British Lawyer · 19 декабря, 2016

19 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

• Nine people have been convicted of running an immigration fraud linked to English tests for foreign students: <noindex>http://www.bbc.co.uk/news/uk-38225712</noindex>

2 Lords European Union Committee Reports: Brexit & financial services AND future UK–EU security & police cooperation (16 December 2016)

Lords Select European Union Committee Report - Brexit: financial services - 9th Report of Session 2016-17 - published 15 December 2016 - HL Paper 81

<noindex>http://www.publications.parliament.uk/pa/l...com/81/8102.htm</noindex>

Lords Select European Union Committee Report - Brexit: future UK–EU security and police cooperation. 7th Report of Session 2016-17 - published 16 December 2016 - HL Paper 77

<noindex>http://www.publications.parliament.uk/pa/l...com/77/7702.htm</noindex>

• Lords European Union Committee Report: Brexit & financial services (16 December 2016)

Lords Select European Union Committee Report - Brexit: financial services - 9th Report of Session 2016-17 - published 15 December 2016 - HL Paper 81

<noindex>http://www.publications.parliament.uk/pa/l...com/81/8102.htm</noindex>

• Joint Committee on Human Rights 5th report on the human rights implications of Brexit (19 December 2016)

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

• The Home Office on Delay to work start date - Tier 2 ICT Migrants

According to the UK BA, the paragraph 23.9 does not apply to Tier 2

ICT migrants, that is, the “The start date given on the CoS must be the date that the migrant will start working for you. It is possible to put this start date back by a sponsor note via your SMS account, but the start date cannot be put back by more than 4 weeks. If the migrant is unpaid for more than 4 weeks from the original start date you cannot continue to sponsor them.”

• According to the UK BA, an employer who accepts ILR in an expired passport would not have a statutory excuse if an employee is found to be working unlawfully

• Colleagues are reporting reported delays in FLR (FP) applications, including waiting 16 weeks to receive a biometric invitation letter

• In one colleague migrant’s case, the Home Office, which had previously registered the child as British on the basis of the father’s British citizenship, is now asking for a DNA test. The parents never married and the father is now estranged. A colleague noted that the High Court had previously held that where the Home Office had issued a passport, the Home Office cannot go back on its decision on the basis of speculation. There must be cogent reasons

British Lawyer · 22 декабря, 2016

22 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

• UK VA Visa and Operation Guidance – all in one place: <noindex>https://www.gov.uk/topic/immigration-operat...rnised-guidance</noindex>

• Updated UKVI Guidance on 'Search and seizure' (19 December 2016): <noindex>https://www.gov.uk/government/publications/...ional-procedure</noindex>

New guidance sections concerning:

• preserving crime scene

• recording and referring evidence

• non-statutory handling of property and baggage

British Lawyer · 23 декабря, 2016

23 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

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Recent case-law

• Depesme and Kerrou (Judgment) [2016] EUECJ C-401/15 (15 December 2016)

BAILII link: <noindex>http://www.bailii.org/eu/cases/EUECJ/2016/C40115.html</noindex>

Ruling (para 65):

Article 45 TFEU and Article 7(2) of Regulation (EU) No 492/2011 of the European Parliament and of the Council of 5 April 2011 on freedom of movement for workers within the Union must be interpreted as meaning that a child of a frontier worker, who is able to benefit indirectly from the social advantages referred to in the latter provision, such as study finance granted by a Member State to the children of workers pursuing or who have pursued an activity in that Member State, means not only a child who has a child-parent relationship with that worker, but also a child of the spouse or registered partner of that worker, where that worker supports that child. The latter requirement is the result of a factual situation, which it is for the national authorities and, if appropriate, the national courts, to assess, and it is not necessary for them to determine the reasons for that contribution or make a precise estimation of its amount.

So, the Court of Justice considered whether the step child of a frontier worker could benefit from the social and tax advantages enjoyed by workers under EU law, in this case to access student financial assistance in the same way as family members of an EEA national working in exercise of Treaty rights in Luxembourg.

The Court held that the step children of frontier workers could benefit where the worker supports the child, finding that:

-the child of a migrant worker must be interpreted as including the children of their spouse or their recognised partner;

-there is no distinction between family members recognised for workers and those recognised for frontier workers;

-determining if a worker supports the child involves a factual assessment by the national authorities, it may be evidenced by objective factors such as shared household and it is not necessary to determine to consider whether the child could support themselves, the reasons for providing support to the child, or to make a precise estimation of its amount. The

Court also noted that children are presumed to be dependent until the age of 21 years.

• JA (child – risk of persecution) Nigeria [2016] UKUT 00560 (IAC)

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/u...c/2016-ukut-560</noindex>

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk

• Revised Detention Services Order (DSO) 05/2014: Removal of Electronic Tags

Home Office link: <noindex>https://www.gov.uk/government/uploads/syste...ronic_Tags_.pdf</noindex>

The Home Office has published a revised detention services order on the removal of electronic tags, which includes an update on the internal processes to be followed.

> R (on the application of Said Aitjilal) v Secretary of State for the Home Department ((EEA Regulations – deportation - reassessment -regulation 24(5)) [2016] UKUT 00563 (IAC)

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/u...c/2016-ukut-563</noindex>

Neither a decision to make a deportation order nor a notice of intention to make a deportation order triggers the two year period specified in regulation 24(5)* of the EEA Regulations. The two year period begins upon the making of the deportation order itself.

* Regulation 24(5): “Where such a deportation order is made against a person but he is not removed under the order during the two year period beginning on the date on which the order is made, the Secretary of State shall only take action to remove the person under the order after the end of that period if, having assessed whether there has been any material change in circumstances since the deportation order was made, he considers that the removal continues to be justified on the grounds of public policy, public security or public health.”.

• R (on the application of ZM and SK) v The London Borough of Croydon (Dental age assessment) [2016] UKUT 00559 (IAC); resource UPDATED

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/u...c/2016-ukut-559</noindex>

The decision in this case has now been published by the Tribunals Service with the above citation and following head note.

Head note

1. Considerable circumspection must always be deployed in responding to a claim that statistical evidence tends to prove a fact about an individual. Statistics may be more useful to decision-makers at the far ends of the scale (where they may be able to show the plausibility or implausibility of a proposition) than in the middle of the scale where they purport to show the likelihood of the correctness of a plausible proposition.

2. When considering statistical evidence it is always necessary to determine whether the population constituting the database from which the statistics are drawn is sufficiently identical to the population from which the individual is drawn.

3. The fact that all teeth are mature in the sense that all have reached Demirjian stage H is a sign of chronological maturity but is not a reliable indicator of whether an individual is more or less than 18 years old. The use of the Demirjian stages below stage H does appear to be more reliable in the prediction of age, particularly in the lower teens.

4. None of the three mandibular maturity markers so far identified appears yet to have attained such acceptance in the scientific community that it can be accepted as a reliable pointer to chronological age in the late teens in males.

5. Dental wear is not a guide to chronological age in the absence of data for a population with similar diet and masticatory habits to those of the person under examination.

6. The decision of the Court of Appeal in London Borough of Croydon v Y should not be read as prohibiting a person from refusing to undergo a dental examination. However, (i) the risk inherent in the exposure to x-rays during the taking of the dental panoramic tomograph is not likely to be a reasonable ground for refusing to allow the tomograph to be made, given the advantages stemming from ascertainment of an individual’s true age, and (ii) despite the reservations expressed herein, analysis of a person’s dental maturity may well have something to add to the process of assessing chronological age.

7. It therefore follows that generally speaking the taking of a dental tomograph should be ordered if a party seeks it, and (because of the process of dental maturity) the earlier the tomograph is taken, the more likely it is to be of assistance.

British Lawyer · 28 декабря, 2016

28 December 2016 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

• The UK guidance “Entering the UK as the holder of an Article 10 residence card” explicitly acknowledges that a permanent residence card will be valid for entry to the UK without the need for a visa:

“If you are a non-EEA national who holds a valid genuine residence card, issued to you as the family member of an EEA national who is exercising free movement rights in another EEA State (i.e. not your EEA relative’s Member State of nationality) under Article 10 of Directive 2004/38/EC (the ‘Free Movement Directive’), you may use this document for travel to the UK if you are accompanying your EEA national relative here, or joining your EEA national relative in the UK.

Another document, “Permanent Residence Card of a Family Member of a Union Citizen” issued under Article 20 of the Directive is also acceptable.”:

<noindex>https://www.gov.uk/government/publications/...-residence-card</noindex>

• UK: An Overview – Migration Observatory Review Key Points: <noindex>http://www.migrationobservatory.ox.ac.uk/r...on-uk-overview/</noindex>

The University of Oxford based Migration Observatory has published a new and quite interesting report on young migrants. The key points are:

• Migrants tend to be young when they arrive, typically as young adults coming for work or study, or as children accompanying their parents.

• Most young people whose first or main language is not English also speak good English. They tend to have lower educational achievement when they start school, but they make faster progress and so the gap is largely eliminated by age 16.

• Young migrants are more likely to have degree-level qualifications than the UK born.

• Employment outcomes for young migrants vary depending on their country of origin, gender, and age at arrival in the UK. EEA migrants have high employment rates but are overrepresented in low-skilled work; non-EEA migrants are overrepresented in high-skilled jobs but have lower employment rates.

• International students who remain in the UK after their studies have more favourable labour market outcomes than the average across the foreign-born population.

• It is too early to predict the impact of Brexit on the numbers and outcomes of young migrants living in the UK, although several future scenarios involve a shift in the balance of future migration towards people from non-EU countries.

Poland, India, Pakistan, Germany and Romania make up 5 of the top 6 countries of origin for both under 30’s and the foreign-born population as a whole. The table on reasons for coming to the UK is divided by EEA/non-EEA and shows that proportionately more EEA migrants come for economic reasons and more non-EEA migrants come for study and as family or dependants.

On Brexit, the report reiterates that if the UK Government requires EEA migrants in the UK to prove they are qualified persons, significant numbers of them will be excluded. The report points out that students (generally young people) are one of the groups in potential danger:

People who are most likely to face difficulties meeting a permanent-residence-style requirement include the self-employed, who may find it difficult to produce the necessary paperwork; very low earners, whose work in the UK may not be deemed sufficient for them to qualify as ‘workers’ under EU rules; and students or ‘self-sufficient’ people, who are expected to have comprehensive sickness insurance in the UK but who may not have been aware of this requirement.

• Albino child from Nigeria wins asylum claim: <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2016/560.html</noindex>

A child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk.

• Upper Tribunal approach to proxy marriages conceded to be wrong by Home Office: <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2016/1303.html</noindex>

In an interesting development on the validity of proxy marriages, the Home Office has taken the view in a Court of Appeal case that the Upper Tribunal’s approach in Kareem [2014] UKUT 24 is wrong in law. The Court of Appeal has declined to simply overrule Kareem on this basis, though, and is asking the Attorney General to appoint an advocate to the court.

The general rule of private international law is that a marriage which was lawful in the country in which it occurred will be recognised in other countries. Kareem goes behind this rule in holding that a marriage contracted in country A will only be recognised in the UK if it is also recognised in intermediary country B.

If Kareem does prove to be wrong there will be a lot of people denied their free movement rights and put to considerable litigation expense by the approach of the Upper Tribunal.

• Immigration Minister sets out Home Office approach to ETS language testing cases: <noindex>http://data.parliament.uk/writtenevidence/...tten/44492.html</noindex>

Interesting letter from the Immigration Minister to the Home Affairs Select Committee setting out the Home Office approach to and strategy on the ETS litigation.

British Lawyer · 4 января, 2017

03 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

• Calculating the deadline to submit a Judicial Review. The UK BA’s relevant policy suggest that :

“The team handling the JR must calculate the 3 month time limit for applying for JR from the date on which the applicant was served with the administrative review decision, not the date of the original decision on the application. Administrative review decisions are served in accordance with appendix SN of the Immigration Rules”.

Major UK immigration related case-law, summer-autumn-winter 2016

Two new deportation cases from the Supreme Court: best interests plus the Immigration Rules and Article 8

• Makhlouf v Secretary of State for the Home Department (Northern Ireland) [2016] UKSC 59, [2016] All ER (D) 93 (Nov) (16 November 2016)

In this deportation appeal, the Appellant had two British children with whom he had not had direct contact for a significant length of time. The Supreme Court unanimously dismissed his appeal finding that the children had no relationship with the Appellant. At paragraph 40 Lord Kerr said that where a decision is taken about the deportation of a foreign criminal who has children residing in the UK, separate consideration of their best interests is required, especially if they do not converge with those of the parent to be deported and particularly in the case of a child with dual ethnic background. At paragraph 47 Lady Hale added, ‘it is quite correct to say that children must be recognised as rights-holders in their own right and not just as adjuncts to other people’s rights. But that does not mean that their rights are inevitably a passport to another person’s rights.’

• Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] All ER (D) 90 (Nov) (16 November 2016)

The Appellant was a failed Iraqi asylum seeker with Class A drug convictions. He was in a long-term relationship with his British fiancée and had two children with whom he had no contact. The Supreme Court dismissed the Appellant’s appeal against the Court of Appeal’s decision to remit the appeal to the Upper Tribunal, however Lord Kerr dissented. The judgments analyse the interaction between the deportation rules and the appellate body considering Article 8 of the European Convention on Human Rights. Appellate decision making in Article 8 cases is governed by Huang [2007] UKHL 11, [2007] 4 All ER 15 and the structured approach. The European Court of Human Rights has given guidance on the relevant factors to take into account (Boultif v Switzerland [2001] ECHR 54273/00, Maslov v Austria [2008] ECHR 1638/03, Jeunesse v Netherlands [2014] ECHR 12738/10). he appellate body’s decision making process is not governed by the Immigration Rules, but should nevertheless involve their consideration. The appellate body must make its own assessment of the proportionality of deportation, on the basis of its own consideration of the factors relevant to the particular case, and application of the relevant law. But in doing so, it must not disregard the decision under appeal. Where the Secretary of State for the Home Department (SSHD) has adopted a policy in relation to the assessment of proportionality, set out in the Rules and endorsed by Parliament, the appellate body should give considerable weight to that policy. Lord Wilson endorsed the balance sheet approach to decision making. Dissenting Lord Kerr concluded that the application of the Rules, and their prescription of the weight to be given to the public interest in the deportation of foreign criminals, were not compatible with the balancing exercise that had to be undertaken in considering the relevant factors arising under Article 8 in a particular case

Appeals

• Sheidu (Further submissions; appealable decision) [2016] UKUT 412 (IAC) (7 September 2016)

A Vice-Presidential panel of the Upper Tribunal (Immigration and Asylum Chamber) (UT) found that if the SSHD makes a decision that is one of those specified in Nationality, Immigration and Asylum Act 2002, s 82(1), it carries a right of appeal even if the intention was not to treat the submissions as a fresh claim. Whilst it is not the job of the First-tier Tribunal (FTT) to determine if further submissions amount to a fresh claim (R (Waqar) v Secretary of State for the Home Department IJR [2015] KUT 169 (IAC), [2015] All ER (D) 78 (Apr) (permission to appeal to Court of Appeal refused by Beatson LJ on 17 November 2015), R (Robinson) v Secretary of State for the Home Department IJR [2016] UKUT 133 (IAC), R (MG) v First-tier Tribunal (Immigration and Asylum Chamber) [2016] IJR UKUT 283 (IAC), [2016] All ER (D) 108 (Jun) and R (Amin Sharif Hussein) v First-tier Tribunal and Secretary of State for the Home Department [2016] UKUT 409 (IAC)) it is the job of the FTT to determine if a decision is one which falls within NIAA 2002, s 82. The UT found that the decision

in the present case was a refusal of a human rights claim and therefore carried a right of appeal.

• Sala (EFMs: Right of Appeal) [2016] UKUT 411 (IAC) (19 August 2016)

Dropping a jurisprudential bomb shell, a Vice-Presidential panel of the UT found that there is no statutory right of appeal against the decision of the SSHD not to grant a Residence Card to a person claiming to be an Extended Family Member as it did not concern a person’s entitlement to be issued with a Residence Card. The SSHD argued in this appeal that there was a right of appeal, however, following the appeal she has incorporated the decision in Sala in the new Immigration (European Economic Area) Regulations 2016 SI 2016/1052.

ETS: the latest developments

The SSHD is now relying on more evidence, both general and specific in ETS/TOEIC cases. This was demonstrated in the latest reported ETS decision

• MA (ETS – TOEIC testing) [2016] UKUT 450 (IAC) (16 September 2016) in which the President allowed the SSHD’s appeal finding that the Appellant’s claims were

demonstrably false. The question of whether a person engaged in fraud in procuring a TOEIC English language proficiency qualification will invariably be intrinsically fact sensitive. The SSHD then decided to withdraw her appeal before the Court of Appeal in Qadir v Secretary of State for the Home Department [2016] EWCA Civ 1167, [2016] All ER (D) 147 (Nov) (25 October 2016) . Beatson LJ gave a judgment which sets out at paragraphs 29-35 how the different categories of cases in the appeal system will be dealt with.

• Immigration, Asylum and Nationality Act 2002, s 117B(6) & reasonableness R (on the application of MA (Pakistan)) and others v Upper Tribunal (Immigration and Asylum Chamber) and others [2016] EWCA Civ 705, [2016] All ER (D) 52 (Jul) (07 July 2016)

Elias LJ confirms that section 117B(6) is a self-contained provision which, if satisfied, would result in Article 8 being infringed. In the assessment of reasonableness, Elias LJ favoured the argument of the appellants—that the focus was solely upon the child. However following MM (Uganda) v Secretary of State for the Home Department [2016] EWCA Civ 450, Elias LJ held that reasonableness included a consideration of the parents and their immigration history. This case concerned ‘7-year’ children and not British children. The SSHD still accepts (in extant policy documents) that it would be unreasonable for British children to leave the EU.

Sponsor licence cases

• R (on the application of Raj and Knoll Ltd) v Secretary of State for the Home Department [2016] EWCA Civ 770, [2016] All ER (D) 90 (Jul), (19 July 2016)

The Court of Appeal comprehensively rejects this appeal in a judicial review hallenge to the revocation of a Tier 2 sponsor licence concerning nursing homes. The Court finds that it is not necessary to decide if the SSHD can operate a ‘light trigger’ approach to revocation and whether the Court should adopt a heightened standard of review as the SSHD did not act on suspicion alone and the Appellant was clearly in breach. The Court however do sound two notes of caution at paragraph 31, with reference to R (Westech College) v Secretary of State for the Home Department [2011] EWHC 1484 (Admin), [2011] All ER (D) 69 (Jun), stressing that the SSHD must comply with her public law duties and that Tier 2 is not identical with Tier 4. Counsel for the SSHD submitted that there may be reasons in a Tier 4 case why the SSHD can act on suspicion alone

Steps to avoid persecution

• Secretary of State for the Home Department v MSM (Somalia) [2016] EWCA Civ 715, [2016] All ER (D) 74 (Jul) (12 July 2016)

The Court of Appeal dismisses the SSHD’s appeal and makes obiter comments rejecting the SSHD’s argument that in imputed political opinion cases the court should consider the reasonableness of taking steps to avoid persecution. See paragraph 37 for a useful summary. This case hopefully sounds the death knell for discretion arguments in protection claims. Dublin III

• Secretary of State for the Home Department v ZAT and others (United National High Commissioner for Refugees and AIRE Centre, intervening) [2016] EWCA Civ 810, [2016] All ER (D) 22 (Aug) (02 August 2016)

The Court of Appeal allowed the SSHD’s appeal against the decision of the UT President in the Calais children case, finding that the UT applied the wrong test in setting too low a hurdle for permitting the Dublin III process to be displaced by Article 8 considerations. However by the time of the appeal two of the four children had been granted refugee status and the SSHD accepted that the UK is the correct place for the asylum claims to be determined.

Clearly unfounded certificates

• R (on the application of FR (Albania) and another) v Secretary of State for the Home Department [2016] EWCA Civ 605, [2016] All ER (D) 101 (Jul) (23 June 2016)

In this Albanian blood feud case the Court of Appeal gave comprehensive guidance on the correct approach to certification of claims as ‘clearly unfounded’ under NIAA 2002, s 94. Beatson LJ states at paragraph 62, ‘the intensity of review in a certification case is at the more and possibly most intensive end of the spectrum to which I have referred at [48] above, but the jurisdiction remains a supervisory and reviewing one’. Davis LJ emphasised at paragraph 126 the importance of the two- stage reasoning process in play and avoiding the impermissible approach of, ‘because I have rejected the asylum claim therefore I certify as clearly unfounded’.

British Lawyer · 11 января, 2017

11 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

Updated UK BA Guidance

• Points-based system: Tier 1 (Exceptional Talent): <noindex>https://www.gov.uk/government/publications/...eptional-talent</noindex> - This version explains the new online application process introduced on 19 December 2016

• Guidance on application for UK visa under Tier 5 (Temporary Worker): <noindex>https://www.gov.uk/government/publications/...emporary-worker</noindex>

• Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5): <noindex>https://www.gov.uk/government/publications/...s-1-2-4-5Family</noindex> members of points-based system migrants: <noindex>https://www.gov.uk/government/publications/...system-migrants</noindex> - Updated to allow sponsors to underwrite maintenance for Dependants of Tier 5 migrantsPoints-based system: Tier 5 (Temporary Worker): <noindex>https://www.gov.uk/government/publications/...emporary-worker</noindex> - This guidance has been changed to reflect Immigration Rules changes made in November 2016

• Points-based system: Tier 2: <noindex>https://www.gov.uk/government/publications/...d-system-tier-2</noindex>

• Visitor guidance update: <noindex>https://www.gov.uk/government/publications/visit-guidance</noindex>

• Criminal records checks for overseas applicants (20th December 2016): Criminal records checks for overseas applicants (20th December 2016) - Who can apply, how to apply and contact details for criminal record checks overseas

• Returns preparation: <noindex>https://www.gov.uk/government/publications/...rns-preparation</noindex>

• PBS Dependents’ certain absences from the UK may lead to the PBS dependents’ losing the right to apply for Settlement in line with the recent Statement of changes: <noindex>https://www.gov.uk/government/publications/...3-november-2016</noindex> : “In paragraph 319E(d)(ii) insert after ©:

“In this sub-paragraph “continuous” means an unbroken period and for this purpose a period shall not be considered to have been broken in any of the circumstances set out in paragraph 245AAA(a)(i) to (iii).”.”

• Entry clearance applications as a partner under Appendix FM – acceptable English language tests. See: <noindex>https://www.gov.uk/government/uploads/syste...est_Centres.pdf</noindex> clarified that the applicant needs a test from the list in Table 1, and it only mentions IELTS Life Skills and IELTS for UKVI

General

• Parliamentary and Health Service Ombudsman upholds three in four complaints about the Home Office: <noindex>http://www.ombudsman.org.uk/about-us/news-...-report-reveals</noindex>

• The President of the Immigration and Asylum Chamber of the Upper Tribunal has found that the Home Office abused its power in forcing a college to expel a student and deliberately depriving him of a statutory right of appeal: <noindex>https://www.channel4.com/news/home-office-a...power-over-visa</noindex>

Recent case-law:

• R (on the application of Mohibullah) v Secretary of State for the Home Department (TOEIC – ETS – judicial review principles) [2016] UKUT 00561 (IAC)

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/u...c/2016-ukut-261</noindex>

(i) Where there is a multiplicity of decision making mechanisms, some generating a right of appeal and others not, there is a public law duty on the decision maker to be aware of the options and to take same into account when opting for a particular mechanism.

(ii) Where a Tier 4 Student is considered to have made false representations, thereby being liable to discretionary curtailment of leave and has been withdrawn from a course, thereby being liable to mandatory curtailment action there is a duty on the Secretary of State to consider both of the corresponding sections in the “Curtailment of Leave” policy guidance.

(iii) A failure to give effect to policy guidance without justification is in breach of the Lumba principle and renders the ensuing decision vulnerable to being quashed.

(iv) Where a curtailment of leave decision is underpinned by the Secretary of State’s decision that leave to remain had been procured by deception, the appropriate standard of review is the Wednesbury principle rather than proof of the precedent fact of deception.

(v) A decision which has a conspicuously unfair impact on the subject may qualify for condemnation as unreasonable, or irrational, in contravention of the Wednesbury principle.

(vi) The student’s knowledge of an allegation by ETS that he has procured his TOEIC certificate by deception will normally suffice to convey the gist of the case against him, thereby rendering the Secretary of State’s decision making process (in this respect) procedurally fair.

British Lawyer · 16 января, 2017

16 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

Помощь юриста: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

Помощь психолога: <noindex>www.antonkoval.com</noindex>

Recent case-law

• Shabir Ahmed and others (sanctions for non–compliance) [2016] UKUT 00562 (IAC): <noindex>https://tribunalsdecisions.service.gov.uk/u...c/2016-ukut-562</noindex>

Head note

Persistent and egregious non-compliance with Upper Tribunal orders, directions and rules will attract appropriate sanctions.

Case note

In a strongly worded judgment by McCloskey, J (President) and Holmes, J (Deputy Upper Tribunal Judge), the Upper Tribunal criticises the conduct of the parties in the four cases before it and in other recent cases, including the three recent ‘ETS’ cases.

Conduct criticised in the present cases included failure to comply with directions or seek clarification of these, failure to seek a case management review hearing if appropriate, repeated unmeritorious requests to adjourn the hearing, failure to provide a hearing bundle or skeleton argument. The Tribunal held:

To describe this state of affairs as grossly unsatisfactory is an acute understatement. The Upper Tribunal has been treated with sustained and marked disrespect. The conduct of these appeals has been cavalier and unprofessional. The rule of law has been weakened in consequence. (§7)

The Upper Tribunal gave a warning of how it would treat misconduct in the future:

“The Upper Tribunal will, henceforth, have recourse to the full panoply of sanctions at its disposal. These include in particular wasted costs orders. There will also be reporting of rulings of this kind. Furthermore, consideration will be given to the invocation of the Upper Tribunal’s contempt powers, together with referrals to professional bodies. (§10)”.

• Naturalization applications, the point on the hospital orders. It is worth noting that the hospital orders will remain on the applicant’s criminal record. The applicant’s GP should know whether and when the patient was ‘conditionally’ or ‘absolutely’ discharged. See paragraph 3.7 of the Good Character requirement as to the impact of hospital orders.

• PBS Maintenance. Para 1A(h) of Appendix C explains that:

“(h) the end date of the 90-day and 28-day periods referred to in ( and © above will be taken as the date of the closing balance on the most recent of the specified documents (where specified documents from two or more accounts are submitted, this will be the end date for the account that most favours the applicant), and must be no earlier than 31 days before the date of application”.

That means that the so-called “90 day period” is counted backwards from the date of the closing balance, not forward from the applicant’s date of choice. That should be taking into consideration when submitting the bank statements with the PBS applications.

• Updated Home Office guidance on permission to work and volunteer for asylum seekers: <noindex>https://www.gov.uk/government/publications/...ent-instruction</noindex>

Changes since the last version of the guidance:

- updated to include reference to criminality and delay when considering permission to work applications

- improved guidance on applying for permission to work to provide clarity for claimants on what is expected

- updated information about the difference between working for a voluntary organisation and volunteering to make clearer that asylum seekers are able to volunteer

- new guidance template applied, and section and paragraph numbering removed in line with guidance requirements

• Total of 31 illegal immigrants removed from UK as a result of Right to Rent: <noindex>http://www.propertyindustryeye.com/total-o...-right-to-rent/</noindex>

British Lawyer · 18 января, 2017

18 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

• Updated UK Visas and Immigration Guidance: Transfer of conditions, Version 12.0 (16 January 2016): <noindex>https://www.gov.uk/government/publications/...r-of-conditions</noindex>

UK Visas and Immigration guidance on how staff process transfer of condition applications for applicants who have limited leave endorsed in a passport that is lost, stolen, damaged or due to expire and need to transfer their visa to a biometric residence permit (BRP).

Changes from last version of this guidance: Minor housekeeping changes and placing the guidance into the new format

Recent case-law:

• Chin and Another (former BOC/Malaysian national – deportation) [2017] UKUT 00015 (IAC)

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-15</noindex>

The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect.

• VA (Solicitor’s non-compliance: counsel’s duties) Sri Lanka [2017] UKUT 00012 (IAC)

Tribunals Service link: <noindex>https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-12</noindex>

(i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors.

(ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.

British Lawyer · 19 января, 2017

20 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

Tier 5 Youth Mobility (Working Holiday Maker) Visa Processing Change (19 January 2017)

“With immediate effect, Youth Mobility visas can now be post-dated by a maximum of 6 months from the application date (the date the fee is paid). Please let your clients know. The website has already been updated. This only applies to the Youth Mobility Scheme. All other categories can only be post-dated up to a maximum of 3 months from the application date.”

Reent case-law

Paposhvili v Belgium, App. No. 41738/10, European Court of Human Rights

In Paposhvili v Belgium, App. No. 41738/10, the European Court of Human Rights concluded that

“the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision.” (paragraph 181)

The court proceeds to ‘clarify’ (using the word in the Home Office’s sense of ‘change’) its approach. The court holds that the reference in in N. v. the United Kingdom (Application no. 26565/05; judgment of the Grand Chamber of 28 May 2008) to “other very exceptional cases” which may raise an issue under Article 3 should be understood to refer to “situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.

At issue is the negative obligation not to expose persons to a risk of ill‑treatment proscribed by Article 3, comparing their health prior to removal and subsequent to any transfer. The court reiterates that the benchmark is not the health care system in the returning State. Instead the focus is on the individual and their suffering. That the country to which the person is to be returned is a party to the Convention is not decisive of the matter (citing M.S.S. v. Belgium and Greece, Appl. no. 30696/09, judgment of of 21 January 2001 and Tarakhel v Switzerland, Appl.no. 29217/12 , judgment of 4 November 2014. The court also found that removal would violate Article 8.

The case has the potential to put an end to the long line of injustice and suffering that has resulted from the N judgment and those with clients with terminal or chronic illnesses should consider making fresh representations and amending pleadings in the light of it.

Supreme Court on 3C leave and invalid applications

In R (Mirza, Iqbal & Ehsan) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016), the UK Supreme Court has ruled that leave is not extended under section 3C of the Immigration Act 1971 where it later turns out that the application made for further leave to enter or remain was invalid. This means that a person whose application to extend their leave turns out to be invalid after their leave has expired does not benefit from 3C leave, including during the period before the mistake is discovered.

The Supreme Court based its findings on the application of ordinary principles of statutory interpretation and considered that the drafters of the relevant legislation could be assumed to have taken its practical implications into account. However, the Court was critical of the Home Office for not having addressed the difficulties caused by the lack of flexibility.

British Lawyer · 24 января, 2017

24 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

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· Brexit Update: The UK Prime Minister, Theresa May must seek the UK parliament's approval to trigger the Article 50 following the UK Supreme Court's Judgement today, on the 24th January 2017: <noindex>https://www.theguardian.com/politics/blog/l...t-politics-live</noindex>

- Lords Library Note on 'Leaving the European Union: The Single Market, the Rights of EU Citizens in the UK and the UK’s Future Economic Requirements', LLN 2017/006, 20 January 2017 <noindex>http://researchbriefings.parliament.uk/Res...y/LLN-2017-0006</noindex>

- Changes to process for UK settlement visa applicants in Australia

UK Visas & Immigration is changing the way UK settlement visa applicants in Australia submit their supporting documents. From 30 January, 2017, all supporting documents should be sent to the UK address below by the sponsor or applicant: PO Box 5852, Sheffield, S11 0FX, United Kingdom

Applicants can also choose a new service in which their documents will be scanned and submitted by our commercial partner, VFS Global, for an additional fee. The UK BA aims to make a decision on a settlement visa in 60 working days. If you have opted for our Settlement Priority Visa Service, your application will be put at the front of the queue and the decision expedited. Further guidance on the new process will be posted on our website <noindex>https://www.gov.uk/government/publications/...y-for-a-uk-visa</noindex> and the VFS Global website www.vfsglobal.co.uk/Australia in the coming days.

· Request for Tier 2 unrestricted CoS allocation

From th UK BA: "Due to the high demand for this service it is not always possible to get through to the payment line and we are aware of Customers needing to make multiple attempts.

Unfortunately, at present the only way to obtain the Priority service is by phone, and you will need to persist with the helpline.

UKVI are constantly looking at way to improve the services we offer and your feedback is important to us. It has been shared with the project team who are reviewing the capacity of the service and will help inform future decisions in relation to this service.

There are 20 slots available each working day, these are allocated on a first come first served basis. The telephone line opens at 9am and the first 20 people to get through and pay the fee are allocated slots, the system does not have a queuing facility and callers will receive a message when the line is engaged.

Once all slots are allocated the telephone message will be updated to advise callers of this. We will on occasions answer the telephone after all slots are allocated, this is to help us gather information on demand to help inform any future decisions on increasing the number of slots available.".

Recent case-law:

High Court declares Detained Fast Track Appeals Procedure Rules 2005 unlawful: R (TN (Vietnam) & US (Pakistan)) v SSHD [2017] EWHC 59 (Admin), 20 January 2017

BAILII case link: <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2017/59.html</noindex>

The High Court has made a declaration that the Detained Fast Track Appeals Procedure Rules in force between 2005 and 2014 were unlawful.

In R (TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) (20 January 2017), the High Court has held that the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, SI 2005/560, which were in force until October 2014, were unlawful. The later fast track appeals procedure rules, in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014/2604, in force from October 2014 were found unlawful in an earlier challenge brought by Detention Action.

The judgment then considers how decisions made on cases under the fast track procedure rules in force should be dealt with.

British Lawyer · 30 января, 2017

30 January 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

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⦁ The MAC has published its report ‘Partial review of the Shortage Occupation List: Review of teachers’: <noindex>https://www.gov.uk/government/publications/...tages-in-the-uk</noindex>

⦁ EU nationals need to use the official 85 page permanent residence application form. From 1 February 2017 it seems likely that it will be mandatory to use the official application forms for EEA residence document applications, either online or on paper, that are provided by the Home Office. This is a new requirement introduced by paragraph 21 of the Immigration (European Economic Area) Regulations 2016, which come into force on 1 February 2017. The relevant parts of the regulation say that an application for residence documents must be made:

"(a) online, submitted electronically using the relevant pages of www.gov.uk; or

( by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk."

British Lawyer · 2 февраля, 2017

02 February 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

⦁ Updated guidance on international travel bans, Immigration Enforcement criminal investigation adoption criteria: <noindex>https://www.gov.uk/government/publications/...gation-criteria</noindex>

This guidance includes information on:

a. Immigration Enforcement’s strategic objectives

b. adoption criteria for high harm and volume immigration crime

c. adoption criteria for serious and organised immigration crime

d. Immigration Enforcement’s case adoption process

e. contact points for referring cases to Immigration Enforcement

f. offences commonly encountered by immigration officers

⦁ International travel bans: <noindex>https://www.gov.uk/government/publications/...nal-travel-bans</noindex>

UK Visas and Immigration guidance for staff on how to manage individuals who are, or are suspected of being, subject to a UN (United Nations) or EU (European Union) travel ban.

British Lawyer · 6 февраля, 2017

06 February 2017 - UK & EEA Immigration Law Updates from the Legal Centre

ENG: Legal Centre’s Services at a glance: <noindex>https://legalcentre.org/</noindex>

RUS: Вкраце об услугах Legal Centre: <noindex>https://legalcentre.org/language.php?lang=ru</noindex>

⦁ Correcting the incorrect (visa/BRP) endorsement guidance: <noindex>https://www.gov.uk/government/publications/...dorsement-ecb19</noindex>

⦁ The UK BA intends to phase out the paper based immigration forms completely:

"The service, called Access UK, is now available to those applying for leave to remain as the partner of a person present and settled in the UK or in the UK with refugee leave or humanitarian protection, and for leave to remain on the basis of their private life. This service is available here <noindex>https://visas-immigration.service.gov.uk/pr...t/family-routes</noindex>

These new digital forms are being built in line with the Government Digital Service’s principles, using an ‘agile’ approach which involves a commitment to continuously improve services based on user feedback. The forms are being launched to allow some customers to benefit from applying online. We anticipate that customers will benefit because they may find it quicker and convenient to complete a digital form. In the first instance those wishing to make a fee waiver application will not be able to use this service. It is our intention however, that future releases, will allow all those making an application on the basis of family and private life to use Access UK. It is important to note that all paper forms for Family routes, including the FLR (M) and FLR (FP) forms, will remain available in the immediate future via GOV.UK.".

New guidance resource on Immigration (European Economic Area) Regulations 2016, SI 2016/1052 (3 February 2017)

The Immigration (European Economic Area) Regulations 2016, SI 2016/1052 came into force on the 25th November 2016 and the 1st February 2017.

⦁ European Economic Area nationals: misuse of rights and verification of EEA rights of residence Version 2.0: <noindex>https://www.gov.uk/government/publications/...ts-of-residence</noindex>

UK Visas and Immigration guidance for staff on how they assess whether a person has misused a European Economic Area (EEA) right of residence in the UK and how to verify an EEA right of residence.

Changes from the last version of this guidance:

Completely redesigned and reformatted in line with new processes and updated in line with changes to the Immigration (European Economic Area) Regulations 2016.

⦁ Guidance: Removals and revocations of EEA nationals Version 2.0: <noindex>https://www.gov.uk/government/publications/...a-eea-nationals</noindex>

UK Visas and Immigration guidance about the processes for removing an EEA national from the UK, and revoking a document issued to an EEA national confirming a right of residence in the UK.

Changes from last version of this guidance:

Changes to reflect the Immigration (European Economic Area) Regulations 2016

completely revised by the free movement policy team and the guidance, rules and forms team.

Other minor changes

⦁ Guidance: EEA nationals qualified persons: <noindex>https://www.gov.uk/government/publications/...alified-persons</noindex>

This document explains how UK Visas and Immigration assesses if an EEA national is a qualified person.

Changes from last version of this guidance

01 February 2017 – Changes made to reflect commencement of Immigration (European Economic Area) Regulations 2016

placed into the new template

⦁ Exclusion of EEA nationals and their family members from the UK Version 5.0: <noindex>https://www.gov.uk/government/publications/...ies-from-the-uk</noindex>

UK Visas and Immigration modernised guidance for how it excludes European Economic Area (EEA) nationals and their family members from the UK under the Immigration (European Economic Area) Regulations 2006 (as amended) (’the Regulations’).

Changes from last version of this guidance:

out of date appeals information redacted

⦁ Criminal casework, Exclusion decisions and exclusion orders Version 5.0: <noindex>https://www.gov.uk/government/publications/...xclusion-orders</noindex>

UK Visas and Immigration modernised guidance about the difference between an exclusion decision and an exclusion order and how they deal with criminal casework cases relating to the subject of exclusion.

Changes from last version of this guidance:

out of date appeals information removed

⦁ New guidance: EEA decisions on grounds of public policy and public security Version 1.0: <noindex>https://www.gov.uk/government/publications/...f-public-policy</noindex>

UK Visas and Immigration guidance for staff on how decisions should be made under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016) on the grounds of public policy and public security.

This guidance applies to all public policy and public security decisions made on or after 1 February 2017.

⦁ European Economic Area (EEA) and Swiss nationals: free movement rights Version 15.0: <noindex>https://www.gov.uk/government/publications/...orcement-action</noindex>

This guidance is based on the Immigration (European Economic Area) Regulations 2016 and the Free Movement of Persons Directive 2004/38/EC. It is UK Visas and Immigration’s modernised guidance for how it considers the free movement rights of nationals of the EEA and Swiss nationals, and who can enter and live in the UK under European Community (EC) law.

Changes from last version of this guidance

1 February 2017 – Changes made to reflect commencement of Immigration (European Economic Area) Regulations 2016

Placed into the new template

⦁ European Economic Area (EEA) administrative removal, Version 3.0:https://www.gov.uk/government/publications/considering-immigration-status-and-deciding-enforcement-action

Guidance on considering status and deciding action for enforcement officers dealing with immigration enforcement matters, including curtailment, within the UK.

Changes from last version of this guidance

Marriage of convenience sections updated to refer to time limited deportations under regulation 23(6)( as detailed in EEA guidance: decisions taken on public policy or public security grounds’.

Proportionality and vulnerability of rough sleepers clarified; update to regulation numbers and removal of sham marriage as admin removal category (now deportation) EEA Regulation changes commencing 1 Feb.

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