Важные судебные решения и новости для иммигрантов

[British Lawyer]

30 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

What is the PEO application date vs Entry Clearance application vs UK BA Postal application date ?

1) The date of the PEO (same day service application at the UK BA PEO) application is be the date the application is submitted at the PEO, and not the date of booking an appointment. The paragraph 34G (ii) applies.

 

2) The Entry Clearance (EC; application to come to the UK) application date is usually the date the application fee is paid

 

3) The UK BA Postal application date is the date either :

 

- Royal Mail delivery – the date the application was posted by the applicant

- Courier delivery – the date the courier delivered the application to the UK BA

 

 

 

[British Lawyer]

31 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>AG: permanent residence needed before ‘enhanced protection’ kicks in: <noindex>https://curia.europa.eu/jcms/upload/docs/ap.../cp170109en.pdf</noindex>

 

Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union (CJEU) joined cases of B v Land Baden-Württemberg C-316/16 and Secretary of State for the Home Department v Franco Vomero C-424/16.

The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion.

 

 

>Home Secretary Amber Rudd announces review of Immigration Rules

 

The Home Secretary, Amber Rudd, has announced that the Law Commission will conduct a review of the Immigration Rules. The review came to light in Rudd’s oral evidence to the Home Affairs Select Committee on 17 October but Law Commission staff had already begun meetings before then.

 

At question 84, Rudd was asked about the complexity of the rules. She replied:

 

“I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they can’t apply.”

 

V>Visa rules confusion forces successful entrepreneurs to leave UK

 

In 2011, Russell and Ellen Felber set up the award-winning Torridon Guest House in Inverness. It has hundreds of stellar reviews across TripAdvisor and similar sites. The New Yorkers made their home in the Highlands having fallen in love with the area during a holiday there, initially spending £300,000 to purchase the guesthouse, and a further £100,000 on its refurbishment.

 

Now the Felbers must leave Scotland and everything they have built. Their application for settlement was refused by the Home Office following an alleged misreading by the couple (and their solicitor) of the requirements of the entrepreneur job creation rules. That decision was upheld last week in Felber & Anor v SSHD [2017] ScotCS CSOH 130 in the Scottish Outer Court of Session.

 

The only basis of the refusal was that, during the two-year extension period of his leave, Mr Felber had not satisfied the Tier 1 (Entrepreneur) job creation requirement. The Secretary of State accepted that he had satisfied this requirement during the initial three years.

 

 

 

[British Lawyer]

02 November 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

New UK Visas and Immigration Guidance - November 2017 - Обновилось достаточно больше количество т.н. Guidance Notes по разным иммиграционным категориям:

>UK Visas and Immigration Guidance - Immigration status checks: guidance for banks and building societies (30 October 2017) : <noindex>https://www.gov.uk/government/publications/...dance-for-banks</noindex>

 

>UK Visas and Immigration Guidance: Current account closed or refused based on immigration status (30 October 2017) : <noindex>https://www.gov.uk/government/publications/...igration-status</noindex>

 

>UK Visas and Immigration - Free movement rights: family members of British citizens (27 October 2017) : <noindex>https://www.gov.uk/government/publications/...ritish-citizens</noindex>

 

>UK Visas and Immigration - Assessing ordinary residence: nationality policy guidance (27 October 2017) : <noindex>https://www.gov.uk/government/publications/...policy-guidance</noindex>

 

>UK Visas and Immigration Guidance - Immigration status checks: guidance for banks and building societies (30 October 2017) : <noindex>https://www.gov.uk/government/publications/...dance-for-banks</noindex>

 

>UK Visas and Immigration Guidance - Representatives of overseas business (27 October 2017) : <noindex>https://www.gov.uk/government/publications/...seas-businesses</noindex>

 

>UK Visas and Immigration Guidance - Tier 2 and 5 points-based system sponsor licensing: maintenance (26 October 2017) : <noindex>https://www.gov.uk/government/publications/...ing-maintenance</noindex>

 

>UK Visas and Immigration - Free movement rights: family members of British citizens (27 October 2017) : <noindex>https://www.gov.uk/government/publications/...ritish-citizens</noindex>

 

>UK Visas and Immigration Guidance - UK leaving the EU: what you need to know (26 October 2017) : <noindex>https://www.gov.uk/government/collections/u...ou-need-to-know</noindex>

 

>UK Visas and Immigration Guidance - Points-based system: Tier 2 (1 November 2017) : <noindex>https://www.gov.uk/government/publications/...d-system-tier-2</noindex>

 

Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant.

 

 

 

 

 

 

[British Lawyer]

03 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Do Irish citizen need to apply for Permanent Residence Card (PRC) before they can apply for Naturalization as British citizens ?

 

No, according to the UK BA:

 

“The position of Irish citizens is different to that of other EEA nationals. Irish citizens are not normally subject to any form of immigration control on arrival in the UK because of Ireland’s inclusion in the Common Travel Area. This means that they are treated as free of immigration time restrictions for naturalisation purposes. They do not therefore need to apply for a PRC before applying for naturalisation ”

 

 

>>> How to add a child born in the UK to the parent’s refugee claim ?

 

One can write a letter, including the child’s birth certificate and parents documents to : Leave in Line Team, CCWD, 7th Floor, OLCU 21, The Capital, Old Hall Street

Liverpool, L3 9PP

 

>>> Visa endorsements and conditions: ECB13 : <noindex>https://www.gov.uk/government/publications/...onditions-ecb13</noindex>

 

Information and guidance on handling visa applications made outside the UK.

 

>>> Can a postal application be varied (changed to and processed) via the same day (PEO/PSC) service ?

 

In fact, it can be. The PEO usually holds the application and requests the passport to check stamps and then the applicant normally receives a decision in a few weeks time.

 

 

 

[British Lawyer]

06 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> Appeal waiting times continue to rise : <noindex>https://www.gov.uk/government/statistics/tr...nd-2016-to-2017</noindex>

Immigration appeal waiting times rise 13%, now take a year on average

 

The average immigration appeal takes almost 12 months to be resolved, up 13% on the same period last year.

This is despite the fact that less than half as many people now have the chance to challenge Home Office decisions. The number of appeals handled by the immigration tribunal has fallen from around 20,000 to 8,000 – a startling 60% fall – since the Immigration Act 2014 was passed.

 

Appeal waiting times continue to rise

 

Immigration and asylum appeals at the First-tier Tribunal took 51 weeks to be resolved in April-June 2017 – the latest period for which data is available – according to the Ministry of Justice. That represents an increase of seven weeks on the same period last year.

 

> Appendix FM Applications (“spouses of UK citizens”) - savings

 

Please note that if you are relying upon the savings option, your sponsor now (recent change) also needs to provide a signed (additional) declaration letter confirming the source of funds.

 

 

 

[fregat222]

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[British Lawyer]

07 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> UK Visas and Immigration Guidance: Chapter 08: appendix FM family members (immigration directorate instructions) (1 November 2017) : <noindex>https://www.gov.uk/government/publications/...-family-members</noindex>

 

Chapter 8 of the immigration directorate instructions which deals with family applications made after 9 July 2012.

 

>UK Department of Health Guidance on implementing the overseas visitor charging (30 October 2017) : <noindex>https://www.gov.uk/government/uploads/syste...gs_guidance.pdf</noindex>

 

 

 

[British Lawyer]

08 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> Home Office and Department for Exiting the European Union Policy Paper 'Citizens' rights: administrative procedures in the UK' (7 November 2017) : <noindex>https://www.gov.uk/government/publications/...dures-in-the-uk</noindex>

 

New document sets out how EU citizens will be supported through an application process which is streamlined and easy to use.

 

> Dependence on an EEA national – non-financial dependency

 

Dependency does go wider then just financial dependency – as established in the court case of the Reyes v Secretary of State for the Home Department (EEA Regs: dependency) [2013] UKUT 314 (http://www.bailii.org/uk/cases/UKUT/IAC/2013/00314_ukut_iac_2013_r_philippines.html), particularly at paragraph 19. Where there is no financial dependency, the physical dependency will have to be substantial and well evidenced.

 

> Appendix FM Applications – Financial Aspect – Income from stocks and shares

 

Such income from stocks and shares can also count towards meeting the financial requirement. The applicant would not have to wait six months, compared to the funds from savings:

 

Appendix FM-SE 11A. In respect of cash savings:

 

(a) The savings may be held in any form of bank/savings account (whether a current, deposit or investment account, provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating), provided that the account allows the savings to be accessed immediately (with or without a penalty for withdrawing funds without notice). This can include savings held in a pension savings account which can be immediately withdrawn.

( Paid out competition winnings or a legacy which has been paid can contribute to cash savings.

© Funds held as cash savings by the applicant, their partner or both jointly at the date of application can have been transferred from investments, stocks, shares, bonds or trust funds within the period of 6 months prior to the date of application, provided that:

(i) The funds have been in the ownership and under the control of the applicant, their partner or both jointly for at least the period of 6 months prior to the date of application.

(ii) The ownership of the funds in the form of investments, stocks, shares, bonds or trust funds; the cash value of the funds in that form at or before the beginning of the period of 6 months prior to the date of application; and the transfer of the funds into cash, are evidenced by a portfolio report or other relevant documentation from a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating.

(iii) The requirements of this Appendix in respect of the cash savings held at the date of application are met, except that the period of 6 months prior to the date of application in paragraph 11(a) will be reduced by the amount of that period in which the relevant funds were held in the form of investments, stocks, shares, bonds or trust funds.

(iv) For the purposes of sub-paragraph 11A©, “investments” includes funds held in an investment account or pension account or fund which does not meet the requirements of paragraphs 11 and 11A(a).

[British Lawyer]

09 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> What to do is someone is in detention Guide : <noindex>https://docs.google.com/document/d/1MroeL6y...yXPWLaZcOw/edit</noindex>

 

[British Lawyer]

13 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> Free Movement and Deportation: Nonjudicial Restrictions on the Right to Work are Lawful : <noindex>https://asadakhan.wordpress.com/2016/12/30/...ork-are-lawful/</noindex>

 

Interesting piece of information in relation to the lawfulness of the restrictions on the right to work under the EEA law

 

 

 

 

[British Lawyer]

14 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

> New guidance on the Surinder Singh route can be found here : <noindex>https://www.gov.uk/government/publications/...ritish-citizens</noindex>

 

“Use it or lose it “ (when the Brexit is formalized”)

 

The changes to the guidance include an additional clarification that a British citizen does not need to be a “qualified person” in their initial three months back in the UK to sponsor a family member in a Surinder Singh application. There are also new sections about retained rights of residence and the assessment of UK residence prior to 25 November 2016.

 

> Worker Registration Scheme (WRS) extension unlawful, Court of Appeal confirms : <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2017/1751.html</noindex>

 

In a decision of 7 November 2017, the Court of Appeal unanimously found, yet again, that the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 was unlawful and incompatible with EU law.

The Court of Appeal also considered a point about the meaning of “resided” in article 17(1)(a) of the Citizens Directive, which allow workers or self-employed people who retire to acquire permanent residence earlier than the usual five years. This is provided they have worked in the country for the preceding 12 months and “have resided there continuously for more than three years. So the court found that “resided” in that context meant “legally resided”.

 

 

 

 

[British Lawyer]

15 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Visa refused ? It is not all lost. Know your rights – a very useful paragraph of the UK immigration Rules – exceptions for overstayers : <noindex>https://www.gov.uk/guidance/immigration-rul...-the-uk#pt1stay</noindex>

 

Para 39 :

 

Exceptions for overstayers

 

1. 39E. This paragraph applies where:

 

1. (1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or

 

2. (2) the application was made:

1. (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and

2. ( within 14 days of:

1. (i) the refusal of the previous application for leave; or

2. (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or

3. (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or

4. (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.

 

Practical use of para 39E.

 

Say, someone has his/her (extension) application refused in the UK and appeals. The appeal process nowadays in the UK takes sometimes more than a year, so in case of the above applicant can then meet the relevant immigration Rule(s), he/she may withdraw the appeal and make a fresh application within the 14 days. The applicant would then benefit from the provision of the above para 39E and not be treated as an overstayer. Therefore it is then possible to even lodge a same day service (extension) application at the UK BA Premium Service Centre (PSC).

 

Note, though, that the applicant in the above scenario may not make a fresh application whilst she/he is on the Section 3C leave (that is, while the appeal is pending following a refusal of the previous immigration application. The general opinion is that those UK BA caseworkers at the PSC tend to be more forgiving than the caseworkers somewhere at the postal application end, who one never gets to see. The bottom point is that, if one's appeal is bound to fail, it would be good to consider a new application.

 

Are you or your friends and family members in a similar situation ? We may be able to help. See our friendly web-site and read the reviews at www.legalcentre.org

[British Lawyer]

16 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> The applicant's FLR(FP) application is certified as clearly unfounded by the UK BA. Further options ?

 

If the applicant's FLR(FP) decision was certified by the UK BA as clearly unfounded, and the applicant's leave as granted has expired, then the applicant's continuing leave under the Section 3C has already come to an end. The applicant then does have the 14 days to make another application, but the applicant will remain an overstayer in the meantime (with no right of employment etc).

 

>>> “Worker or self-employed person who has ceased activity” - EEA law

See the Regulation 5, namely :

 

“Worker or self-employed person who has ceased activity”

 

5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).

(2) The condition in this paragraph is that the person—

(a) terminates activity as a worker or self-employed person and—

(i) had reached the age of entitlement to a state pension on terminating that activity; or

(ii) in the case of a worker, ceases working to take early retirement;

( pursued activity as a worker or self-employed person in the United Kingdom for at least 12 months prior to the termination; and

© resided in the United Kingdom continuously for more than three years prior to the termination.

(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—

(a) had resided in the United Kingdom continuously for more than two years prior to the termination; or

( the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.

(4) The condition in this paragraph is that the person—

(a) is active as a worker or self-employed person in an EEA State but retains a place of residence in the United Kingdom and returns, as a rule, to that place at least once a week; and

( prior to becoming so active in the EEA State, had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.

(5) A person who satisfied the condition in paragraph (4)(a) but not the condition in paragraph (4)( must, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period during which that person is working or self-employed in the EEA State.

(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person do not apply in relation to a person whose spouse or civil partner is a British citizen.

(7) Subject to regulation 6(2), periods of—

(a) inactivity for reasons not of the person’s own making;

( inactivity due to illness or accident; and

© in the case of a worker, involuntary unemployment duly recorded by the relevant employment office,

must be treated as periods of activity as a worker or self-employed person, as the case may be.

 

 

 

[British Lawyer]

17 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Return of passport by Home Office to sit Secure English Language Test

 

The Home Office has confirmed that where it holds the passport of a migrant who wishes to sit the Secure English Language Test (SELT) it will either return the passport to enable the migrant to sit the SELT or will confirm directly with the SELT centre that the passport is held and is genuine. See <noindex>https://2xsoic30m4ba2ervd35c9n41-wpengine.n...guage-Tests.pdf</noindex>

 

>>> Appendix FM (Settlement applications of partners of the UK/Settled nationals) and para 320(11) Refusals

 

Did you have some sort of breach of the immigration conditions during your stay in the UK ?The following information may be of importance to you.

 

Whilst the Appendix FM purports to be a full code, the para 320(11) on general grounds for refusal will also apply. This gives the UK BA powers to refuse entry clearance, for example, if the person has a poor immigration history. Whilst it is not the mandatory re-entry ban that is in place under the PBS (Points Based System), it is a discretionary re-entry ban that was imported into Appendix V, but left out of Appendix FM, so that applicants do not know about it if they rely on Appendix FM on its own. Para 320(11) seems to be used not only for those with ‘atrocious’ immigration histories but is being applied to others such as to people who have gone home to regularise their stay after having made a ‘frivolous’ application in the UK. They are told they will be refused entry clearance to the UK for two years due to their failure to meet the suitability requirement.

 

>>> SET DV (Settlement on the basis of Domestic Violence) refusals – not appealable ?

 

According to the UK BA, despite the SET DV applications technically also being human rights applications, the UK BA stance is that the SET DV refusals are not appealable.

 

>>> EEA application – old photos = refusal

It has come to our attention that the UK BA started rejecting the EEA type application when the applicants submit photos older than 1 month. The UK NA in that case keeps the applications for some 4 months, then returns the applications as “rejected” (no right of appeal) as well as the UK BA also deducts the £25 “application rejection admin fee”.

 

Just a reminder that with any UK BA application the applicant's photos must not be older than 1 MONTH on the date of the application.

 

>>> Tier 2 Sponsorship – the salary must not drop below the minimum threshold due to fluctuations in the exchange rate

 

According to the UK BA, the migrant's salary can never drop below the minimum threshold due to fluctuations in the exchange rate, something which is covered by guidance (in that this is not noted as one the exemptions for salary dropping below the threshold). The only way the sponsor would be able to determine whether this has happened is by checking the exchange rate.

 

How the sponsor chooses to do this will be up to them, but if they are found to have been sponsoring a migrant who is being paid below the threshold then compliance action is likely to be taken against them.

 

>>> UK Visas and Immigration news: Government doubles exceptional talent visa offer : <noindex>https://www.gov.uk/government/news/governme...lent-visa-offer</noindex>

 

Double the number of visas will be made available to leading figures and individuals who show promise in technology, science, art and creative industries, the government announced today.

 

>>> Updated UK Visas and Immigration Nationality Guidance (multiple documents) :

 

- Right of Abode (nationality guidance) : <noindex>https://www.gov.uk/government/collections/r...nality-guidance</noindex>

- British citizenship (nationality guidance) :

<noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

- British overseas citizens (nationality guidance) : <noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

- British overseas territories citizens (BOTC) (nationality guidance) : <noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

- Requirements and considerations common to all types of British nationality (nationality guidance) : <noindex>https://www.gov.uk/government/collections/r...nality-guidance</noindex>

- British subjects (nationality guidance) : <noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

- British protected persons (nationality guidance) : <noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

- Historical background information on nationality (nationality guidance) : <noindex>https://www.gov.uk/government/collections/h...nality-guidance</noindex>

- British nationals overseas (nationality guidance) : <noindex>https://www.gov.uk/government/collections/b...nality-guidance</noindex>

 

 

 

[British Lawyer]

20 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Entry Clearance – Settlement Visa to enter the UK granted yet expires before the migrant travels to the UK. Options ?

 

Should the above happen, that is, the Entry Clearance – Settlement Visa to enter the UK is granted yet expires before the migrant travels to the UK, the migrant then can use the “Vignette Transfer” option on the UK BA web-site to re-instate the “lapsed” Settlement Entry Clearance Visa. The current UK BA fee for this Vignette Transfer application is £169.00.

 

>>> Supreme Court rejects a right to contribution-based benefits for Zambrano carers : <noindex>https://www.supremecourt.uk/cases/docs/uksc...15-judgment.pdf</noindex>

 

In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible to contribution-based benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system.

>>> Northern Irish tribunal finds against Home Office on dual nationality : <noindex>https://www.irishtimes.com/news/social-affa...itish-1.3288670</noindex>

 

A woman from Northern Ireland who refuses to identify as British in order to facilitate her husband’s immigration application has succeeded in her First-tier Tribunal challenge against the refusal of a residence card.

 

The Home Office had told Emma DeSouza, who is from Magherafelt and holds an Irish passport, that as a British citizen she could not use more generous EU free movement laws to sponsor her American husband Jake DeSouza. The essence of the tribunal decision in the couple’s favour is that, due to the Good Friday Agreement, people from Northern Ireland can be Irish citizens only and so eligible to use the more liberal EU sponsorship rules. As mentioned in our latest media round-up, the case has already been reported in the Irish press.

 

It had been the position of the Home Office that people from Northern Ireland who hold Irish citizenship are also British. As such, they were not allowed to use their Irish citizenship as a back door to family reunion.

 

>>> High Court: potential homelessness not a justification for detention : <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2017/2797.html</noindex>

 

The High Court in R (MS) v Secretary of State for the Home Department [2017] EWHC 2797 (Admin) has found that in circumstances where a person would have no option but to stay on the streets after release from detention, the Home Office has a duty under Article 3 of the European Convention on Human Rights to provide them with suitable bail accommodation with reasonable speed. Potential homelessness cannot be a reason for prolonged detention.

 

>>> The current UK BA Good Character Requirement in relation to the Naturalization applications can be found here : <noindex>https://www.gov.uk/government/publications/...policy-guidance</noindex>

 

>>> The “hostile environment” seeps into criminal trials: defendants must state nationality or face prison : <noindex>http://www.legislation.gov.uk/uksi/2017/915/article/3/made</noindex>

 

From this week, defendants in the criminal courts must state their nationality. Anyone who fails to do so can be jailed for up to a year.

 

 

[British Lawyer]

23 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

>>> Expired passport with a valid visa. Options ?

 

If your passport has expired you can still use the valid visa in your expired passport, but you will need to show your expired passport and your new passport when you are travelling to and from the UK. See <noindex>https://www.gov.uk/transfer-visa</noindex>

 

 

[British Lawyer]

24 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Can a child on a visitor visa in the UK change his/her status and remain in the UK ?

 

Children who are visitors in the UK may, under Para 298, switch to remain in the UK, provided they meet the requirements of the Para 298

 

>>> Can a spouse of British citizen with a joint British citizen child, including a dual national child, switch in-country, while being on a visitor's visa ?

 

A spouse of a British citizen with a joint UK (or UK/Dual national child) may make an in-country (preferably, a same day service application as the level of the so-called discretion is higher in the PEO applications) FLR (FP) application based on the British child. If approved, the leave to remain will be the so-called L(eave)T(o)R(emain) under the 10 year Route to Settlement outside the rules. Then, of course, the applicant may switch into the “proper” LTR as a spouse of a UK citizen on the so-called 5 year Route to Settlement.

 

 

 

[British Lawyer]

27 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> UK Visas and Immigration Guidance on policy for UK visas under Tier 1 (Exceptional Talent) (24 November 2017) : <noindex>https://www.gov.uk/government/publications/...eptional-talent</noindex>

 

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

[British Lawyer]

28 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Domestic violence cases can attract a right of appeal, says High Court : <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2017/2589.html</noindex>

 

Since April 2015, only very limited types of immigration case can be appealed. In the case of AT, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), the High Court found that despite what the Immigration Rules say, an application for indefinite leave to remain on the basis of domestic violence can be a human rights claim and therefore attract a right of appeal.

 

>>>UK BA pays out £24,515.43 by order of a Deputy High Court judge for false imprisonment : <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2017/2857.html</noindex>

 

Last week Suraj Saptoka was in total awarded (including special damages for loss of earnings) the amount of £24,515.42, together with interest, by order of a Deputy High Court judge for false imprisonment in the case of Sapkota v Secretary of State for the Home Department [2017] EWHC 2857 (Admin). Mr Saptoka had been unlawfully detained for 36 days after immigration officials wrongfully decided he was attempting to extend his leave to remain by entering into a bigamous marriage.

 

This massive pay out by the UK BA is not unique. The Secretary of State routinely makes offers to settle where she concedes the unlawfulness of the detention, meaning pure quantum cases often do not reach the courtroom.

 

>>> First Tier Tribunal slapped down for ignoring Immigration Rules in deportation case : <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2017/1782.html</noindex>

 

In Secretary of State for the Home Department v AM (Jamaica) [2017] EWCA Civ 1782 the Court of Appeal found that a First-tier Tribunal decision to allow a Jamaican man’s deportation appeal under Article 8 contained a material error of law and set it aside.

 

In criminal deportation appeals, the court found, the FTT must do more than “simply” engage in a Razgar assessment under Article 8. A finding that deportation would be disproportionate, without considering the substance of paragraphs 398 and 399 of the Immigration Rules, is a material error of law.

 

>>> Strasbourg dismisses compensation claim for not allowing asylum seeker to work : <noindex>http://hudoc.echr.coe.int/eng?i=001-174789</noindex>

 

Daniel Negassi v the United Kingdom (application no. 64337/14) was an appeal to the European Court of Human Rights with a complaint that the Home Office’s failure to grant Mr Negassi permission to work, while waiting for a decision on his asylum claim, was a breach of his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR).

 

The court found Mr Negassi’s complaint to be inadmissible because it could not be said that the applicant suffered a “significant disadvantage” in the sense that the decision not to grant him permission to work led to serious adverse consequences. Mr Negassi, the court stated, had not suffered from any actual prejudice.

 

>>> UK BA Guidance on Fee waiver: Human Rights-Based and other specified applications : <noindex>https://www.google.co.uk/url…</noindex>

 

>>> Dental x-rays in age assessment: art not science : <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2017/446.html</noindex>

 

The Upper Tribunal Judge Rintoul’s elegant, succinct summary of the law on age assessment, with which he opens the determination in R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446, reminds one that pinpointing the age of a young person claiming asylum, other than where there is documentary proof, is an art, not a science. It is a question of fact for decision by the court or tribunal itself, as the Supreme Court explained in R (A) v London Borough of Croydon [2009] UKSC 8.

 

>>> Scottish judge: discrimination based on immigration status unlawful : <noindex>https://www.scotcourts.gov.uk/search-judgments/judgment…</noindex>

 

There are a number of interesting findings in the Court of Session judgment, published today, in DN against Secretary of State for the Home Department [2017] CSOH 144.

 

DN is a Ugandan child who applied for entry clearance to join her mother in the UK. Her mother holds discretionary leave (DL) to remain. DN’s application and subsequent appeal were refused, and her applications for leave to appeal were also refused. The later hearing at the Court of Session established that the discrimination based on the immigration status was unlawful, though.

 

This is a rare and a significant finding of discrimination and it will be interesting to see how (if at all) it will be taken on board by the Secretary of State.

 

>>> The Home Office is entitled to ignore a judge’s decision to grant bail : <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2017/1893.html</noindex>

 

The Court of Appeal has reluctantly agreed that the Home Office has the power to ignore a First-tier Tribunal’s decision to grant bail to an immigration detainee. However, on the particular facts of the case, the decision to refuse consent to bail was deemed unlawful.

 

Despite the impropriety of a departmental civil servant being able to overrule an independent and impartial judge, the Court of Appeal was duty bound to give effect to the clear intention of Parliament. This decision could lead to more regular use of the power to refuse consent by the Home Office, which is deeply concerning.

[British Lawyer]

29 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> The definition of a "current account" in relation to the Bank Account measures under the Immigration Act 2016 (21 November 2017) by the UK BA

 

From the 1st January 2018, the Immigration Act 2016 (the Act) will require banks to perform periodic checks on ‘current accounts’ to ensure that they are not operated by ‘disqualified persons’ (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK). So, what exactly is the definition of the “current account” by the UK BA ?

 

According to the UK BA, the Government is not able to provide legal guidance on the Immigration Act 2016, and this information does not constitute legal guidance. There is no legal definition of a current account, but the Government set out its view of a current account when the Immigration Act 2014 regime was debated in Parliament. On 12 December 2016, Lord Young reiterated this view in relation to the Immigration Act 2016 (Col 15, Vol 777). The UK BA also provids a link to relevant Hansard debate below this.

 

“Not all bank accounts are within scope of the requirement to make an immigration check under the 2016 Act. This instrument specifies that current accounts operated by or for individuals who are acting for the purposes of a trade, business or profession are excluded from the requirement to make an immigration check. In practice this means that firms are required to conduct checks on existing personal current accounts. Firms are not required to extend checks to all existing current accounts such as corporate or business accounts. This ensures that the checks undertaken by banks are appropriately targeted and proportionate. This reflects the Government’s ongoing view that current accounts are the gateway product to other financial services and a settled life in the UK. Such an account would be expected to provide functionality to hold deposits and make withdrawals without having to give notice. It would also typically enable the customer to receive and make payments through a number of different methods, including by cheque, direct debit, standing order, continuous payment authority or other electronic payments. Withdrawals, money transfers and other payment transactions can typically be conducted through various channels including ATMs, branch, online, mobile or telephone banking. Many current accounts also have overdraft facilities.

 

For the purposes of the Immigration Act, “current accounts” should also continue to include “basic bank accounts”. The requirement to make an immigration check does not apply to savings accounts, which in the Government’s view are intended to be opened for the primary purpose of accruing savings and not for day-to-day transactional banking, but which may provide some of the functionality I have just referred to. This also takes into account existing prohibitions in the 2014 Act, which mean that a disqualified person cannot evade the legislation by closing their current account and opening a business account as a sole trader or a charity.

I turn now to notifications. If a firm makes an immigration check on a personal current account and finds a match, the bank is required to notify the Home Office using a secure Home Office portal. To allow the Home Office to confirm the match and instruct on next steps, this instrument requires firms to provide certain information. This includes details of any other accounts that the firm holds for the disqualified person and the balances held in those accounts. Information about regular payments into accounts above a threshold of £200 has been included to allow the Home Office to identify patterns of payments that may constitute evidence of illegal working. The requirement to provide information is limited to what firms hold and can retrieve. It does not require the further investigation of data not held. The Home Office will then confirm the match, based on its data, and instruct the firm on the next steps.”

 

Individuals should also be referred to gov.uk for guidance on what to do if their account is closing because they are in the UK illegally: <noindex>https://www.gov.uk/government/publications/...igration-status</noindex>

 

 

[British Lawyer]

01 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Immigration changes set out in the Industrial Strategy White Paper - Building a Britain Fit for the Future (1 December 2017) : <noindex>https://www.gov.uk/government/publications/...-for-the-future</noindex>

 

The key points relation to immigration are as follows :

 

· "We have doubled the number of available visas in the Tier 1 (Exceptional Talent) route available to those who are already recognised as global leaders or who show considerable promise in their fields. This recognises the importance of supporting those working in the digital technology, science, arts and creative sectors, and ensures that the UK can continue to welcome international talent to work in these key emerging and innovative industries. (p88)

· The government is also changing immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 route to apply for settlement after three years (p88)

· and to make it quicker for highly-skilled students to apply to work in the UK after finishing their degrees. (p89)

· We are relaxing the labour market test to allow UK Research and Innovation and other select organisations to sponsor researchers, making it easier to hire international researchers and members of established research teams. (p89)

· The National Academies are considering how they can encourage top global research talent to come to the UK through the Research and Innovation Talent scheme within Tier 1 of the visa system. (p89)

 

Wider policy comments:

 

Research and innovation are global endeavours and talented and experienced people in these fields are internationally mobile. Businesses have talent scouts around the world to spot opportunities in the most creative clusters, and investment tends to follow talent. The UK has the second largest bilateral flow of scientists and we want the UK to be a magnet for world-class talent. We will increase the number of scientists working in the UK and enable leading scientists from around the world to work here. We will continue to recruit and retain the best talent and ensure the UK remains a world-leader in science and innovation through our Rutherford Fund. (p88)

 

We want to continue to be an attractive destination for the world’s most talented and innovative people and the UK will continue to remain a global, outward looking nation and home to the brightest and best. Our thriving and flexible labour market continues to attract international businesses and investment, enabling businesses to respond and adapt to economic change. To ensure that our labour market remains competitive, the Migration Advisory Committee has recently undertaken a wide-ranging consultation to form a UK-wide view of our skills needs, ensuring our future migration system supports our Industrial Strategy. We will consider the Migration Advisory Committee’s forthcoming conclusions carefully. (p125)"

 

 

[British Lawyer]

04 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

>>> Home Office guidance on EEA public policy/security decisions updated : <noindex>https://www.gov.uk/government/uploads/syste...ecurity-2.0.pdf</noindex>

 

>>> Asylum “lottery”: some hearing centres grant twice as many appeals : <noindex>http://www.bbc.co.uk/news/uk-42153862</noindex>

 

First-tier Tribunal appeals against asylum decisions are twice as likely to succeed at some hearing centres compared to others, a BBC investigation has found.

 

47% of appeals succeeded at Taylor House, whereas the success rate was as low as 21% at Yarl’s Wood and 24% in Belfast. The data comes from Freedom of Information requests covering January 2013 to September 2016 and excluding fast-track cases.

 

>>> Failure to provide evidence of right to work not a fair reason to dismiss, says Employment Appeal Tribunal : <noindex>http://www.bailii.org/uk/cases/UKEAT/2017/0250_16_0510.html</noindex>

 

In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal

 

>>> Proportionality principle no help in EU mother’s income support claim : www.bailii.org/uk/cases/UKUT/AAC/2017/440.pdf

 

LO v SSWP (IS) [2017] UKUT 440 (AAC) involved the overlap between EU law, family law and welfare benefits, focusing particularly on the role of proportionality. All this is academic to LO, who just wanted her income support. Despite compelling personal circumstances, there was no basis on which the tribunal could find a right to reside and make her eligible for that benefit.

 

The decision affirms the existing line of cases in this area, but the idea of proportionality as a liberalising influence may be examined again by the courts.

 

>>> Expert reports in human rights cases must be up to scratch : <noindex>http://www.bailii.org/ew/cases/EWCA/Civ/2017/1871.html</noindex>

 

In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities

 

 

 

[British Lawyer]

06 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph/Viber/WhatApp: 07791145923

 

>>> Paid for the Same Day Service (PSC/PEO) application but submitting the application after the leave (visa) expires ? You are risking a refusal

 

Unless there were expeptional circumstances, under the Para 34 of the Rules the UK BA is likely to refuse the PEO application when such an application lodged even on the following day the leave (visa) expires, despite the application paid for on-line before the visa expired :

 

34G:

 

“For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E) is made is:

…

(iv) where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre”

 

>>> UK Visas and Immigration Guidance - Employer sponsorship: restricted certificate allocations (4 December 2017) : <noindex>https://www.gov.uk/government/publications/...ate-allocations</noindex>

 

A list of restricted certificates allocated each month for employer sponsorship in Tier 2 (General)

 

>>> UK Visas and Immigration guidance: Country returns guide (4 December 2017) : <noindex>https://www.gov.uk/government/publications/...y-returns-guide</noindex>

 

Guidance on returning immigration offenders to their country of origin

 

 

 

[British Lawyer]

07 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923

 

>>> UK BA can revoke ILR without the right of appeal

 

Under the current Rules and, namely, under the Section 76, the UK BA can revoke the ILR (Indefinite Leave to Remain) with no right of appeal. Should that happen, the remedy may the the so-called Judicial Review (JR)

 

 

 

[British Lawyer]

 

Очередные изменения в Иммиграционных Правилах

 

08 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923

 

>>> Statement of changes to Immigration Rules HC 309, 7 December 2017 : <noindex>https://www.gov.uk/government/publications/...7-december-2017</noindex>

 

The purpose of the main changes is to:

 

· Take account of the future commencement of the immigration bail provisions in Schedule 10 to the Immigration Act 2016.

· Provide for entry clearance to be issued electronically.

· Allow standard and marriage/civil partnership visit visa holders to transit using the same visa.

· Clarify and remove inconsistencies from the rules relating to indefinite leave to remain for main applicants and their dependants in work categories.

· Double the number of available places in the Tier 1 (Exceptional Talent) category to 2,000, and allow accelerated settlement for certain applicants.

· Consolidate and clarify the rules for Tier 1 (Entrepreneur) applicants.

· Make new Tier 2 provisions for research positions and for students switching from Tier 4.

 

Into effect from:

 

· The changes to Appendix M set out in paragraph M1., and to Appendix N set out in paragraph N2. of the statement shall take effect on 28 December 2017.

· The changes to Appendix G set out in paragraph G1. of the statement shall take effect on 1 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 1 January 2018, the application will be decided in accordance with the Immigration Rules in force on 31 December 2017.

· The changes to Part 6A set out in paragraphs 6A.22 and 6A.23, to Appendix A set out in paragraphs A16. to A19., and to Appendix J set out in paragraphs J1. to J11. of the statement shall take effect on 11 January 2018. However, if an applicant has made an application for entry clearance or leave to remain using a Certificate of Sponsorship that was assigned to him by his Sponsor before 11 January 2018, the application will be decided in accordance with the rules in force on 10 January 2018.

· The changes to Part 5 set out in paragraphs 5.13 to 5.15 and 5.18 to 5.19, to Part 7 set out in paragraphs 7.3 to 7.5 and 7.7, to Part 8 set out in paragraphs 8.20 and 8.36, and to Appendix Armed Forces set out in paragraph AF2. of the statement shall take effect on the commencement of Schedule 10 to the Immigration Act 2016.

· The other changes set out in the statement shall take effect on 11 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 11 January 2018, the application will be decided in accordance with the Immigration Rules in force on 10 January 2018.