Важные судебные решения и новости для иммигрантов

[British Lawyer]

13 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ Visitor and the Section 3C benefits ?

 

May the Section 3C benefit a visitor who then makes a human rights application before their visa expires? Apparently, yes. The Section 3C may not discriminate between the type of leave as long as the leave was extant at the time of making the application.

 

⦁ What documents a person born in the UK before 1983 to British parents needs to produce to get a passport if that person started living outside of the UK shortly after his birth ?

 

- Photos and documents you must send: <noindex>https://www.gov.uk/apply-first-adult-passpo...s-you-must-send</noindex>

- Also, send your full birth certificate or adoption certificate: <noindex>https://www.gov.uk/register-birth/birth-certificates</noindex>

 

⦁ Can a migrant ask for a refund of the "unused" part of the UK BA IHS fees paid such a migrant then subsequently obtains Settlement (ILR) or switches into another category where another UK BA IHS fee has to paid ?

 

The answer, generally, is "yes": <noindex>https://www.whatdotheyknow.com/request/refu..._on_visa_switch</noindex>

[British Lawyer]

14 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ Can the EEA's national passpprt be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?

 

It used to be possible in the recent past in reliance to the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which statd that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national. Then the Immigration (EEA) Regulations 2016 came into force and under the Regulation 21(5) when one of the applicants in a non-EEA national the EEA national's valid ID msut still be provided:

 

"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."

 

⦁ UK Visas and Immigration Guidance: Returns preparation (12 June 2017) : <noindex>https://www.gov.uk/government/publications/...rns-preparation</noindex>

 

Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.

 

⦁ House of Commons' Library Briefing paper: The Common Travel Area and the special status of Irish nationals in UK law (CBP-7661) (9 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7661

 

The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.

 

⦁ House of Commons' Library Briefing paper: Migrant workers in agriculture (CBP-7987) (12 June 2017) : <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7987</noindex>

 

The agriculture industry warns of post-Brexit labour shortages. This Commons Library briefing looks at the sector's reliance on migrant labour, the Seasonal Agricultural Workers Scheme and the implications of the UK's exit from the EU.

 

⦁ UK Visas and Immigration Guidance - Employer sponsorship: restricted certificate allocations (14 June 2017) : <noindex>https://www.gov.uk/government/publications/...ate-allocations</noindex>

 

This document lists the number of restricted certificates allocated to employer sponsors by month, for foreign workers in Tier 2 (General).

 

It seems that there might be an error in the latest version of the Tiers 2 and 5 sponsor guidance (version 04/17). Para.6.26 of the updated guidance provides as follows:

 

"You must always have a minimum of one level 1 user who is a settled worker. The only exception to this rule is if you are a diplomatic mission or international organisation licensed under the Tier 5 (Temporary Worker) International Agreement sub category."

 

The UK BA has been duly requested to clarify this point.

 

Recent case-law

 

The UK BA's principle of "remove first - appeal later" was found to be unlawful - the case of the R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, 14 June 2017: <noindex>https://www.supremecourt.uk/cases/uksc-2016-0009.html</noindex>

 

The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).

 

Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).

 

Below is a brief summary of the judgement:

 

Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.

Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.

 

The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.

It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.

The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.

 

Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.

 

 

 

[British Lawyer]

16 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ Court of Justice of the EU on Zambrano Children, case note on Chavez-Vilchez and Others by Rights of Women, 12 June 2017

 

Note on legal aid funding

 

Advice and assistance as well as representation in relation to applications for a derivative residence card are not in scope of legal aid. However, and in light of this judgment which has yet to be acknowledged by the Home Office in its guidance, there may in individual cases be grounds to make an application for legal aid (exceptional case funding).

 

⦁ UK Visas and Immigration guidance: Tier 2 and 5 sports governing bodies (15 June 2017) : <noindex>https://www.gov.uk/government/publications/...overning-bodies</noindex>

 

This document lists the contact details for the sports governing bodies which are included in Appendix M of the Immigration Rules.

 

 

[British Lawyer]

19 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ No English language test for those who apply for Settlement after 6 years of the so-called Discretionary Leave (DL) - see page 7 of <noindex>https://www.gov.uk/government/uploads/syste...11/KoLL-v19.pdf</noindex>

 

⦁ Current version of the Knowledge of language and life in the UK can be found here: <noindex>https://www.gov.uk/government/uploads/syste...11/KoLL-v19.pdf</noindex>

 

 

 

 

[fregat222]

Все больше британцев хотят стать гражданами Франции

 

На фоне Brexit в Великобритании количество лиц, которые попросили в 2016 году о гражданстве Франции, возросло.

 

Об этом сообщают мировые СМИ со ссылкой на The Telegraph.

 

Так, в 2015 году с ходатайством о получении гражданства Франции обратились 385 британцев, а в 2016 году число таких лиц увеличилось до 1 363 человека. Данный показатель является рекордным, так как количество претендентов на французское гражданство увеличилось сразу на 254 %.

 

"Количество граждан, которые хотят получить французский паспорт, остается сравнительно невысоким, если учитывать, что в целом во Франции проживают около 400 тыс. британцев", - подчеркнули в издании.

 

Отмечается, что, начиная с января 2017 года, количество желающих получить гражданство Франции стремительно растет. По итогам года ожидается, что число претендентов на получение гражданства Франции значительно увеличится.

 

При этом, в издании подчеркнули, что в Германии количество британцев, желающих получить немецкий паспорт, в прошлом году выросло еще больше - на 361 %.

 

 

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[British Lawyer]

21 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ The Queen’s Speech 2017 : <noindex>https://www.gov.uk/government/topical-event...ens-speech-2017</noindex>

 

Some parts of the Queen's speech may be of interest to migrants, as follows:

 

Some areas that may be of particular interest to ILPA members are described below, including the proposed Immigration Bill and non-legislative measures on migration.

 

Brexit

 

It is proposed that there will be eight Bills to deliver Brexit: a Repeal Bill and separate Bills on immigration, trade, customs, agriculture, fisheries, nuclear safeguards and international sanctions.

 

The Government states that the Repeal Bill will

 

⦁ repeal the European Communities Act 1972 and convert EU law into UK law as the UK leaves the EU;

⦁ create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once the UK has left the EU. It will also allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Article 50;

⦁ replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision-making powers immediately after exit. This will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.

It proposes that an Immigration Bill will be brought forward:

⦁ To allow the Government to repeal EU law on immigration, primarily free movement, that will be saved and converted into UK law by the Repeal Bill.

⦁ To allow the Government to make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.

The Government states that the Customs Bill will ensure:

⦁ that the UK has a standalone UK customs regime on exit;

⦁ flexibility to accommodate future trade agreements with the EU and others;

⦁ that changes can be made to the UK’s VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit.

 

A separate Trade Bill would put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union.

 

Courts Bill

 

The Government proposes a Bill to reform the courts and tribunal system, making better use of technology and modernising working practices. It will include measures to:

 

⦁ end the direct cross examination of domestic violence victims by their alleged perpetrators in the family courts and extending the use of virtual hearings to victims to participate in trials without meeting their alleged assailant face-to-face.

⦁ enable those charged with some less serious criminal offences to opt to plead guilty, accept a conviction and pay a statutory fixed penalty online and free up court time for more serious cases. Defendants would need to actively opt into this process and could still choose to have their case heard in court instead. The reforms will also introduce digital services which will allow businesses to pursue their cases quickly, enabling them to recover debts more easily.

⦁ provide a better working environment for judges by allowing more leadership positions in the judiciary to be offered on a fixed term, and enabling judges to be deployed more flexibly to improve opportunities for career progression.

 

The Government expects to make steady state savings to the taxpayer of £226 million once the reforms to make better use of technology and modernising working practices are implemented.

 

Data Protection Bill

 

The Government proposes to bring forward a new Data Protection Bill to replace the Data Protection 1998. As data protection is a reserved matter, this would apply throughout the UK. The Bill would include measures to:

 

⦁ To establish a new data protection regime for non-law enforcement data processing, replacing the Data Protection Act 1998. The new rules strengthen rights and empower individuals to have more control over their personal data, including a right to be forgotten when individuals no longer want their data to be processed, provided that there are no legitimate grounds for retaining it.

⦁ To modernise and update the regime for data processing by law enforcement agencies. The regime will cover both domestic processing and cross-border transfers of personal data.

⦁ To update the powers and sanctions available to the Information Commissioner.

Domestic Violence and Abuse Bill

⦁ To establish a Domestic Violence and Abuse Commissioner, to stand up for victims and survivors, raise public awareness, monitor the response of statutory agencies and local authorities and hold the justice system to account in tackling domestic abuse.

⦁ To define domestic abuse in law to underpin all other measures in the Bill.

⦁ To create a consolidated new domestic abuse civil prevention and protection order regime.

⦁ To ensure that if abusive behaviour involves a child, then the court can hand down a sentence that reflects the devastating life-long impact that abuse can have on the child.

 

Non-legislative measures (including on migration)

 

The Government has also set out policy approaches and measures that do not involve primary legislation. On migration, it states:

 

⦁ The UK is committed to improving the international response to mass movements of refugees and migrants. We want to embed the principle of ‘first safe country’ to encourage migrants to seek protection in the first safe country they can reach and reduce dangerous secondary movements, which threaten migrants’ lives and open them to exploitation.

⦁ We must strengthen international adherence to legal frameworks that distinguish between refugees and economic migrants, so we can provide proper protection for refugees and reap the economic benefits controlled migration can bring while discouraging abuse of the immigration system. All states should maintain the right to control their borders and accept returns of their nationals when they have no right to remain elsewhere.

 

Other non-legislative measures proposed in the Queen’s speech include:

 

⦁ a review of counter-terrorism legislation;

⦁ the establishment of a statutory Commission for Countering Extremism;

⦁ a public inquiry into the Grenfell Disaster;

⦁ measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests;

⦁ a review of mental health legislation with a view to future reform and changes in implementation, alongside efforts to make mental health provision a priority for the NHS.

 

Next steps

 

The Government’s plans will be debated by both the House of Commons and the House of Lords over the coming days, looking at different subject areas. MPs can table amendments to the speech and the debate concludes with votes on these amendments next week. The Queen’s Speech is voted on by the Commons but rarely in the Lords. As the Government does not have a majority in the House of Commons, it remains to be seen whether the legislative programme will be agreed by parliament as proposed.

 

 

 

[British Lawyer]

23 June 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help

 

⦁ House of Commons' Library briefing paper: International and EU students in higher education in the UK FAQs (CBP-7976) (14 June 2017) : <noindex>http://researchbriefings.parliament.uk/Res...ummary/CBP-7976</noindex>

 

⦁ Can a refugee make a Family Reunion Entry Clearance application without a passport ?

 

Apparently, he/she may, as it is fairly common for those applying under the Family Reunion Route to not have a passport. The applicant needs to request in the his/her cover letter that the Entry Clearance visa be issued on the so-called Uniform Format Form (UFF) as the applicant does not have a passport.

[British Lawyer]

Задержки по заявлениям невест, жен, мужей британских граждан/лиц с ILR (ПМЖ)

 

Обратите внимание, что UK BA начал стандартно задерживать рассмотрение всех заявлений на ПМЖ по категории «невеста, жена, муж» британского гражданина/лица с ILR (ПМЖ), если один из заявителей – ребенок. Это происходит потому, что UK BA проиграли судебное дело (“MM”) и теперь должны изменить соответствующие Правила.

 

На данный момент я столкнулся с задержками в рассмотрении заявления по категории «виза жены британца» уже в 15 недель.

 

Сколько будут продолжаться задержки в таких рассмотрениях – сказать трудно. К сожалению, даже если заявители (например, мама и ребенок) подадут по системе т.н. ускоренного рассмотрения заявления на ПМЖ за 14 дней, это так же не гарантирует быстрое рассмотрение заявления.

[fregat222]

В Великобританию после Brexit придется въезжать по-новому

 

Великобритания введет новые правила въезда в страну после выхода из Европейского союза.

 

Об этом заявила британский премьер-министр Тереза Мэй, сообщают зарубежные СМИ.

 

"Я думаю, что те, кто голосовал за выход Британии из ЕС, голосовали за то, что Британия вне ЕС смогла бы устанавливать собственные миграционные правила. И это то, чем мы намерены заняться", — заявила Мэй.

 

Напомним, ранее Мэй отмечала, что не будет заставлять граждан стран Евросоюза покидать территорию Британии после Brexit, а все спорные вопросы, касающиеся прав граждан стран ЕС, будут решаться британскими судами.

 

 

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[fregat222]

Мэй предложила вид на жительство гражданам ЕС после Brexit

 

Премьер-министр Великобритании Тереза Мэй предложила гражданам Европейского союза вид на жительство в Великобритании после проведения Brexit. С таким заявлением она выступила в ходе встречи с лидерами стран Евросоюза, передает ВВС.

Вид на жительство будет предоставляться тем гражданам, которые прожили на территории Великобритании не менее пяти лет. Благодаря этому статусу, после проведения Brexit граждане ЕС могут беспрепятственно жить в стране и пользоваться государственными услугами образования и здравоохранения, а также социальными льготами.

Единственное, британский премьер не указала, с какого момента будет отсчитываться пятилетний срок пребывания.

Мэй подчеркнула, что ее предложение действует лишь в том случае, если такие же права будут предоставлены британским гражданам, проживающим в других странах ЕС.

В своем обращении премьер-министр отметила, что не желает, чтобы живущие в Британии граждане стран Евросоюза уезжали из Соединенного Королевства. По ее словам, во многих случаях тогда будет идти речь о разделении семей.

По мнению Мэй, ее предложение гарантирует определенность для европейцев, которые уже построили карьеру в Британии, обзавелись семьей и внесли свой вклад в благополучие британского общества.

На данный момент в Великобритании проживает около 3,2 миллионов европейских граждан, а в остальных 27 странах ЕС – 1,2 миллионов британцев.

Как сообщал MIGnews.com.ua, 19 июня, в Брюсселе стартовал первый этап переговоров о выходе Великобритании из состава Европейского союза, во время которого, в частности, обсуждались вопросы прав граждан и финансовые обязательства стран.

 

 

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[British Lawyer]

26 June 2016 - Useful UK & EEA Immigration News from the Legal Centre, www.legalcentre.org Ph: 0330 001 0342

 

⦁ Importance of completing Section 120 on lodging the appeal

 

Often the appellants fail to complete the Section 120 while lodging the appeal. This Section 120 is a very important piece of document and must be well think of, as it allows to bring forward (the last stop, so to speak) any remaining or new facts that the appellant wishes to rely upon. The Secretary of State for the Home Department (SSHD) is oblidged to consider the Section 120 at the point of lodging the appeal by the Appellant. Then, if the appellant fails to complete the Section 120 and later attempts to put forward any other new arguments, information ect, the SSHD is unusally not in a position to consider such information/documents.

 

⦁ Interesting and possible useful decision by the SIJ Ockelton that the child who is not able to get passport form his parents national country is eligible for British passport as stateless. That is, the children from India, as apparently the Indian High Commission refuses to give passport to children of overstayers or who do not have leave to remain in the UK: <noindex>http://www.bailii.org/ew/cases/EWHC/Admin/2017/1365.html</noindex>

 

⦁ Do Irish citizens need to apply for Permanent Residence before they can apply to become British citizens ?

 

Apparently not, on the basis of Schedule 1, 2A(d) of the BNA 1981, meaning they just have to meet the other requirements of residence and good character etc.

 

The Immigration Rule 15 states:

 

15.The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:

(i) those who merely passed through the Republic of Ireland;

(ii)persons requiring visas;

(iii)persons who entered the Republic of Ireland unlawfully;

(iv)persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;

(v)persons who entered the Republic from the United Kingdom and Islands after entering there unlawfully or overstaying their leave.

 

Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens. Ireland is not considered to be a “foreign country” for the purpose of UK laws, and Irish citizens are not considered to be “aliens”. Irish citizens are treated as if they are settled in the UK from the date they take up “ordinary residence” here. s50(1) of the BNA 1981 describes an “alien” as a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. “Foreign country” is also defined as a country other than the United Kingdom, a British overseas territory, a country mentioned in Schedule 3 and the Republic of Ireland;

 

This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, they have more advantageous rights than other EU/EEA nationals in some areas.

 

⦁ Tier 1 (Entrepreneur) applications for Settlement - the applicants may not need to to provide company accounts to prove investments

 

As per the UK BA's reply:

 

Q: Could you confirm that an applicant applying for settlement under the 5 years route Tier 1 (Entrepreneur) does not require to provide company accounts to prove investment as this was provided in the extension application. Appendix A attributes ?

 

Therefore, the only specified documents in relation to the business would be the employees’ documents and evidence that he remains a director of a business.

 

UK BA: This is correct. If this information was already provided during the application for last grant of leave it should not be required again. This is with the usual caveat that we cannot pre-assess any part of an application.

 

 

[British Lawyer]

27 June 2016 - Useful UK & EEA Immigration News from the Legal Centre, www.legalcentre.org Ph: 0330 001 0342

 

⦁ HM Government, The United Kingdom's exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU, 26 June 2017 : <noindex>https://www.gov.uk/government/publications/...onals-in-the-eu</noindex>

 

The Government has published its offer for EU citizens in the UK and UK nationals in the EU on their rights and status after the UK leaves the EU. Its summary proposals are below and the full policy paper is attached at the above link.

 

Summary proposals

 

1) In the Article 50 negotiations for the United Kingdom (UK) leaving the European Union (EU), our first priority is to reach agreement on the post-exit position of EU citizens1 now living in the UK and of UK nationals 2 living in other EU countries. We will put those citizens first, and do all we can to provide reassurance to the EU citizens who have made the UK their home, and likewise for UK nationals who have done the same in countries across the EU.

 

2) EU citizens are valued members of their communities here, and we know that UK nationals abroad are viewed in the same way by their host countries.

 

3) The UK is one of the most tolerant and welcoming places in the world and will remain that way. EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation. The choice made in the Referendum was about our arrangements going forward, not about unravelling previous commitments.

 

4) Over one million UK nationals have moved to other countries in the EU, and many have built their lives there. Their ability to stay, and for life to continue much as it does now, depends on the agreement that is reached between the UK and the EU.

 

5) Our proposals as set out below are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each others’ countries rooted in the Ireland Act 1949. These arrangements reflect the long-standing social and economic ties between the UK and Ireland and pre-date both countries’ membership of the EU. As such, we want to protect the Common Travel Area arrangements, and Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. We have also been clear that our exit will in no way impact on the terms of the Belfast Agreement. We will continue to uphold in that context the rights of the people of Northern Ireland to be able to identify as British or Irish, or both, and to hold citizenship accordingly.

 

6) The Government undertakes to treat EU citizens in the UK according to the principles below, in the expectation that the EU will offer reciprocal treatment for UK nationals resident in its member states:

⦁ until the UK’s exit, while the UK remains a member of the EU, EU citizens resident here will continue to enjoy the rights they have under EU Treaties. We will comply in full with our legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights;

⦁ after we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;

⦁ these rights will apply to all EU citizens equally and we will not treat citizens of one member state differently to those of another;

⦁ qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;

⦁ the application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;

⦁ all qualifying EU citizens will be given adequate time to apply for their new residence status after our exit. There will be no cliff-edge at the point of the UK’s withdrawal from the EU;

⦁ we guarantee that qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship;

⦁ to qualify, the EU citizen must have been resident in the UK before a specified date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident;

⦁ those EU citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status;

⦁ those EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status;

⦁ family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after our exit), irrespective of the specified date. Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;

⦁ the ‘specified date’ will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal; and

⦁ we will apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.

 

7) In relation to benefits, pensions, healthcare, economic and other rights, in the expectation that these rights will be reciprocated by EU member states, the Government intends that:

⦁ EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law;

⦁ EU citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/the self-employed and limited access for those not working). If these individuals go on to acquire settled status, they will then be able to access benefits on the same terms as comparable UK residents;

⦁ existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit;

⦁ the UK will continue to export and uprate the UK State Pension within the EU;

⦁ the UK will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, even where entitlement to these rights may be exercised after exit;

⦁ the UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date;

⦁ the UK will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU;

⦁ the UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK⦁ 3. Such persons will also be eligible to apply for maintenance support on the same basis they do now;

⦁ to help provide certainty for EU students starting courses as we implement the UK’s exit (including those who are not currently living in the UK), we have already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. We will also ensure that these students have a parallel right to remain in the UK to complete their course; and

⦁ the UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).

 

8) The reciprocal agreement on citizens’ rights will apply to the entire United Kingdom, covering Scotland, Wales, Northern Ireland and all parts of England, and Gibraltar. Decisions that are currently made by the devolved administrations and the Government of Gibraltar will continue to be made by them.

 

9) Obtaining documentation showing their settled status will enable EU citizens resident here to carry on living here lawfully. Moreover it will help them to demonstrate to employers and other service providers their ongoing rights to be in the UK and to enjoy entitlements to benefits and public services. It will demonstrate (to employers, for example) that the holder continues to enjoy these rights, irrespective of any different migration controls the Government may introduce with regard to newly arriving EU citizens following the UK’s departure from the EU.

 

10) There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for their new British settled status before our exit. However, we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.

 

11) We will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.

12) After the UK leaves the EU, free movement will end but migration between the UK and the EU will continue. We will continue to welcome the contribution EU citizens bring to our economy and society; the UK will remain a hub for international talent. The Government is carefully considering a range of options as to how EU migration will work for new arrivals post-exit and will publish proposals as soon as possible, allowing businesses and individuals enough time to plan and prepare.

 

 

⦁ Delays in returning original IDs by the UK BA

 

We have noted that beginning May 2017 the UK BA started systematically failing to return the original IDs when the on-line ROD (Return of Documents) form is used within the advertised target 10 days.

 

⦁ Not good enough - the Secretary of State criticized by Court of Appeal for “confused” and “messy” legal analysis in deportation case

 

The Home Office has been criticized by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was concerned; her appeal was accordingly dismissed.

 

⦁ Asylum Policy Instruction - Settlement Protection - No longer "automatic" Settlement for refugees...

 

The UK BA's current settlement policy for refugees (after residing in the UK for a period of 5 years) can be found here: <noindex>https://www.gov.uk/government/uploads/syste...on_v4.0_EXT.pdf</noindex>

 

"All those who apply for Settlement protection (=ILR) after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for Settlement".

 

The policy means Settlement cannot be obtained by simply completing the form and returning the biometric residence permit to the UK BA (as was possible pre-March 2017), detailed information will need to be provided to demonstrate current rist, based on the country background evidence and case-law, in order to avoid cessation (= revocation of a refugee status and removal from the UK).

 

⦁ When refugee is no longer a refugee ?

 

The 1951 Convention relating to the Status of Refugees (‘1951 Convention’) recognizes that Refugee Status ends under certain defined conditions. This means once an individual is determined to be a refugee, their status is maintained unless they fall within the terms of the cessation clauses or their status is cancelled or revoked.

 

Article 1C of the 1951 Convention sets out the circumstances when the Refugee Convention will no longer apply because an individual no longer needs protection. These circumstances occur when:

 

- An individual voluntarily re-availed themselves of the protection of the country of nationality

- Having lost his/her nationality, he/she voluntarily reacquired it

- The acquisition of a new nationality and enjoyment of the protection of the county of new nationality

- He/she can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.

- Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence.

 

 

[British Lawyer]

01 July 2017 - Useful Immigration News from the Immigration Lawyers who can hep - www.legalcentre.org - Ph: 0330 001 0342

 

⦁ Visitor visa may be included in the total time to qualify for Settlement under the 10 year Long Residence Rule

 

⦁ How does the UK immigration law defines "the date of the application" ?

 

The answer is in the Paragraph 34G of the Rules which states:

 

Date an application (or variation of an application) for leave to remain is made

 

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:

 

(i) where the application form is sent by post by Royal Mail, the date of posting as shown on the tracking information provided by Royal Mail or, if not tracked, by the postmark date on the envelope; or

(ii) where the application is made on a paper application form and is submitted in person, the date on which it is received at a Home Office premium service centre; or

(iii) where the paper application form is sent by courier, or other postal services provider, the date on which it is delivered to the Home Office; or

(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.

 

 

 

 

 

 

 

[British Lawyer]

03 July 2017 - Useful Immigration News from the Immigration Lawyers who can hep - www.legalcentre.org - Ph: 0330 001 0342

 

⦁ A Tier 1 (Entrepreneur) main applicant may, subject, to meeting the relevant Rules, apply for Settlement (ILR) in the UK via the accelerated route in 3 years. At the same time, it appears, on the basis of the current Rules, the family members of that Tier 1 (Entrepreneur) may only apply for Settlement in the UK having completed the 5 year period of residence in the UK as dependents of that Tier 1 (Entrepreneur) main applicant

 

⦁ EEA National children born in the UK whose parents obtain Permanent Residence after their birth need to register as British citizens in order to become British citizens

 

⦁ Retained Right of Residence application when the former EEA national spouse refuses to provide evidence of his/her employment

 

We recently had an interesting and successful case, when the client was granted Permanent Residence status in the UK despite his ex-EEA spouse refusing to provide evidence of her employment during the divorce. We used the spouse's public Facebook and LinkedIn posts about her jobs and the UK BA accepted it. Nothing is impossible with the Legal Centre, as we say

 

⦁ Settlement (ILR) applications - does the applicant need to satisfy the same (strict) good character requirements as for British Citizenship?

 

Apparently not, but there are certain suitability requirements in the Immigration Rules

 

 

[fregat222]

Евросоюз запускает единую систему контроля въезда-выезда на своих внешних границах

 

Единая система контроля въезда-выезда начнет работать на внешних границах Евросоюза, соответствующий законопроект получил политическую поддержку Европарламента и Совета ЕС.

Об этом сообщила в понедельник Еврокомиссия, передает Цензор.НЕТ со ссылкой на Интерфакс-Украина.

 

Система, работа над которой велась с апреля прошлого года, будет регистрировать данные о въезде и выезде граждан стран, не входящих в ЕС, при пересечении внешних границ союза.

 

Как отмечается в коммюнике, "это позволит лучше контролировать легальные краткосрочные поездки (граждан третьих стран в ЕС), выявлять незаконно задержавшихся и поможет общей модернизации управления внешними границами ЕС".

 

"Система въезда-выезда вместе с Европейской системой информации и разрешения поездок (ETIAS) будет способствовать усилению контроля внешних границ и внутренней безопасности", - говорится в коммюнике.

 

Это очередной шаг в дальнейшем усилении контроля внешних границ, предпринятый Брюсселем на фоне миграционного кризиса и роста террористической угрозы. Ранее были введены систематический контроль всех, кто пересекает внешнюю границу, в том числе граждан ЕС, начато создание Европейской пограничной и береговой охраны в помощь национальным пограничным службам стран ЕС, границы которых совпадают с внешними рубежами союза.

 

Обсуждение документа продолжится на техническом уровне между Европарламентом и Советом ЕС, прежде чем они совместно примут окончательный текст.

 

 

]]>Источник]]>

[British Lawyer]

04 July 2017 - Useful Immigration News from the Immigration Lawyers who can hep - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923

 

⦁ Upper Tribunal rules it unsafe to return anyone to Libya : <noindex>http://www.bailii.org/uk/cases/UKUT/IAC/2017/263.html</noindex>

 

The violence in Libya has reached such a high level that substantial grounds are shown for believing that a returning civilian would, solely on account of his presence on the territory of that country or region, face a real risk of being subject to a threat to his life or person.

 

This is the country guidance the Upper Tribunal gave in the case of ZMM (Article 15©) Libya CG [2017] UKUT 263 (IAC), overturning the earlier country guidance of AT and Others (Article 15c; risk categories) (CG) [2014] UKUT 318 (IAC).

 

⦁ Home Office, Pre-departure accommodation operating standards, v.1.0, 26 June 2017 : <noindex>https://www.gov.uk/government/publications/...ating-standards</noindex>

 

UK Visas and Immigration has issued new operating standards and guidance on pre-departure accommodation for families reflecting its relocation from Cedars to Tinsley House.

[British Lawyer]

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

 

⦁ A statement has been laid today about leave to remain up to 12 months outside Immigration Rules for residents of Grenfell tower. A community briefing has also been produced for residents, the text of which is which is attached. The statement can be at: <noindex>http://www.parliament.uk/business/publicat...7-07-05/HCWS29/</noindex>

 

⦁ Settlement for an adult relative aged 18 years to join a British citizen in the UK - is it all possible ?

 

Potentially - yes under the Appendix FM - Adult Dependent Relatives. And yet it is worth mentioning that apart from showing that the parties are related as claimed, the Sponsor is a British citizen, finances and accommodation etc, the applicant shall also show for example, the trigger for the so-called medical dependency. The such an applicant needs to satisfy is different. The Applicant will probably only succeed outside the Immigration Rules. For example, adult siblings would need to show something more than normal emotional ties per the Court of Appeal case in "Kugathas".

 

⦁ Changes to Settlement applications in Israel : <noindex>https://uk.tlscontact.com/il/TLV/news.php?id=6291_5497</noindex>

 

"From the 29 May 2017, it will no longer be necessary for customers applying for UK settlement visas to submit their supporting documents during their VAC appointment. Instead, supporting documentation should be sent directly to UKVI in Sheffield, UK by post (full postal address is below). From 29 June 2017, supporting documents will no longer be accepted at Visa Application Centre in Tel Aviv.

 

When to submit the documents

 

You or your representative/sponsor should send all supporting documents within 20 working days of the biometric enrolment for standard fee applications and within 10 working days for Priority Visa Service applications. Please note that any delays in submitting these documents could lead to a delay in the consideration of your application.

 

Where to submit

Please send to the following address:

UKVI

PO Box 3468

Sheffield, UK

S3 8WA"

 

 

[fregat222]

Все сообщения, не соответствующие названию данной темы будут УДАЛЯТЬСЯ без возможности восстановлени

[British Lawyer]

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

 

⦁ Lodged your postal application and now regret as it seem to take months and months ?

 

It not all lost for some type of the applications as one can ask the UK BA to expedie consideration and have certain types of the applications considered withth 5 workings days (at an extra fee, of course): <noindex>https://www.gov.uk/government/publications/...de-request-form</noindex>

 

⦁ Rules on exceptions for overstayers can be found under para 39E : <noindex>https://www.gov.uk/guidance/immigration-rul...-the-uk#pt1stay</noindex>

 

Generally, an overstay up to 14 days may be accepted by the UK BA provided there was a very, very good reason for it

 

⦁ A person whose appeal is pending consideration by the court (and that person has a Section 3D leave at the moment) cannot usually make a fresh application to the UK BA

 

⦁ Can a child stateless by “choice” be registered as a British citizen?

 

Under the British Nationality Act 1981, a child who is born in the UK and is (and always has been) stateless is entitled to register as a British citizen. See Schedule 2, Paragraph 3.

 

In MK (A Child By Her Litigation Friend CAE), R (On the Application Of) v SSHD [2017] EWHC 1365 (Admin) (14 June 2017), the High Court considered whether the definition of ‘stateless’ in this context includes those who do not automatically acquire nationality by the operation of their own national law, but to whom it is open to acquire such nationality by registration or similar process should they chose to do so.

[British Lawyer]

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

 

⦁ The Good Character Requirement for Naturalization (Appendix D) can be found here: <noindex>https://www.gov.uk/government/uploads/syste...Annex_D_v02.pdf</noindex>

 

⦁ Home Office response to a report on the re-inspection of the Tier 4 curtailment process

 

The Home Office response to the Independent Chief Inspector of Borders and Immigration’s re-inspection of the complaints handling process

 

<noindex>https://www.gov.uk/government/publications/...ailment-process</noindex>

 

⦁ Is switching from Tier 2 (General) in to an Ancestry Dependent in-country possible ?

 

Yes. According to para 196A switching from a Tier 2 (General) to an Ancestry Dependent in-country is possible

 

 

[British Lawyer]

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

 

⦁ Useful information note for the EEA national Carer’s Allowance in the UK : <noindex>http://www.airecentre.org/data/files/resou...orkers-2014.pdf</noindex>

 

⦁ £48,000 damages awarded to torture survivor for injuries suffered during deportation attempt : <noindex>http://www.bailii.org/ew/cases/EWHC/QB/2017/1461.html</noindex>

 

Following a seven-day hearing in the High Court, Mr Felix Wamala, a Ugandan national, was awarded £48,000 in damages for the actions of private security guards contracted by the Home Office in seeking to remove him from the UK. This is the case of Wamala v Tascor Services Ltd [2017] EWHC 1461. The judgment is a mammoth one, weighing in at 558 paragraphs plus annexes.

[British Lawyer]

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

 

⦁ How to cancel an outstanding immigration application : <noindex>https://www.gov.uk/cancel-visa</noindex>

 

⦁ Interesting Court of Appeal decision - can a person born in the UK be deported from them UK ? See www.bailii.org/ew/cases/EWCA/Civ/2017/236.html

 

This is an appeal against a decision of the Upper Tribunal dismissing the Appellant's appeal against a decision to deport him to Nigeria. The central feature of the case is that he has lived in the UK since birth and has never been to Nigeria and has no substantial links with that country.

 

⦁ The current SET(M) application form for partners of British citizens/Settled persons (pre July 2012 and post July 2012 applications) can be found here : <noindex>https://www.gov.uk/government/uploads/syste...-form-06-17.pdf</noindex>

 

Note that the financial requirement still has to be met by those applying for Settlement if their partner visas were issued post July 2012 under the Appendix FM ("the new Rules")

 

⦁ The National Health Service (Charges to Overseas Visitors) (Amendment) Regulations 2017 (SI 2017/756), 17 July 2017 and letter from the Lord O’Shaughnessy, Parliamentary Under Secretary of State for Health (Lords) undated but sent 17 July 2017 : <noindex>http://www.legislation.gov.uk/uksi/2017/75...20170756_en.pdf</noindex>

 

Into effect 21 August 2017 and 23 October 2017, with up front payment for services that are not urgent or immediately necessary and extending the range of providers of NHS-funded services who must make and recover charges for relevant services from an “overseas visitor” from 23 October 2017.

 

Amend the National Health Service (Charges to Overseas Visitors) Regulations 2015 (SI 2015/238) which provide for the making and recovery of charges for relevant services provided under the National Health Service Act 2006 to certain persons not ordinarily resident in the United Kingdom. When an NHS foundation trust or an NHS trust determines that a person is an overseas visitor, it must record that fact and whether the person is exempt from charges against that person’s “consistent identifier” (see regulation 2 of the Health and Social Care Act 2012 (Consistent Identifier) Regulations 2015 (SI 2015/1439). Refunds are dealt with.

 

Lord O’Shaughnessy’s letter recalls the government’s December 2016 promise to amend the 2015 regulations ‘at the earliest possible opportunity’ to provide that all asylum seekers whose claims have failed and are supported by the Home Office under any provision of the Immigration and Asylum Act 1999 be exempt from the charge, not just those supported under s 95 or s 4(2) of that Act. His letter explains that the government has reneged on that promise because the support scheme is about to change, and it has decided that it would be better to amend the 2015 regulations when the relevant provisions of the Immigration Act 2016 are commenced ‘to reduce confusion for NHS decision-makers’ (who are no doubt quite confused enough already). No hint is given as to when the support provisions of the Act will come into force. Instead, the only change to regulation 15 effected by these regulations is to make explicit that dependants of persons exempted are exempt. The exemption for persons supported under s 95 is to be retained. There is a promise/warning that at the time when the regulation 15 changes are made, other changes could also be made.

 

EEA applications and intended changes

 

⦁ EEA applications delays

 

The delays are simply due to the amount of people applying, according to the UK BA.To tackle the increased number of applications, the Home Office has recruited more staff. Initially, this area of the department had 390 staff, now around 600, and they are planning to reach about 800. Staff are covering two shifts a day. Additional shifts have also been added, including evenings and weekends. They are planning to acquire more staff accommodation. The Home Office is aware that the process that people go through to get Permanent Residence is cumbersome. It was always a slow process, which has been made slower by the influx of applications.

 

⦁ EEA applications - EEA passports

 

Why are not EEA passports returned when they are sent off as part of a non-EEA family member application ? The response from Home Office is that it is because the passport is seen as a ‘supporting document’, rather than an identify document.

 

⦁ On-line EEA applications forms still have some errors

The guidance needs to make it clear that you only need to prove five years. It is very confusing when someone has had different periods of being kinds of ‘qualified person’ e.g. student, employed, self sufficient. With the online form, you are asked whether you have, for example, ever been a student in the UK. Applicants often tick yes, even when the period of time that they were a student falls outside of the 5 year period they are relying upon to prove their PR

 

⦁ EEA applications on the basis of Domestic Violence when certain information (from the offending party) is missing

 

The Home Office says that in the case of domestic violence, it is practice that the case worker will always check with HMRC for missing information. This agreement is currently in place.

 

⦁ UK BA + HMRC = faster applications for EEA nationals

 

The UK BA and the HMRC are currently piloting an MOU between the two departments which would ultimately result in applications being required to supply significantly less information.

 

The pilot programme is for 10,000 cases per month. This number is not enough to deal with all of the cases that they have currently, but it is enough for a comprehensive test. The UK BA is cautious but optimistic. With 3 million people likely to be applying for some kind of documentation in the next two years, they want to be able to share data easily. Accessing information from HMRC does not generally add too much time to the application processing time.

 

⦁ EEA applications - breaks of residence of breaks of employment ?

 

The UK BA explains that in practice, any break of less than six months is treated as an absence, rather than a break in employment or a period of job seeking. The UK BA intends to claify this aspect in the guidance at some point.

 

⦁ EEA applications and bank statements - does every bank statement's page needs to be stamped ?

 

This is asking too much when some bank statements are very long, and applicants are required to pay their bank for this service. The UK BA says that they will accept statements where only the first page is stamped. The UK BA intends to reflect that in theyr new guidance.

 

⦁ The UK BA is planning to go more digital with the EEA Permanent Residence application and is even planning to include in the EEA application a section where the applicant can list his or her overseas address, implying that the EEA Permanent Residence application which are currently can only be lodged from within the UK, may in the future be lodged from outside of the UK.

 

 

 

 

 

[British Lawyer]

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

 

⦁ Statement of Changes in Immigration Rules HC 290, 20 July 2017 : <noindex>https://www.gov.uk/government/publications/...90-20-july-2017</noindex>

 

Into force 10 August 2017.  Intended to give effect to the judgment of the Supreme Court in MM (Lebanon) [2017] UKSC 10.

 

The Government’s response to the judgment of the Supreme Court judgment in MM (Lebanon) et ors [2017] UKSC 10.

 

Insert new general provisions in Appendix FM (paragraphs GEN.3.1. to 3.3.) which require the decision-maker, in the circumstances specified, to consider whether the minimum income requirement is met if the other sources of income, financial support or funds set out in the new paragraph 21A of Appendix FM-SE are taken into account. The specified circumstances are that the minimum income requirement is not otherwise met and that it is evident from the information provided by the applicant that there are exceptional circumstances which could render refusal of the application a breach of Article 8 because of the ‘unjustifiably harsh’ consequences for the applicant, their partner or a child under the age of 18 years whom it is ‘evident’ would be affected by a decision to refuse the application.

 

Paragraph 21A of Appendix FM makes provision as to the other sources of financial support which the decision-maker will take into account in such cases. These are: a ‘credible’ guarantee of sustainable financial support from a third party; a ‘credible’ prospective earnings from the sustainable employment or self-employment of the applicant or their partner; or any other ‘credible’ and reliable source of income or funds available to the couple. Paragraph 21A also makes provision for to be considered in determining credibility and reliability of the source of funds.

The decision-maker must consider, when an application does not meet the requirements of the rules, whether, on the basis of the information provided by the applicant, there are exceptional circumstances which would render refusal of the application a breach of Article 8 because it would result in ‘unjustifiably harsh’ consequences for the applicant or their family. The Explanatory note asserts that this brings a test already in guidance which was substantially upheld by the Supreme Court in Agyarko & Ikuga [2017] UKSC 11 into the rules. It is further asserted that the rules now provide a complete framework for the Secretary of State’s consideration of an application under Appendix FM on Article 8 grounds. References to leave granted outside the Rules on Article 8 grounds are systematically removed.

 

The changes require the deicison-maker, in considering an application under the new GEN 3.1 to 3.3 provisions, to have regard, as a primary consideration, to the best interests of any child affected by the decision.

 

The changes also provide that grants on the GEN 3.1 to 3.3 bases will put persons on the 10-year route to settlement, with scope to apply to transfer to the five-year route if and when they meet its requirements. Changes are also intended to ensure that a child is granted leave of the same duration and on the same basis as a parent and to ensure that the partner of a refugee or person with humanitarian protection cannot qualify for indefinite leave to remain before the principal does.

There is also a drafting, not intended to be a substantial, change to the English language requirement for partners or parents.

 

In a troubling change in paragraph GEN1.11A, destitution as per s 95 of the Immigration and Asylum Act 1999, or particularly compelling reasons relating to the welfare of child will be required to avoid a 'No recourse to public funds' condition.

[British Lawyer]

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

 

⦁ TPN (FTT appeals – withdrawal) Vietnam [2017] UKUT 00295 (IAC), 21 July 2017

 

NB: It has been always a good idea to explain the reasons for withdrawing the appeal. It now seems that the reasoning for withdrawing of the appeal is becoming obligatory

 

(i) The public law character of appeals to the FTT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinized, per rule 17 of the FTT Rules and rule 17 of the Upper Tribunal Rules.

(ii) Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.

(iii) Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.

(iv) Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.

(v) The outcome of the judicial scrutiny should be briefly reasoned.

(vi) Rule 29 of the FTT Rules is confined to the substantive determination of appeals.

(vii) The power of the FTT to set aside a decision under Rule 32 is exercisable only by the FTT President and the Resident Judges.

(viii) In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FTT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.

 

 

 

[British Lawyer]

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

 

⦁ We have recently noted that the UK BA started E-mailing Naturalization Ceremony Invitations letters in case the original letter has gone missing in the post

 

⦁ The Home Office is still applying Jame’s Brokenshire’s comments of 2015 as regards individuals recognized as refugees not being refused naturalization on the grounds of bad character as a consequence of entering the UK illegally. See paragraph 9.7 of Annex D of the Nationality Instructions: <noindex>https://www.gov.uk/government/uploads/syste...Annex_D_v02.pdf</noindex>

 

⦁ Warning. Potentially misleading (!) information from the UK BA : <noindex>https://www.gov.uk/eea-registration-certifi...anent-residence</noindex>

 

"If you already have a permanent residence document it won’t be valid after the UK leaves the EU."

 

It is expected that this "statement" about the "invalidity" of the EEA Permanent residence cards will be soon duly amended by the UK BA. It is very strange that this information has been published by the government without due consideration of the consequences !

 

⦁ No right of appeal ? Appeal !

 

The UK BA (SSHD, formally), may wrongly assume that the applicant does not, in some cases, have the right of appeal. The Court of Appeal case of Saqib Zia Khan v SSHD (2017) EWCA Civ 424 suggest that although counter-intuitive for an applicant who has been told that he/she could not appeal, this case suggests the correct way forward is precisely to appeal to the First Tier Tribunal. The First Tier Tribunal will then need to decide: 1) whether the SSHD was wrong to deny the applicant a right of appeal and, if finding that it was, 2) whether the SSHD was wrong to refuse the application itself.