Важные судебные решения и новости для иммигрантов

[British Lawyer]

24 July 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> High Court allows Home Office to ignore tribunal bail decision: https://www.bailii.org/ew/cases/EWHC/Admin/2019/1969.html

The High Court has ruled that the Home Office can ignore a grant of immigration bail by the First-tier Tribunal if there is a material change of circumstances before the person is released. R (AB) v Secretary of State for the Home Department [2019] EWHC 1969 (Admin) is about the familiar situation where someone is granted conditional bail while accommodation is arranged, but during the wait for housing there is an important change in circumstances. Can the Home Office lawfully ignore the tribunal’s decision to grant bail?

Unfortunately, the High Court says that this is exactly what the Home Office is allowed to do.

[British Lawyer]

25 July 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI update: proposed Regulations amending the 2016 EEA Regulations - Immigration (European Economic Area) (Amendment) Regulations 2019: http://www.legislation.gov.uk/uksi/2019/1155/contents/made

Citation and commencement

These Regulations may be cited as the Immigration (European Economic Area) (Amendment) Regulations 2019 and come into force on 15th August 2019.

>>> Migration Advisory Committee review of the Shortage Occupation List

On 29 May, the Migration Advisory Committee (MAC) published the outcome of its full review of the Shortage Occupation List (SOL). I am very grateful to the MAC for a very thorough and comprehensive piece of work. The MAC recommended a number of changes to the main UK-wide SOL, expanding the list to cover a range of high-skilled occupations, including a number of health and social care, engineering and digital technology occupations.

The Government is happy to accept all of the MAC’s recommendations on the composition of the SOL and the necessary amendments will be made in the Autumn Immigration Rules changes.

The MAC also suggested that, in order to combat the particular challenges faced by some remote communities, the Government should pilot a scheme that facilitated migration to these areas. The Government accepts that this is an idea worth pursuing. Further details will be given in due course.

>>> UKVI Policy Paper: The UK's future skills-based immigration system: advisory group membership: https://www.gov.uk/government/publications/the-uks-future-skills-based-immigration-system-advisory-group-membership?utm_source=1eaa2a4f-3423-4dc8-89a0-8a2743c9e17a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

>>> Win a deportation appeal? You can still be deported, Court of Appeal holds: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1252.html

If a foreign criminal wins their deportation appeal, can the Home Office try and deport them again, even where there has been no further offending?

In MA (Pakistan) v Secretary of State for the Home Department [2019] EWCA Civ 1252, the Court of Appeal considered this question and held that the answer is yes.

>>> UKVI guidance: British citizenship: automatic acquisition guidance updated: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjgmKLcoNDjAhUHV8AKHb4CAhAQFjAAegQIARAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F820363%2Fbritish-citizenship-automatic-acquisition-v3.0-ext.pdf&usg=AOvVaw0V9Rt4tISHFBACzMGDjScM

>>> UKVI Collection: Landlords: immigration right to rent checks: https://www.gov.uk/government/collections/landlords-immigration-right-to-rent-checks?utm_source=c2e572be-18b1-4a32-a9ca-959cd1f440ce&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

A collection of guidance to help landlords, homeowners and letting agents carry out correct right to rent checks and avoid civil penalties.

[British Lawyer]

26 July 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI Collection: Family of people settled or coming to settle (modernised guidance): https://www.gov.uk/government/collections/family-of-people-settled-or-coming-to-settle-modernised-guidance?utm_source=d1309805-a457-439c-9c0b-59638f01d96c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

This collection brings together the modernized guidance used by UK Visas and Immigration about migrants who are family members of UK residents.

>>> UKVI Guidance: Family life (as a partner or parent): private life and exceptional circumstance: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance?utm_source=329baf9a-6346-4dc4-8912-f6976b79a98c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

How UK Visas and Immigration staff consider claims on the basis of family life, private life, or exceptional circumstances.

>>> UKVI Guidance: new modernised guidance on dependants of part 5 migrants: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiKp9PjpNLjAhVDY8AKHfYTBr0QFjAAegQIAxAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F820619%2Fdependants-of-part-5-migrants-v4.0ext.pdf&usg=AOvVaw0yOETfcB0bQ_L1HR8PZK86

This guidance tells caseworkers how to process applications for entry clearance, leave to remain and indefinite leave to remain in the UK as the child or partner of a migrant with leave to enter or remain under part 5, paragraphs 128 to 193 (excluding 135I to 135K) of the Immigration Rules.

[British Lawyer]

27 July 2019

 

Helpful and just interesting updates on the UK and EEA immigration law from the Legal Centre, who can help you with any immigration issue. www.legalcentre.org Mob/WhatsApp/Viber: +44(0)7791145923, Office: +44(0)3300010342

 

>>> Attracting the “brightest and the best”: the UK’s record on visas for academics and researchers

 

This autumn will see a decided shift in immigration policy toward being more welcoming to non-EU academics, scientists and researchers; a group commonly defined by the somewhat worn-out phrase, “the brightest and the best”, first coined by David Cameron in October 2011.

 

The upcoming rule changes will see the removal of PhD level jobs (as defined by the PhD level SOC Codes in Appendix J) from the Tier 2 visa quota. There will also be a new exemption within the settlement rules on excessive absences from the UK, where the person’s absences are due to “overseas research activity”.

 

Specific visa routes for academia

 

The academic and research sector is fortunate to have access to specific visa routes.

 

The flagship Tier 1 (Exceptional Talent) route was created in 2011 and continuously reformed due to low initial uptake. Significantly, changes in January 2018 provided automatic endorsements for non-EU citizens appointed to senior positions at a UK university or research institute. As these led to, essentially, a guaranteed Exceptional Talent visa, this was a clear recognition of the value of these roles to the UK.

 

Another visa route designed specifically for the academic and research community is the Tier 5 (Government Authorised Exchange) route, through which universities and research institutes can sponsor academics and researchers to undertake short-term collaborations. In July 2018, the route was reformed and expanded: these institutions can now host any type of short-term engagement with a non-EU academic or researcher in a manner that other employment sectors would struggle to accommodate.

 

Carve-outs for universities within immigration routes

 

In parallel with these specific visa routes, there are a number of carve-outs and exceptions within the other visa routes which facilitate highly skilled researchers.

 

The Tier 2 route contains a number of exceptions for PhD level roles, including:

 

• the ability to recruit the best person for the job regardless of nationality

• a Resident Labour Market Test waiver for ‘supernumerary researchers’

• rules allowing Tier 4 students an easier transition into work (under the deliciously byzantine paragraph 245ZY(c)(iii)(7) of Part 6B of the Rules)

• greater weighting for PhD level roles within the Tier 2 quota

• an exemption from the ILR minimum salary rate, amongst other benefits.

 

The Migration Advisory Committee’s recent recommendations on the Shortage Occupation List, signed off by the Home Office this week, mean that all biological scientist and biochemist roles (SOC Code 2112), and archaeologists under Code 2114 now get priority within Tier 2.

 

The visitor visa route also contains carve-outs, namely to allow highly skilled individuals to visit and gather information and facts, or share knowledge/advise on an international project that is being led from the UK. Academics can use the route to carry out research for their own purposes, and senior doctors or dentists can take part in research, teaching or clinical practice. The permitted paid engagement visitor route facilitates one-month paid engagements of academics to examine students and/or to deliver a series of lectures.

 

Visa problems for the best and brightest

 

Cost remains a significant burden. A recent report by The Royal Society highlights that the current UK visa arrangements are amongst the most expensive in the world. Therefore, the immigration experts like the Legal Centre (www.legalcentre.org) can certainly help, and it is worth considering an initial confidential online consultation with the Legal Centre, which can be booked 24/7 via https://legalcentre.org/Initial-Consultation.html

 

The cost of visas for skilled workers and students coming to the UK, compared with the visa systems of other leading science nations, is a whopping 540% higher. The Royal Society calls for a reduction in visa costs to fall in line with the average.

 

Administration of the current Tier 2 system is also a sizable burden for the sector. A recent report by EY, commissioned by the Russell Group, established that the 24 Russell Group universities currently spend around £25 million a year on immigration processes and compliance to recruit and support non-EU staff and students, with an estimated increase of 36% to £34m by 2022. These costs would reach dizzying heights were they to be extrapolated across all employers within the research sector. The white paper’s ambition to reduce sponsorship burden under any new system will certainly be welcomed.

 

Visa refusals are also an issue, most recently concerning visit visas. There have been several high profile cases of visiting academics and researchers being refused visas, with questions also raised in Parliament. There is ongoing lobbying on this issue from the research sector.

 

Better brain circulation

 

To what extent will the proposed autumn rule changes impact on the UK’s attractiveness for the “brightest and the best”? Significantly, in my view.

 

Firstly, the removal of PhD level roles from the Tier 2 quota, whilst partly symbolic given that no PhD level roles have ever been refused under the cap due to preferential points-weighting, will reduce recruitment time frames on the ground, circumventing the need for monthly pre-approval. This does, unequivocally, send a global message that the UK is committed to supporting the easy movement of highly skilled individuals.

 

Secondly, the planned exemption for PhD level roles within the absence rules for settlement is very welcome. It is an issue that the sector has lobbied on for years, due to previous high profile settlement refusals for academics and scientists who breached the absence requirements. Whilst refusals are not common, the rules mean highly skilled individuals having to choose which overseas collaborations they can attend and which they cannot for risk of breaching the absence rules.

 

[British Lawyer]

30 July 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> English language ability and financial independence no help in human rights appeals: https://www.bailii.org/ew/cases/EWCA/Civ/2018/3069.html

SC (Bangladesh) v Secretary of State for the Home Department [2018] EWCA Civ 3069. The issue was whether the public interest considerations in sections 117B(2) and (3) of the Nationality, Immigration and Asylum Act 2002 (as amended) can be treated as positive factors.

When someone without a visa is applying to stay in the UK because of family or personal ties, judges are told by law to hold it against them if they don’t speak English and aren’t financially independent. For a while there was an argument about whether that test was only negative: if a person has perfect English and loads of money, did that actively count in their favour?

That was settled by the Supreme Court in Rhuppiah [2018] UKSC 58. Where a person is financially independent and can speak English, these do not become presumptions in their favour — they just don’t have marks deducted, as it were.
In SC (Bangladesh), the Court of Appeal basically just confirms this: “it is now established that section 117B(2) and (3) do not require the Tribunal to take into account fluency in English and financial independence as factors in Article 8 appellant’s favour”.

That is it ©

 

[British Lawyer]

31 July 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Applying for a PBS visa as a dependent ? You may not need to show your maintenance in CERTAIN circumstances

This is the extract from the PBS Dependents Policy Guidance:

Para 83

If you apply separately from the main applicant you will need to have the necessary funds to meet the maintenance requirement or have a written undertaking from an A-rated Sponsor, unless the main applicant already had leave in a Tier 2 category and when applying for their most recent period of Tier 2 leave was not required to show evidence of satisfying maintenance requirements.

In other words, as an example, if the main applicant was a Tier 2 migrant and extended their leave in Tier 2 then they would not need the employer to certify maintenance as they would not need to evidence maintenance in any event. And in those circumstances neither does the dependent.

>>> Refugee status can be taken away even if threat of persecution still looms: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1345.html

In Secretary of State for the Home Department v MS (Somalia) [2019] EWCA Civ 1345, the Court of Appeal has held that the Home Office can cease refugee status where there has been a change of circumstances in the refugee’s country of origin such that it is possible for them to internally relocate to avoid persecution.

>>> Immigration detainees must be given the “true reason” for their detention: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2070.html

A real mammoth of a case: R (HS) v Secretary of State for the Home Department [2019] EWHC 2070 (Admin). The claimant took what looks like a kitchen sink approach to his unlawful detention claim, succeeding on the fourth ground: that he wasn’t given the “true reason” for his arrest and detention.

The problem was that officials did not inform him that this was the reason behind his re-detention, instead merely ticking several boxes on the IS.91R form to indicate generic reasons such as “character, conduct or associations”.

According to Home Office detention guidance, officials must prepare a “properly evidenced and fully justified explanation” of the reasons to detain, for internal use. It seems a little unfair to give detainees only the barest of facts when a proper explanation is on file anyway.

[British Lawyer]

01 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI Guidance: Guidance on application for UK visa as Tier 2 worker: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjm-fWysOHjAhUZSxUIHZtTDIwQFjAAegQIABAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F791035%2FTier_2_Policy_Guidance_03_2019.pdf&usg=AOvVaw1pzmfO0ulnseUegreQtDnF

Guidance to apply to come to the UK as a Tier 2 skilled worker or to extend your stay.

Change made - Guidance document updated.

Addendum – Changes to appropriate rates (Appendix J)

>>> Can I collect my biometric residence permit from a different Post Office branch to one in my decision letter?

See https://www.gov.uk/government/publications/biometric-residence-permits-overseas-applicant-and-sponsor-information

“Yes. If you, or a nominated third party authorised by the Home Office to collect your BRP on your behalf, wishes to collect your BRP from a different branch to the one in your decision letter, you or they should go to the Post Office branch from which you would like to collect the permit and speak to a Post Office employee.

The Post Office will charge a fee for each and every permit you wish to re-direct between branches. Not all branches offer the collection service. Details of Post Office locations offering the service and their opening times can be found at their website.

If you are part of a family group that has travelled to the UK together, a family member can arrange for all the biometric residence permits belonging to that family group to be re-directed to a new Post Office branch for collection. The family member requesting re-direction must present the travel documents (and vignettes) of everyone whose biometric residence permit they wish to re-direct. They will also need to present these when collecting the biometric residence permits.”

>>> Senior judges despair of “Byzantine” immigration laws: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1310.html

Always a worry (but never a surprise) when Court of Appeal judges start off a judgment by saying that the case “has a tortuous procedural history”, is “highly technical” and involves “Byzantine… provisions” of immigration law. Firdaws v Secretary of State for the Home Department [2019] EWCA Civ 1310 is the latest in a long line of cases where senior judges have deprecated the complexity and obscurity of the UK immigration system.

The core issue was whether Mr Firdaws had a right of appeal against a refusal of a human rights claim made after his leave had expired. The Home Office’s position was that Mr Firdaws did not have a right of appeal before 6 April 2015 because the decision to refuse him was not an “immigration decision” under the old version of section 82(2)(d) of the Nationality, Immigration and Asylum Act 2002. Under the old version of section 82, a refusal to grant someone leave to remain when they were already here without leave was not a decision which could be appealed to the tribunal.

This all changed when the Immigration Act 2014 came in. It allowed appeals against refusals of human rights claim regardless of whether the person was here lawfully or not.
This change didn’t happen overnight, though. It came in phases through four commencement orders between July 2014 and April 2015.

It was the wording of the third and fourth orders which caused the problems. Mr Firdaws argued that they omitted to restrict the right of appeal in his particular circumstances, relying on a close reading of the text of the interlocking statutory.

The final paragraph of the judgment reflects the sad reality of how broken our immigration system has become and how desperately wholesale reform is needed:

“I cannot conclude without commenting, not for the first time, on the extreme complexity and obscurity of drafting in the field of immigration law, as exemplified by these Commencement Orders. Such drafting as this serves to conceal rather than reveal meaning. It confuses even the expert legally qualified reader, never mind those affected by the provisions. In this instance, the drafting has produced a perverse result. Such an approach is firmly to be deprecated.”.

It is embarrassing yet in some cases the practitioners have to regularly say to clients that there is no clear answer to their situation and they essentially need to take a gamble on something as important as their immigration status.
To some extent, progress has been made with the Law Commission finally stepping in and producing a consultation paper on simplification of the Immigration Rules earlier this year. The stark reality, though, is that any reform is likely to take years.

>>> British-Iranian solicitor Seema Kennedy made immigration minister: https://twitter.com/DannyShawBBC/status/1156514008918347776

Seema Kennedy is the new immigration minister at the Home Office, the BBC’s Danny Shaw reports. The MP for South Ribble, who had been a junior minister at the Department of Health, replaces the sacked Caroline Nokes.

[British Lawyer]

02 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> UKVI Guidance: Correcting an incorrect endorsement: https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19/correcting-an-incorrect-endorsement-ecb19

Information and guidance on handling visa applications made outside the UK. Added information for applicants who have discovered an error in their visa before they arrive in the UK.

>>> New Home Office policy on removing migrants with children: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance

The Home Office has updated its main guidance on family visas under Appendix FM of the Immigration Rules. The good news is now we have one consolidated guidance document dealing with both the five and ten-year routes for partners, parents and private life applicants. The new guidance runs to 93 pages whereas the previous guidance for ten-year route applications was 104 pages alone.

The other big clear-up is around the section dealing with applications under EX.1(a) of Appendix FM, which is about whether it is reasonable to expect a child to leave the UK with parents who have no right to remain here. This has always been quite a thorny issue and previous guidance has gone both ways. Versions before the Supreme Court’s decision in KO (Nigeria) [2018] UKSC 53 said that leave to remain should normally be given to parents of qualifying children, whereas post-KO (Nigeria) versions have had a more nuanced approach and still re-fer to the conduct of parents and their immigration status as being indirectly relevant. The new guidance is still a little con-fused in this respect and prefers the latter approach.

However, gone are the parts of the guidance which said that if a child is not expected to leave the UK, then paragraph EX.1(a) does not apply. The new guidance makes clear that:

“In accordance with the findings in the case of AB Jamaica (Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661), consideration of whether it is reasonable to expect a child to leave the UK must be undertaken regardless of whether the child is actually expected to leave the UK.”.

One can find that even where a parent’s immigration status is pretty poor, the Home Office seems to be granting leave to remain to qualifying children under the ten-year route, as used to be the case before KO (Nigeria) muddied the waters. One wonders if this change in policy is likely to encourage caseworkers to be bolder and to refuse these types of application more often.

Whilst the guidance has incorporated this change, it has overlooked or confused some of the other conclusions from AB (Jamaica). The document still has a noticeable bias against applicants who don’t have direct contact with their children. In these cases, the guidance says that it is “likely… that a relationship will not be sufficient to engage Article 8”.

On the contrary, what the Court of Appeal actually said was:

“… it is by no means inevitable that a tribunal will conclude that a parent has no “genuine and substantial parental relationship” absent direct contact.

The way the Home Office has worded this is likely to infect decision-makers’ reasoning and steer them more towards refusing such an application.”

[British Lawyer]

05 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> I have a fiancé(i) visa. I am now married. Can I go for a honeymoon now ?

The answer is “Yes”, in line with the https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members:

“A spouse or civil partner can re-enter the UK following a honeymoon abroad during the remaining validity of their entry clearance as a fiancé, fiancée or proposed civil partner if they can satisfy the Immigration Officer, in the light of the change in their marital or civil partnership status (which they should evidence with a copy of the marriage or civil partnership certificate), of their intention, within the remaining validity of that entry clearance, to regularise their status in the UK as a spouse or civil partner.

Any period of entry clearance or limited leave as a fiancé, fiancée or proposed civil partner does not count towards the continuous period of leave as a partner required for settlement.”

>>> Domestic violence – can the victim (applicant) still reside in the matrimonial house or not ?

The answer is “may be”.

Page 20 of “Victims of domestic violence and abuse” Policy Guidance (Version 14.0):

“The fact the couple are still living at the same address when the application is made may not necessarily be taken as an indicator the relationship has not broken down, as this could be due to a number of reasons.”

The following case-law may also be of use: https://www.bailii.org/uk/cases/UKIAT/2009/00019.html

>>> UKVI Guidance: Family Policy: Partners, divorce and dissolution published: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=9&cad=rja&uact=8&ved=2ahUKEwi65ZbOsuvjAhUlxYUKHV62BjYQFjAIegQIARAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F804738%2FPartner_divorce_and_dissolution_guidance_v.1.0ext.pdf&usg=AOvVaw20FDtpFZjYNs3P241OKVqw

How UK Visas and Immigration staff recognise a genuine and subsisting relationship and identify a valid divorce or dissolution of a civil partnership.

>>> UKVI Guidance: Guidance on applications for UK Tier 4 student visas updated: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiuq4nwsuvjAhUMThoKHUP-BUIQFjAAegQIAxAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F812143%2FT4_Migrant_Guidance_JUNE_2019_FINAL_v3.pdf&usg=AOvVaw3XoVLslrZqeY-hgq9ep9XO

Guidance on UK Visas and Immigration’s policy for Tier 4 (General) Student and Tier 4 (Child) Student applications to stay or come to the UK updated.

[British Lawyer]

06 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

>>> Applications from overstayers (non family routes): https://www.gov.uk/…/applications-from-overstayers-non-fami…

Guidance for how UK Visas and Immigration considers applications for further leave to remain made by applicants without valid leave.

>>> UKVI update: Immigration Rules archive: 6 July 2019 to 31 July 2019: https://www.gov.uk/…/immigration-rules-archive-6-july-2019-…

>>> DNA evidence proves Home Office wrong about Calais child: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1340.html

A new Court of Appeal judgment has confirmed that the Home Office wrongly denied that a child asylum seeker seeking transfer to the UK had a brother already living in this country.

The Home Office, as is its wont, claimed that the two young men were not related. The Up-per Tribunal decision in this case explains, at the start officials dismissed the idea of verifying the relationship using DNA evidence and then decided that undertaking a DNA test in France was not possible anyway. Fortunately, the Upper Tribunal found that the boy and his brother were related even without any DNA evidence and therefore the Home Office had to take charge of the boy’s asylum claim in the UK.

The new judgment in MS (A child) v Secretary of State for the Home Department [2019] EWCA Civ 1340 records that once the boy arrived in the UK. a DNA test proved that his claim had been true all along.

[British Lawyer]

07 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923

 

>>> National Savings Premium Bonds in an FM application – the Home Office’s clarification and… apology

 

One may not come to see the apology from the Home Office.

 

Here we go:

 

From the Home Office:

 

“Our current policy in relation to premium bonds is as follows:

 

Premium bond holdings cannot be counted in themselves towards meeting the minimum income threshold. Owning a capital asset such as a bond, does not in itself provide the means to support a spouse or partner. However, any income received from the asset, or the cash savings derived from its liquidation, can be counted towards meeting the minimum income threshold. A couple’s income and cash savings are the most reliable and practicable indicator of their financial status and independence for the purposes of this requirement.

 

The individual may choose to rely on cash savings above £16,000 (the level of savings at which a person would generally not qualify for income-related benefits) held by the sponsor, the applicant or jointly for at least six months at the date of application, or derived from the liquidation of assets and transfer of funds from stocks, shares or bonds or sale of assets such as a property within that six-month period, to be used in place of or in addition to income to meet the minimum income threshold. If the premium bonds are liquidated and the money transferred into a personal bank or savings account in the sponsor’s or their spouse or partner’s name or them jointly, their value held as cash savings can be counted towards the minimum income threshold, provided evidence shows the sponsors ownership of the bonds for the balance of the period of six months prior to the date of application. It is the cash held in a personal or savings account which must be accessible immediately. Full details of the ways in which the minimum income requirement may be met can be found on GOV.UK by searching for Appendix FM 1.7 Financial Requirement here: www.homeoffice.gov.uk.

 

Therefore, our previous guidance was not quite correct and we apologise for the confusion. Money received from liquidated premium bonds can be used providing they have been deposited in an account and there is evidence that the bonds have been in the applicant’s possession for the 6 months prior to their application. Therefore the bonds have to be deposited within that 6 months. The same rules will also apply for fixed term bank savings bonds.”

 

>>> Student who innocently relied on fake certificate of sponsorship refused visa for producing “false document”: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1324.html

 

The ground of appeal in Hameed v Secretary of State for the Home Department [2019] EWCA Civ 1324 was:

 

"It was wrong to find the appellant had made a false representation under paragraph 322(1A) of the Immigration Rules when he had not acted dishonestly."

 

Mr Hameed had applied for a student visa using a certificate of sponsorship (CoS) that was, unknown to him, not genuine. The Home Office accordingly refused his application on the basis of paragraph 322(1A). It reads:

 

“where false representations have been made or false documents or information have been submitted (whether or not material to the application, and whether or not to the applicant’s knowledge), or material facts have not been disclosed, in relation to the application or in order to obtain documents from the Secretary of State or a third party required in support of the application.”

 

Counsel for Mr Hameed took a close look at this wording and argued that he had not fallen foul of it. A certificate of sponsorship is a digitally generated number and so is not a “document”. Mr Hameed may have made a “representation” by submitting the certificate of sponsorship with his visa application, but it was not “false”, in the sense that he genuinely believed that it was valid. Any dishonesty was on the part of whoever passed him the fake certificate.

The Court of Appeal disagreed with the premise. It said that this was, in fact, a “false document” case: the certificate of sponsorship had been printed out and submitted in hard copy. Even if it hadn’t been printed out, Sir Ernest Ryder held that “a document can be a virtual or online document… a sensible reading of ‘document’ in paragraph 322(1A) includes online documents like a CoS”.

 

Since this was a false document case, there was no need for the Home Office to establish dishonesty or deception: Adedoyin v Secretary of State for the Home Department [2010] EWCA Civ 773. In that case, the Court of Appeal held:

Of course it is possible for a person to make use of a false document… in total ignorance of its falsity and in perfect honesty. But the document itself is dishonest. It is highly likely therefore that where an applicant uses in all innocence a false document for the purposes of obtaining entry clearance, or leave to enter or to remain, it is because some other party, it might be a parent, or sponsor, or agent, has dishonestly promoted the use of the document. The response of a requirement of mandatory refusal is entirely understandable in such a situation.

 

As so often in such cases, the result is hard luck on Mr Hameed, whom the court accepted was as much a victim in all this as anyone.

 

>>> UKVI update: EU Settlement Scheme: person with a Zambrano right to reside: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=2ahUKEwjKz4CE7O7jAhVKBGMBHUqrDv0QFjABegQICxAF&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F823680%2Feuss-zambrano-guidance-v1.0-ext.pdf&usg=AOvVaw1S_zzRN8E7Lu4zFjkpdKch

 

Guidance for caseworkers considering applications under the EU Settlement Scheme.

 

Change made - added guidance on persons with a Zambrano right to reside.

 

Readers will, in particular, want to note pages 18 and 19 and especially the following excerpt:

 

"This means that an applicant cannot be considered a ‘person with a Zambrano right to reside’ if they:

 

• have (or for the relevant qualifying period had) leave to enter or remain in the UK (unless this was granted under Appendix EU)

• have never made an application under Appendix FM to the Immigration Rules or any other Article 8 ECHR claim, where there is (or was) a realistic prospect that this would succeed (or would have succeeded)

• have been refused leave under Appendix FM or otherwise under ECHR Article 8 but their circumstances have changed since that decision was made such that there is now a realistic prospect that a further such application would succeed - for example, the applicant applied on the basis of their relationship with a British citizen spouse, but the couple now have a British citizen child"

 

>>> UKVI update: Sponsor guidance appendix D: keeping records for sponsorship: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiHtc7D7O7jAhWJAWMBHc6BB_AQFjAAegQIABAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F819229%2F2019-07-19_Tier-2-5-sponsor-guidance_Mar-2019_v1.0_with_addendum.pdf&usg=AOvVaw2J3sVxfzu5o2_myCdVE3Su

 

Guide to the sponsorship documents that businesses and educational institutions must keep.

 

Change made - the guidance has been placed into a new template and revised throughout.

 

Please note the following excerpt indicating the changes that have been made:

 

"The guidance has been placed into a new template and revised, including:

 

• clarifying the time period for which documents must be retained

• updating the guidance on checking the date of entry when the migrant entered through automated ePassport gates (‘eGates’)

• adding information on the Tier 5 creative and sporting visa concession

• clarifying documentation that must be retained as evidence of carrying out a resident labour market test

• replacing reference to ‘Tier 1 (Entrepreneur)’ with ‘Start-up’

• other minor clarifications, corrections and housekeeping changes"

 

[British Lawyer]

08 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Change in law for European families offers temporary hope for unrecognised adoptions: https://www.bailii.org/uk/cases/UKSC/2018/9.html

A small amendment to UK law could soon make a big difference to European families resident here who are struggling to bring home children adopted in Muslim countries abroad.

A change to the legal definition of who counts as an EEA citizen’s “family member” should end the uncertainty over the status of children in kafala arrangements. Kafala is a system of permanent legal guardianship operating in many Muslim countries, where full adoption is usually prohibited.
While some families here view the arrangement as permanent, others consider it a stepping stone to full adoption in the UK, as kafala is sometimes the only way to gain legal custody of a child in his or her birth country.  

The amendment to the Immigration (European Economic Area) Regulations 2016, which takes effect on 15 August 2019, explicitly recognises relationships where the child is under 18 and “is subject to a non-adoptive legal guardianship order in favour of an EEA national that is recognised under the national law of the state in which it was contracted”.

This provision means that EEA citizens living in the UK, who have entered a kafala adoption overseas, can now apply for a visa to bring their child home.
 
>>> VFS Update: Scanning Hub and Preferred Partner operation moving – USA

“Dear Partners,

I’m writing to inform you that our Scanning Hub and Preferred Partner operation is moving by end of the month to our Joint Visa Application Centre located in Times Square.  
Please see timelines for you to be aware of:

Thursday August 22: Last day for Preferred Partner submissions in current premise
Friday August 23: Last day in current premise, No Preferred Partner submissions
Saturday August 24: VFS Moving
Sunday August 25: VFS Moving
Monday August 26: Preferred Partner submissions to begin out of our Premium Application Centre
Tuesday August 27: Operations to resume as BAU
Address: 145 West 45th St, Floor 5, New York NY 10036
Preferred Partner submissions will take place within our Premium Application Centre on the 5th floor from 26th onwards. When entering the building, you will be required to sign in at the building security desk before proceeding up to the 5th floor. At the 5th floor, there will be a security check by a VFS guard before entering the centre

We thank you for your patience during this transitional time.

UKVI & Canada VAC Operations – USA"

[British Lawyer]

12 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> The return of the HSMP or the Tier 1(General) programmes ? https://www.politicshome.com/news/uk/political-parties/conservative-party/news/105814/boris-johnson-unveils-immigration-shake

Boris Johnson has pledged to make it quicker and easier for foreign scientists to settle in the UK under a shake-up of immigration rules after Brexit.

>>> Student facing death penalty for ISIS membership stripped of British citizenship: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2169.html

A student who ran away to join ISIS in Syria has lost a legal challenge to the UK government’s decision to take away his British citizenship. The judgment, handed down yesterday and the first case of its kind in the High Court, is R (Islam) v Secretary of State for the Home Department [2019] EWHC 2169 (Admin).

>>> UKVI update: Country returns guide for August: https://www.gov.uk/government/publications/country-returns-guide

Home Office guidance on the documents required and processes for returning immigration offenders to their country of origin.

Updated to add August 2019 information.

[British Lawyer]

13 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Can a Tier 4 Student - main applicant - rely on his bank statements if the bank account is in joint names, such as the applicant’s name and the dependent spouse’s name ?

The answer is “Yes”: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-c-maintenance-funds

1A
(k) If the applicant wishes to rely on a joint account as evidence of available funds, the applicant (or for children under 18 years of age, the applicant’s parent or legal guardian who is legally present in the United Kingdom) must be named on the account as one of the account holders.
13
(i) the applicant (whether as a sole or joint account holder); and/or

>>> Can a Tier 2 Dependent provide his bank statements for maintenance funds ?

The answer is “Yes: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-e-maintenance-funds-for-the-family-of-relevant-points-based-system-migrants

Appendix E

(c) Where the applicant is applying as the Partner of a Relevant Points Based System Migrant or Appendix W Worker the relevant amount of funds must be available to either the applicant or the Relevant Points Based System Migrant or Appendix W Worker.
…
(f) In all cases, the funds in question must be available to:
(i) the applicant, or
(ii) where they are applying as the partner of a Relevant Points Based System Migrant or Appendix W Worker, either to them or to that Relevant Points Based System Migrant or Appendix W Worker

[British Lawyer]

14 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> No-deal Brexit notice; commentary on the Immigration (European Economic Area) (Amendment) Regulations 2019

Note on the implications of a no-deal Brexit for Europeans

With the prospect of a no-deal Brexit now looking like a more realistic possibility, the EU citizens and their family members may wish to note the following.

EU Settlement Scheme deadlines in a no deal situation
The Department for Exiting the EU (DExEU) have stated that different deadlines for the EU Settlement Scheme will be applicable in a no-deal situation as compared with under a deal. These deadlines appear to have been adopted by the Home Office in its webpages on settled status applications.

•    EU citizens intending to be a main applicant under the scheme must enter the UK by 31 October 2019. The Government documents are silent on the time of day an applicant must be in the UK before Brexit. Nonetheless, the European Union (Withdrawal) Act 2018 (Exit Day) (Amendment) (No. 2) Regulations 2019 and the definition of ‘specified date’ in the Immigration Rules, Appendix EU define Brexit day as 11pm on 31 October 2019. Therefore the applicants should be aware that this potentially stricter deadline exists and may eventually be relied on by the Home Office.
 
•    The main closure date for the EU Settlement Scheme for applicants (including both EU nationals and family members) living in the UK by 31 October 2019 will be 31 December 2020 instead of the deadline of 30 June 2021 which applies in the event of a deal.
 
•    Spouses, partners, children, parents and grandparents (and possibly other dependent family members) who have a relationship with the EU national by 31 October 2019 and are living abroad on that date (and children born abroad after 31 October 2019) will need to apply under the EU Settlement Scheme by 29 March 2022 and must continue to have the re-lationship at the date of application – applications made after 29 March 2022 must meet the UK Immigration Rules outside the scheme.
 
•    Spouses, partners and other dependent relatives who establish a relationship after 31 October 2019 with an EU citizen who has status under the scheme will be eligible to apply under the scheme until 31 December 2020 – applications made after 31 December 2020 must meet the Immigration Rules outside the scheme.
In order to be eligible under the EU Settlement Scheme, durable partners (with an exception for those applying from outside the UK) and dependent relatives (other than dependent parents) must also have been issued with a family permit or residence card under the EEA Regulations (or equivalent document/evidence issued by the Islands) by 31 October 2019.

Status of the policy

The drafting of the DExEU policy paper on citizens' rights in the event of a no deal Brexit is high-level and imprecise. The details of exactly which family members are covered is not clear. For example, it is not clear whether “partners” applies to both civil partners and durable partners. It is also not clear what the policy is intended to be for Surinder Singh family members or for the family members of individuals who have EU citizenship, have naturalised as a British citizen following the exercise of treaty rights in the UK and who continue to exercise treaty rights afterwards (i.e. those captured under the decision in Lounes).

Furthermore, it is important to note the policy in relation to no deal is not protected by any international agreement. This means that the government may be free to change the details at some later date. Such changes would of course be subject to ordinary public law principles.

EEA/EFTA nationals

The document was also originally published on 6 December 2018, before the UK concluded citizens’ rights agreements with the EEA/EFTA states (Iceland, Liechtenstein, Norway and Switzerland) and has not been updated for that development. It was updated on 28 March 2019, but only to ‘reflect that the UK will not leave the EU on 29 March 2019 and to clarify that the family reunion policy applies to EU citizens with pre-settled and settled status.’ However, the agreements with the EEA/EFTA states appear to mirror the DExEU policy but with greater detail and with the protection given by an international agreement.

European nationals arriving after 31 October 2019

As a further reminder, in the event of no deal a transitional period will apply after exit until 31 December 2020 to newly arriving EEA/Swiss nationals and their family members. The key points are:

•    EU nationals who have not established residence in the UK before 31 October 2019 will be able to enter the UK for three months. If they wish to stay beyond this period, they will need to apply for European temporary leave to remain.
 
•    European temporary leave to remain will be granted for a period of three years, calculated from the date of application. There will be no possibility of renewing this period or of apply-ing for indefinite leave to remain on the basis of this status alone. EU nationals who wish to stay beyond three years will have to find an alternative route under the Immigration Rules.
 
•    EU nationals may be joined by close family members (defined as spouse, partner or dependent children aged under 18) who are third country nationals. However, third country national family members who wish to accompany an EU national under these arrangements will need to apply in advance for a family permit.
 
•    These rules apply to nationals from the EEA/EFTA states.

>>> UKVI Guidance: Registration as a British citizen: children of British parents: https://www.gov.uk/government/publications/children-of-british-parents-nationality-policy-guidance

Updated guidance document published. Removed references to the good character require-ment following the British Nationality Act 1981 (Remedial) Order 2019.

>>> UKVI update: addition to Shortage Occupation List consultation response: https://www.gov.uk/government/consultations/shortage-occupation-list-2018-call-for-evidence

UKVI has added the Food and Drink Federation’s submission to the Shortage Occupation List consultation responses document

[British Lawyer]

15 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> You can still rely upon both the Appendix FM and EEA Regulations, until Brexit !

For example, if you are a dual EEA/British national. That is, you arrived into the UK as an EEA national, got your Permanent residence in due time and then became a British citizen. Then you brought your partner into the UK under the Appendix FM (“UK spouse visa”). Until Brexit it is, therefore, possible, for your partner, to apply for a 5-year EEA Residence Card under the EEA Regulations prior to 31/10/2019. Should an application be submitted under the EEA Regulations, the partner’s 30-month spouse visa will be concurrently valid with the Residence Card under the EEA Regulations.

>>> UKVI update: Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjrwdXewITkAhVSxoUKHc4iCsQQFjAAegQIAhAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F825246%2Ftier-2-v33.0.pdf&usg=AOvVaw0NxB3M6Y3uVsH8__J7-UYU

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

Changes from last version of this guidance

This version replaces the Tier 2 modernised guidance version 32.0 which has been withdrawn and archived. It has been updated following the higher education regulatory reforms which established the Office for Students (OfS) as the regulatory body for English higher education providers. The OfS regulatory framework came into force fully on 01 August 2019.

>>> Updating certificates of sponsorship following demergers and TUPE transfers

The UK BA Business Help Desk confirms that it is not necessary to report against a certificate of sponsorship under 'sponsor has stopped sponsoring migrant' when there is a TUPE/demerger as long as the necessary updates are made elsewhere.

[British Lawyer]

16 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> The NHS Surcharge – UK BA – what you need to know: https://www.gov.uk/healthcare-immigration-application/refunds

>>> Asylum seeker not “effeminate” enough to be gay, immigration judge says

An immigration judge has rejected an asylum seeker’s claim to be gay, saying that the man did not come across as “effeminate” enough to be credible.

According to a lawyer involved in the case, the judge wrote that the man did not have a gay “demeanour” and did not “look around the room in an effeminate manner”.

The judge reportedly went on to say that “on the gay scene younger men are highly valued”.

Statistically, 33% of asylum appeals based on sexual orientation were successful in 2017. That was below the average for all asylum appeals, which was 40% that year, although the statistics are experimental and should be interpreted with caution.

[British Lawyer]

20 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

 

>>> Online asylum appeals to be rolled out nationwide in 2020

 

Asylum appeals will be filed and managed entirely online from next year, the courts and tribunals service for England and Wales has said.

 

HMCTS told Free Movement that it plans to roll out its “reformed digital asylum service” to all hearing centres at the end of January 2020.

 

The digital appeal system aims to make the process of challenging an asylum system more efficient and less paper-bound. The focus is on electronic document upload, digitised case management and early online resolution rather than the final hearing being on a webcam, although HMCTS is also experimenting with virtual hearings throughout the tribunal system.

 

Outlining the system in a recent update on its work, HMCTS said that “appeals will be submitted electronically by legal representatives and will be received instantaneously by both HMCTS and the Home Office. The appeals will then progress digitally via the on line service from initial application, through to hearing and judicial decision”.

 

It adds that the new system will “enable cases to be resolved online where that is appropriate, as well as supporting the use of video and face-to-face hearings”.

 

Digital asylum appeals are currently being piloted at Manchester and Taylor House hearing centres. Six solicitors’ firms are involved.

 

The pilot will be expanded to Bradford and Newport in September 2019, and further rolled out to Birmingham and Hatton Cross by the end of the year.

 

The national rollout that follows will only be for cases where the appellant has legal representation. HMCTS says that a separate service is being designed for unrepresented appellants, which will begin pilot testing early in 2020.

 

Other areas of immigration and asylum law may be digitised further down the line. The HMCTS annual report notes that “we have plans to continue to research and design other appeals processes including bail”.

 

 

 

[British Lawyer]

22 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Migrants working illegally still have employment rights: https://www.bailii.org/ew/cases/EWCA/Civ/2019/1393.html

The case of Okedina v Chikale [2019] EWCA Civ 139a3 had been making its way through the courts for some time. In 2013, Ms Okedina arranged for Ms Chikale to move to the UK as her live-in domestic worker and organised her UK visa.
To cut a long story short, Ms Okedina failed to renew the visa and failed to let Ms Chikale know that. Eventually the relationship broke down and Ms Chikale claimed compensation in respect of various employment law breaches, including unfair and wrongful dismissal, race discrimination and unlawful deductions from wages.

Ms Okedina’s position was that Ms Chikale was not entitled to any of this because she had been working in breach of UK immigration laws — the “illegality defence”.

This argument failed in the Employment Tribunal, the Employment Appeal Tribunal and, most recently, in the Court of Appeal. Lord Justice Underhill noted that there was no public policy reason why the relevant legislation should interpreted to support Ms Okedina, pointing out that genuine mistakes over immigration status are not necessarily unreasonable:

“...some aspects of the relevant rules are complicated or unclear, and wrong advice can be given, sometimes by the Home Office itself. In short, not all cases of illegal working involve culpability on the part of the employee.”

This case was pretty unusual. Not only was Ms Chikale oblivious to the fact that she was working without immigration permission, but it was alleged that Ms Okedina had submitted false information in the documents she had prepared for Ms Chikale and had forged her signature.

Abnormal as the case may be, what it shows is that the overlap between immigration law and employment law is in no way clear cut. Lacking immigration status does not mean that an employment contract is unenforceable.

Whilst immigration experts will usually be well-equipped to provide advice on factual points — if a person has leave, whether they have protection under Section 3C or not (and to educate all parties on what that means), etc — it is important to avoid making statements on the legality of the contract of employment (unless you happen to be an expert on employment law also).

[British Lawyer]

23 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> New Innovator visa attracts just four applicants in first three months: https://www.gov.uk/government/statistics/immigration-statistics-year-ending-june-2019

There have been just four applications for the government’s flagship new visa for overseas entrepreneurs in its first three months of operation.

Only four people applied for an Innovator visa between April and June 2019, according to the latest Home Office figures.
By contrast, the visa it replaced — Tier 1 (Entrepreneur) — had 1,900 applications in 2018.

The figures will raise questions about the design of the Innovator route. Aimed at experienced foreign entrepreneurs who have at least £50,000 in capital behind them, it requires applicants to be endorsed by one of a limited number of business incubators and seed funds.

Experts had warned that the design of the Innovator visa scheme is flawed. Issues include the frequent need to participate in a business accelerator programme to secure endorsement; having to give up equity in the start-up; and the “extremely high” bar for getting settlement.

The model is perceived as unattractive to the calibre of people who would meet the criteria for an Innovator visa, which include being able to bring their start-up business into international markets.

A Freedom of Information response released in May showed that there had been zero Innovator application visas in the first fortnight of the scheme.

It has now emerged that only four people applied for entry clearance in the Innovator category between April and June 2019. Two of those applications have been resolved, of which both were granted.

In the previous quarter, there were 738 Tier 1 (Entrepreneur) applications. Tier 1 (Entrepreneur) closed to new applicants on 29 March 2019, the same date that the Innovator route went live.

While the Home Office has previously said that it expects to grant fewer visas under the new Innovator and Start-up routes than under the schemes they replace, it seems unlikely that applications in single figures would make the cost of designing and administering the route worthwhile.

The Start-up visa is off to a slightly better start. It attracted 32 entry clearance applications in its first quarter of operation, of which 25 were decided on and 23 granted.

>>> UKVI update: Tier 4 of the points-based system: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwii4a6ezpjkAhWjunEKHel-DYwQFjAAegQIAhAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F825737%2Ftier-4-guidance-v47.0-ext.pdf&usg=AOvVaw1O8sr4WJx1MRvQkY26QpF9

Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4.

"Changes from last version of this guidance

The key changes to this guidance since it was last published on 10 January 2019 are:

•    references to UK HEIs have been amended to refer to HEPs (higher education providers) with a track record of compliance, where appropriate, to reflect the additional privileges available to such providers following the HE reforms which have taken effect
•    guidance regarding sports scholarships has been added to ensure these are accepted and not considered to be a breach of the definition of working as a ‘professional sportsperson’ which refers to receiving payment, including payment in kind
•    guidance regarding sports-related work placements has been added to clarify what activity Tier 4 students are permitted to undertake"

>>> UKVI update: Short-term students guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwix2bDKzpjkAhXHVRUIHetYAEQQFjAAegQIARAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F826915%2Fshort-term-students-v11.0ext.pdf&usg=AOvVaw1L7QOyEKg60kFOEVkWoy8F

Guidance on how short-term student applications for entry clearance or leave to enter are considered.

"Changes from last version of this guidance

Additions have been made to reflect the expansion of ePassport gate eligibility to seven additional nationalities on Monday 20 May 2019.
...

B5JSSK Nationals

Visitors and entry clearance holders who are nationals of Australia, Canada, Japan, New Zealand, Singapore, South Korea, and the United States of America (B5JSSK) are able to use ePassport gates to enter the UK. If a national of one of these countries does not hold an entry clearance and wishes to seek entry as a Short Term Student they must see a Border Force officer and cannot use the ePassport gates."

>>> Government can be liable for costs in Cart type judicial review cases: https://www.bailii.org/ew/cases/EWCA/Civ/2019/151.html

The Court of Appeal has held that the UK government can be asked to pay expenses where a judicial review has been brought against the Upper Tribunal’s refusal to grant permission to appeal. The test case of Faqiri v Upper Tribunal (Immigration and Asylum Chamber) [2019] EWCA Civ 151 has only recently been published on Bailli but it makes for interesting reading. To understand why this was such an important case, let’s look at how cases get to the point of judicial review proceedings against the Upper Tribunal.

Immigration appeals typically start life in the First-tier Tribunal. If refused, an appeal to the Upper Tribunal is not automatic. Instead, appellants get two bites at the cherry with a chance to apply first to the First-tier Tribunal for permission to appeal, and, if refused, then directly to the Upper Tribunal. If permission is refused at the Upper Tribunal stage, an appellant becomes “appeal rights exhausted”: there is no statutory right of further appeal.

In a small amount of cases, it is possible to apply for judicial review against the Upper Tribunal’s decision to refuse permission to appeal. In those cases, the courts apply the “second appeals test” which empowers courts to allow such cases to be brought if satisfied:

1.    that the proposed appeal would raise some important point of principle or practice, or
2.    that there is some other compelling reason for the relevant appellate court to hear the appeal

So, where this Cart type of judicial review is brought, the respondent is always the Upper Tribunal because it is the Upper Tribunal’s decision which is being challenged.

Inevitably, however, the Home Office appears as an interested party backing the tribunal. That is because it will ultimately be the Home Office opposing these appeals in the tribunals below and incurring expense and time if they are sent back there.

In the Faqiri case, the High Court had quashed the decision of the Upper Tribunal but did not award costs against the Upper Tribunal. Instead, the court made a limited costs order against the Home Office.

The appellant’s primary case was that costs should have been awarded against the Upper Tribunal. Lord Justice Hickinbottom was unimpressed, saying:

“The driving force behind the proposition in Davies and Gudanaviciene – that a court or tribunal should not be liable for the costs of a judicial review which seeks to challenge one of its decisions, if the court or tribunal does not act improperly and takes no active part in the proceedings – is the important principle of judicial immunity. That principle applies equally to decisions challenged by way of Cart claims as any judicial review of the decision of a court or tribunal”

The next argument was that the Home Office should have borne the full costs of the judicial review procedure because it was, after all, the real opponent all along. The Secretary of State cross-appealed on the basis that she did not participate in the judicial review proceedings, was not the “unsuccessful party” and did not cause any additional expense in the judicial review proceedings.

The Court of Appeal hit the nail on the head in saying:

“… the right that the Appellant is in reality seeking to vindicate is not his right to pursue an appeal in the UT, but his right to asylum, which the Secretary of State denied by his refusal of the Appellant’s claim for asylum. Given that there is no right of appeal or review in respect of the UT’s refusal of permission to appeal to it, to vindicate that right the Appellant was bound to commence judicial review proceedings. In my view, those proceedings cannot be viewed – as Mr Joseph urges – in isolation. They have been brought to enable the Appellant to proceed with his appeal to the UT, and only for that purpose.”
Hickinbottom LJ noted that the “protagonist” in the appeal was the Secretary of State, and the point of the judicial review to vindicate Mr Faqiri’s right to asylum. "

He went on:

"Perhaps that is a principled basis for an order in the judicial review that may result in the Secretary of State bearing some of the claimant’s costs, even though he played no active part in the claim. Even if, in these circumstances, the Secretary of State might not usually be described as “the unsuccessful party”.

This decision seems likely to force Ms Patel to dig deep into her pockets. Whilst it is true that the number of successful Cart claims is small, the cost associated with judicial review proceedings can be astronomical, especially in Scotland where we have ridiculously extravagant court fees. As an example, it will cost you the princely sum of £418 per hour for a court hearing if you’re not funded by legal aid.

If the Home Office does now have to think carefully about the potential for being held liable for costs at the judicial review stage, it may have to spend a bit more time scrutinising applications for permission to appeal to see whether there is indeed any merit in conceding cases.

[British Lawyer]

28 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>>  Applying for an emergency UK travel document: https://www.gov.uk/emergency-travel-document/how-to-apply

How to apply

You can apply online.

It costs £100 to apply for an emergency travel document. The fee is not refundable. You can pay online as part of your application. If you do not, you’ll be asked to pay over the phone.

You might need to attend an appointment at your nearest British embassy, high commission or consulate after you apply online. You’ll be told after you’ve submitted your application whether you need an appointment.

You’ll need to give a contact telephone number and email address as part of your application.

How long it will take

Your emergency travel document will normally be ready 2 working days after you apply.

It can take longer, for example if you have:

•    applied for a child under 16
•    not paid or given the right supporting documents
•    not given enough or correct information

You’ll be told after you’ve applied how and when you’ll get your emergency travel document.

Apply on behalf of someone else

You can apply for an emergency travel document and book an appointment for someone else if they’re a British citizen. They might have to attend an appointment and they must collect their emergency travel document in person.

If you apply for a child under 16, they’ll need to attend an appointment. Both parents should go with them if possible. If neither parent can attend, they’ll need to send a signed consent letter.

Summary of steps:

1. Apply online for an emergency travel document. It will help immensely if you have a note of your passport details to hand.
2. File a police report within 24 hours.
3. Wait for the email confirming that your travel document has been issued. Don’t book a return flight until you have that confirmation.
4. Bring a copy of the email (electronic is fine) to the nominated embassy or consulate to collect your travel document

>>> Guidance  - Apply for a UK visa in the USA: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa/apply-for-a-uk-visa-in-the-usa

>>> Guidance - Apply for a UK visa in Australia: https://www.gov.uk/government/publications/australia-apply-for-a-uk-visa/apply-for-a-uk-visa-in-australia

>>> Guidance - Apply for a UK visa in New Zealand: https://www.gov.uk/government/publications/new-zealand-apply-for-a-uk-visa/apply-for-a-uk-visa-in-new-zealand

[British Lawyer]

29 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

 

>>> UKVI: Apply for destitution domestic violence (DDV) concession: https://www.gov.uk/government/publications/application-for-benefits-for-visa-holder-domestic-violence

 

Form for people on a UK partner visa to claim public funds (benefits) while applying to settle in the UK because of domestic violence.

 

'Victims of domestic violence (DDV) concession replaced with new version.'

 

>>> UKVI update: visit guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiN5Pmo3afkAhXPX8AKHa2VDE4QFjAAegQIAhAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F827480%2FVisit-guidance-v9.0ext.pdf&usg=AOvVaw1KdH6zJhyClYps1AhBKa-4

 

Updated guidance about the different visitor categories for visiting the UK and how UK Visas and Immigration makes decisions on visitor cases.

 

 

[British Lawyer]

30 August 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>>  Upcoming changes in the UK Visa applications – the insider’s selected report

NB: HO = Home Office

•    There are plans to align fees and service standards in the Marriage & Family visas route. The HO are looking to uniformly standardize the three different stages to Indefinite Leave to Remain in terms of customer offers and time frames. This is planned for late 2019 (potentially October) and will result in a uniform approach which will manage the expectations of the customer

•    The aim will be to offer next day SPV, 30 day PV and 60 day standard service standards so that the customer group has a clear selection of which to select from. This would ensure fees are aligned to the offer and align standards. Yet this may not be achievable for every country overseas in relation to SPV applications

•    The marriage and family routes are presently very document heavy. The HO are looking general at document reduction and rationalization in visa applications. They would like to be very clear about what they want, with an emphasis on document quality rather than the quantity. This will help improve decision quality and there is a “culture shift” required to facilitate this. For example, the HO view is that the 1000s of pages of WhatsApp conversations/pictures are unnecessary

•    In terms of in-country applications, HO are currently working with Sopra Steria to consider asking them not to accept more than 10 photos, but to advise individuals to submit a range of photos over the time period they are trying to demonstrate their relationship. However, they want to make clear that if HO are minded to refuse on this basis as they’re not satisfied the customer meets the relationship rules, they need to give an applicant the opportunity to provide more. This will be a change in approach. They don’t want to rush this through as they are aware this is a big cultural shift

•    The HO are proposing a pilot where they will make clear document requirements for customers applying at VACs such as only submitting 10 photographs. They are looking for feedback and engagement on this pilot. This will initially be rolled out with a small amount of VFS VACs probably in India and Phillipines, and TLS VACs (location to be confirmed). They will come back to certain stakeholders with more information in the next few weeks as the HO would like to engage extensively with both organizations on the pilot

•    There are three different streams available now for customers to submit documents through: 1. Free to use self-upload; 2. VAC; 3. Submission of sponsor documentation to the UK centres run by VFS/TLS

•    The HO IT system is being upgraded to a new system called ATLAS that will lead the decision maker through in a more process driven manner. This will give a more structured decision and lead to efficiencies, and ultimately it is hoped it will improve decision-making. This will be available for decision-makers in the marriage and family team later this year but ultimately it will go across all Home Office casework, including asylum etc. It will also ensure that decisions can be reviewed by management more easily. They are building a base structure that will encapsulate the core checks that are carried out across all categories

[British Lawyer]

05 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> No-deal Brexit plan: EU nationals could stay three years: https://www.bbc.com/news/uk-49579480

>>> Can a dependent of Tier 2(ICT) Visa holder can switch to Tier 2 General visa as a main applicant ? A 12 month cooling of period is irrelevant ?

The answer is “No switching, as 245HD(b) fails.”.

Also, no cooling off period is applicable under 245HB(g), if dependant did not have had en-try clearance or leave to remain as a Tier 2 Migrant at any time during the 12 months immediately before the date of the application, etc.

>>>  New guidance advises judges “doubt doesn’t mean it is arguable”: https://www.judiciary.uk/publications/joint-presidential-guidance-2019-no-1-permission-to-appeal-to-utiac/

A new revised guidance note for judges has been published by some other judges: Joint Presidential Guidance 2019 No 1: Permission to appeal to UTIAC.

Paragraph 31 seems to be rather odd or at least inexactly phrased:

“If a FtT judge considering an application for permission to appeal is in doubt whether there is an arguable error of law, the default position is that leave should be refused. The application can always be renewed.”

If there is doubt, surely it is arguable? It looks like one rule for First-tier judges and another for judges of the Upper Tribunal.
The guidance is primarily for judges rather than advocates, but it is worth a read if you want some insight into judicial mindset and the go-to procedural cases.

[British Lawyer]

06 September 2019 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> How does European Temporary Leave to Remain work?

The Euro TLR scheme is perhaps the world’s first voluntary immigration scheme, where an application is not actually needed in order to live, work or study. Applications will be free. Who says the UK can no longer innovate?

As we saw above, because the Immigration (European Economic Area) Regulations 2016 are being preserved in UK law, EU citizens entering after Brexit will have the right to live, work and study in the UK until sometime in 2021. Newly arrived EU citizens do not need to apply for this new Euro TLR status in the short term. In fact, on the face of it, for a lot of people it looks like it would actually be a bad idea to apply for it until shortly before the new immigration system comes into force.

The two advantages applying for Euro TLR to the EU citizen seem to be:

1.    That it grants a guaranteed period of three years of lawful residence and
2.    That time spent on Euro TLR can count towards settlement time IF the holder qualifies for settlement under the new rules in force in 2021.

The first of the advantages may mean it is better to delay making an application for Euro TLR. If you apply for that on 1 November 2019, it would expire on 1 November 2022 and you might need to leave the UK at that point. If you enter on 1 November 2019 but apply on 1 December 2020, just before the new system is (supposedly) introduced, your residence is guaranteed until 1 December 2023 instead.

The second of these advantages is predicated on the person concerned qualifying under the new immigration system in force from 2021. As we do not know what the rules will be at that time, this hardly seems like much of an advantage at the moment. A spouse will presumably still have to qualify for the £18,600 minimum income rule and a worker will need to be working for an employer with a sponsor licence.

The policy paper states that an EU citizen who arrives on or after 1 November 2019 and does not apply for Euro TRL will become illegally resident and subject to enforcement action after 1 January 2021:

«EU citizens and their family members who move to the UK after 31 October will need to have applied for a UK immigration status (whether Euro TLR or under the new, points-based immigration system) by 31 December 2020. Otherwise, they will be here unlawfully and will be liable to enforcement action, detention and removal as an immigration offender»

The policy paper does not spell this out, but clearly the same applies to EU citizens resident before 31 October 2019 who have not obtained pre settled or settled status under the EU Set-tlement Scheme. This is because enforcers will not be able to tell the difference between a newly arrived EU citizen without status and a long-resident EU citizen without status.

Frankly, no-one will be able to tell the difference between them anyway, at least without checking the Home Office database by phone or online, as none of them are being issued with paperwork. All you get if you do apply is a “secure digital status”, i.e. an entry on a government database. If you are an EU citizen after 2021, whether employers, landlords and so on can be bothered to look you up may determine whether they offer the job or tenancy to you or to a British citizen who has a passport as ready proof.

Family members

Close and extended family members of EU citizens will be able to enter, live, work and study in the UK after 31 October 2019 just the same as EU citizens. The parts of the Immigration (European Economic Area) Regulations 2016 dealing with family members are also being preserved in UK law. However, if they want to remain in the UK long term, they will eventually have to apply under the normal UK family immigration rules, judged to be the most restrictive in the developed world.

Family members can before 2021 make an optional application for Euro TLR if they want to. As for EU citizens, this is voluntary but offers a guaranteed period of leave beyond the start of 2021, when otherwise they would either have to leave, apply under the UK’s normal family rules or become illegally resident. It is a fair bet that a significant number will end up illegally resident, whether knowingly or unknowingly.

The exception to this is Surinder Singh family members of British citizens. British citizens who move abroad after 31 October 2019 will not be able to return later under the Surinder Singh route if there is no deal. If there is a deal, the current Appendix EU rules will apply, which give the British citizen until the expiry of the Withdrawal Agreement to move to the EU.

In the event of no deal, those who are resident abroad before 31 October 2019 will be eligi-ble to return with close family members as long as they do so by 2022. The policy says:
«The current route reflecting EU law will remain open until 29 March 2022 for existing close family members of UK nationals who were resident in the EU27 before exit.»

Given that Surinder Singh currently applies to extended family members and only close family members are mentioned here, it looks like extended family members will not be able to enter the UK under Surinder Singh after 31 October 2019.

How will treatment of resident and newly arrived EU citizens differ?

There is a major question mark over how the Home Office is going to distinguish after 31 October 2019 between EU citizens who are already resident and those who are newly ar-rived. It seems likely that some EU citizens are going to end up with the wrong status, either because they do not understand which application to make or because they are unable to prove their entitlement under the EU Settlement Scheme. In the short term this will not mat-ter, so EU citizens may not notice the problem. When grants of Euro TLR start expiring from 2022 onwards and EU citizens holding that status find they do not qualify under the new rules, that is going to cause huge disruption.

Before 31 October 2019, any EU citizen applying under the EU Settlement Scheme is guar-anteed at least pre-settled status, unless they are excluded by reason of criminality. No real checks on residence therefore have to be carried out.

After 31 October 2019, immigration officials will need to distinguish between EU citizens who were already resident and those who are newly arrived. Those who were already physi-cally present in the UK before 31 October will be entitled to at least pre settled status, which brings with it a route to permanent settlement and the right to be accompanied permanently by family members. Those who are newly arrived will not be entitled to these rights but should instead be granted Euro LTR.
But how will officials tell the difference? EU citizens do not receive a stamp in their pass-port when they arrive in or depart from the United Kingdom. How will an EU citizen who arrived literally on 31 October who is in theory entitled to pre settled status prove that to the Home Office? Maybe the Home Office has a cunning plan, but I do not know what it might be.
As intimated above, there is also going to be no way for immigration officials, employers, landlords, banks and so on to distinguish between an EU citizen resident before 31 October 2019 who has not applied under the EU Settlement Scheme and one who arrived after 31 October 2019 and has not applied under the new immigration system.

It is inevitable that the end of free movement, when it comes in 2021, will leave in its wake a significant population of EU citizens who are illegally resident. Some will have been resident for years, some will be relatively newly arrived. All will be subject to the hostile environment.