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Важные судебные решения и новости для иммигрантов

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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.

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09 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)

>>> MAC instructed to ponder points based immigration system: https://www.gov.uk/government/publications/commissioning-letter-to-the-mac-on-a-points-based-system-for-migration

The long-suffering Migration Advisory Committee, or ‘MAC’ to its friends, has been com-missioned to carry out yet another review. Back in June 2019 the MAC were asked by one Home Secretary to think again about salary thresholds for skilled workers. This time they are being asked by a different Home Secretary to think again about the idea of an Australian style immigration system:

“Today, I am asking the MAC, as part of their current work on future potential salary thresholds, to conduct a review of the Australian immigration system and similar systems to advise on what best practice can be used to strengthen the UK labour market and attract the best and brightest from around the world.”

There’s then some flannelling about the benefits of controlled migration, once in a lifetime opportunities and so forth, before the letter concludes:

“This revised commission reflects the Government’s vision and overarching principles of the future UK immigration system: that it must be fair to those in the UK and those coming here; and allow for full control over our borders and immigration to the UK. Delivering on the promise to introduce an Australian-style points-based system is part of our approach to improving public confidence in our immigration system whilst allowing us to welcome talented and skilled individuals from all over the world.”
The report is due by January 2020.

In fact, the UK already has a points based system. It is literally called “the points based system” and it appears at Part 6A and numerous appendices of the Immigration Rules: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-6a-the-points-based-system

It has not actually operated as a genuine points-based system for many years now, it is true. There is only one route to getting each type of visa under the UK system and the UK system includes subjective “genuineness” tests all over the place, whereas under a true points-based system there will be multiple routes through acquiring different combinations of points for different objective qualities. The one bit of the UK system that really ran on points, called Tier 1 (General) was scrapped for new entrants back in 2011.

The White Paper on post-Brexit immigration published under Theresa May in 2018 pro-posed the abolition of special immigration rules for EU citizens along with some minor re-forms to the existing system. This would essentially bring EU citizens within a slightly re-formed version of the current immigration system. This was followed in March 2019 by the Home Office indicating that it wanted to move away from the now-redundant ‘points based system’ label. The new innovator and start up visa routes were added to a new non-points-based appendix of the Immigration Rules.

Whether any of this matters to anyone but the poor MAC members who now have to conduct the review is a moot point (although they could probably get away with putting a different front cover on the excellent Migration Observatory briefing on points based systems: https://migrationobservatory.ox.ac.uk/resources/reports/the-australian-points-based-system-what-is-it-and-what-would-its-impact-be-in-the-uk/ ). The current government may not last long and anyway already has a history of fake immigration news, like the hollow Johnson pledge to properly protect EU citizen rights and the recanted rumors of ending free movement after Brexit.

>>> Healthcare for British citizens in the EEA after a no-deal Brexit

This is an update on UK citizens’ and residents’ access to healthcare in the EEA and Switzerland if a no-deal Brexit happens on 31 October 2019.

The people who will be affected are those for whom the UK is currently paying for their healthcare in another EEA state or Switzerland under Regulation 883/2004. This includes:

•    UK residents temporarily “staying” (as opposed to “residing”) in an EEA state or Switzerland who travel with a European Health Insurance Card (EHIC), including tourists, posted workers, students and others.
•    UK pensioners living in an EEA state or Switzerland who are receiving a UK State Pension or another exportable UK contributory benefit and have an “S1” form.

For these people, their EHIC or S1 form will no longer be valid after 31 October 2019 if there is no deal.

People who are working in an EEA state or Switzerland (other than posted workers) will normally already be enrolled in that state’s social security system and their access to healthcare should not be affected.

The Healthcare (European Economic Area and Switzerland Arrangements) Act 2019, which received Royal Assent on 26 March 2019 and came into force on the same day, allows the UK Government to make provision for post-Brexit healthcare. Clause 1 gives the Secretary of State power to make payments, and arrange for payments to be made, in respect of the cost of healthcare provided in an EEA state or Switzerland. The details of the schemes will be set out in regulations made by the Secretary of State under clause 2. It appears that no such regulations have yet been made.

The Act anticipates “healthcare agreements” between the UK and EEA states, Switzerland and/or an international organization (presumably the EU), concerning (a) healthcare provided in an EEA state or Switzerland, payments in respect of which may be made by the government of the United Kingdom and/or (b) healthcare provided in the United Kingdom, payments in respect of which may be made by an EEA state or Switzerland. However, the wording of clauses 1 and 2 is clearly sufficiently wide to allow the UK Government to take unilateral action to fund healthcare abroad, even with no agreement. At the moment, we do not know what arrangements the Government intends to put in place under the 2019 Act.

Some EEA countries have unilaterally enacted legislation to protect British citizens’ healthcare after Brexit. If you are travelling to the EEA or Switzerland after 31 October 2019 you should check what arrangements have been put in place in the country to which you are travelling. It may be advisable to take out private insurance before you travel.

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10 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)


>>> Statement of Changes to the Immigration Rules: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-2631-9-september-2019

The detail of the changes being made is included in section 7 of the Explanatory Memorandum, but in summary, the changes will:

• Make revised provision for access to the EU Settlement Scheme for the family members of UK nationals returning from a European Economic Area (EEA) Member State or Switzerland, in line with a policy paper published in April 2019, and make other technical changes to the EU Settlement Scheme and EU Settlement Scheme family permit;
• Mandate an online route for applications for administrative review where the original application was made online;
• Replace references to the Dublin Arrangements which determine which member state is responsible for considering an asylum application;
• Expedite the grant of s67 ‘leave to remain’ on children who have been transferred to the UK under section 67 of the Immigration Act 2016; and,
• Make a number of minor amendments to business sectors, employment, and talent categories listed in the rules.

>>> Litigation win on early years provision

Following successful litigation, the Government has agreed to amend the existing regulations on early years provision for two-year-olds to include families with no recourse to public funds. The current provision enables families in receipt of low-income benefits to access 15 hours of free childcare for two-year-olds. This provision has often excluded some of the most disadvantaged families due to the no recourse to public funds (NRPF) condition that is attached to parents’ leave to remain in the UK.

In light of the litigation, the Department for Education will amend the regulations on early years provision for two-year-olds to make it accessible for the following families:

1. Those with an EU derivative right in the UK as a carer of a British child or a dependent adult i.e. a Zambrano carer in the UK
2. Those with an EU derivative right that is currently unrecognised – namely, someone that would otherwise meets the conditions for leave to remain as a Zambrano carer but does not currently have leave to remain, or is awaiting a decision on an application for leave to remain
3. Those with leave to remain on Article 8 family and private life grounds either within the rules (Appendix FM or 276E(2)) or outside the rules
4. Those who have claimed asylum but are ‘appeal rights exhausted’ (ARE) and in receipt of Section 4 support from the Home Office

This does unfortunately leave out non-British children of parents who do not currently have existing leave to remain and are do not qualify for a Zambrano right.

Where families satisfy the above conditions, they will still need to demonstrate that they have low income. According to guidance that the DfE and LGA have issued for local authorities, parents ‘must meet the income threshold (£15,400) to be eligible for a free place for their two-year-old.'

The DfE has also agreed to consult on the changes with relevant sector partners.

 

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11 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)

>>> Statement of changes to the Immigration Rules HC 2631: changes to work visa routes

Detailed review

A new statement of changes to the Immigration Rules was published on the 9th September 2019. Except where indicated otherwise, these changes will come into force on 1 October 2019.

Tier 2 

Quite a number of (positive) changes were made to the Tier 2 route in this Statement of Changes:

•    Following the Migration Advisory Committee’s review of May 2019, the Shortage Occupation List has been expanded with professions such as biological scientists and biochemists, psychologists, veterinarians, and architects (but note that some professions have been removed too). Around 1 in 10 jobs are now on the Shortage Occupation list. In addition, companies wishing to offer digital technology jobs in the shortage occupation list will no longer need to meet strict conditions they previously had to satisfy. The main advantage of employing someone on the Shortage Occupation List is that employers do not need to carry on a Resident Labour Market Test. In addition, applicants are exempt from the earnings threshold when applying for indefinite leave to remain (although they must still be paid the appropriate rate for the occupation). These changes come into force on 6 October 2019.

•    Still relating to the Shortage Occupation List, those who followed the BBC show “Who Should Get to Stay” may remember the case of a restaurant owner who could not sponsor skilled chefs because the restaurant offered a take away service. This restriction has finally been removed, such that restaurants who offer a takeaway service may still sponsor chefs.
•    Some salary rates have been modified and will apply to certificates of sponsorship assigned on or after 6 October 2019.
•    PhD level occupations will be exempt from the (20,700) annual limit on visas for skilled non-EU workers from 6 October 2019.
•    Another good news for PhD level occupations is that their absences from the UK for research which is directly relating to their Tier 2 employment will not be counted as absences in an application for indefinite leave to remain. The same applies to their partners who accompany them in these circumstances.
•    Changes have been made so that those who are absent from work due to sickness, statutory parental leave, assisting in a national or international humanitarian or environmental crisis or engaging in legal strike action may still apply for indefinite leave to remain even if such absences cause their salary to fall below the required threshold (similar rules already existed for those on maternity, paternity, share parental and adoption leave).
•    From 6 October 2019, jobs can be advertised on the gov.uk “Teaching Vacancies” for the purpose of carrying on a Resident Labour Market Test.

Start-up and innovator

To qualify under the start-up route, applicants are usually expected to not have previously established a UK business (if they have, they should apply as innovators). A change exempts students in the UK on the doctorate extension scheme from this condition.

Changes are also made to the requirements that an organisation must meet to become an endorsing body under these routes, including that their request may be refused on the grounds of “criminality or other actions or behaviour which are non-conducive to the public good” or due to conflicts of interest.

Tier 1 (investors)

Following the March 2019 Statement of changes, UK government bonds are no longer qualifying investments for Tier 1 (Investors). However the current Statement of changes make provisions for those who were already on the Tier 1 (Investor) route prior to 29 March 2019 to extend or settle in the UK, provided they move their qualifying investments out of UK government bonds. In particular, those who wish to extend their Tier 1 (Investor) leave must move their investments before 6 April 2023, while those who want to apply for indefinite leave to remain must move them before 6 April 2025.

Tier 1 Exceptional Talent

Tech Nation, one of the endorsing bodies for Tier 1 (Exceptional Talent) applicants, has asked that applicants provide three, rather than two, letters of support by established organisations in the digital technology sector. This change brings those applications in line with those applying for endorsement by other designated competent bodies.

In addition, Tech Nation seems to want to attract more “commercially savvy” applicants, and will take into account the commercial impact of the applicant’s previous work, achievements and experiences; and insists on applicants producing “product-led” digital technology rather than just digital technology.

The Royal Society, Royal Academy of Engineering and British Academy are, instead, being more generous, expanding the list of peer-reviewed fellowships which will allow applicants to apply under the fast-track procedure; allowing those who have held a fellowship in the 12 months prior to the application to apply; and allowing a wider range of senior academic or research positions to apply.

Students

Changes have been made so that students on Tier 4 (General) visas will be able to start working for Tier 2 sponsors within 3 months of the completion of their degree. Students who have been supported by an endorsing body can also start their business activities whilst their application for a start-up application is pending.

Another change is being made to allow Tier 4 students studying at masters’ and PhD level to start a different course of study with their current sponsor while they have leave, without having to make an application from overseas.

Professional sportsperson

For the fourth (!) time this year, the definition of professional sportsperson was changed (see Nichola Carter’s post for a bit of history). No doubt partly due to negative media coverage, the Rules went back to confirm that Tier 4 (General) students studying a course at degree level or above can play or coach as amateurs or as part of a work placement undertaken as an integral and assessed part of their course.

English language

For once we get rid of an Appendix! Appendix O will no longer exist, and details of acceptable English tests will be on the main gov.uk page (presumably here: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests )

In addition, applicants are no longer required to provide their test certificates, but only the unique reference number, both for English language tests and the Life in the UK Tests, which can be checked by the Home Office.

Lastly, Tier 2-sponsored doctor, dentist, nurse or midwifes whose English language was assessed by the relevant regulated professional body as a requirement for registration will no longer need to pass an additional English language test.

Tier 5

Minor changes to Tier 5 routes include:

•    The Foreign & Commonwealth Office government authorised exchange scheme has been removed.
•    The list of organisations permitted to sponsor researchers under the “UK Research and Innovation – Science, Research and Academia” scheme has been expanded.
•    From 1 January 2020, South Korean nationals applying under the Youth Mobility Scheme no longer need to apply for sponsorship from their government before applying for their visa.

Administrative review

Last but not least, administrative reviews must now be submitted online, unless the original application was made on a valid paper form.

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12 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)

>>> Important changes for the EU citizens under the EU Pre-Settled and Settled Scheme

Some changes have been rather worrying – see the detailed review below.

The UK Government has introduced the Statement of Changes to the Immigration Rules HC 2631. This is a formal change to the immigration rules and there is a lot to it; the full version weighs in at 102 pages. This review will be about the changes made the EU Settlement Scheme.

The ministerial announcement suggests that most of the changes relate to Surinder Singh, with some ‘technical changes’ here and there. While many are technical changes in order to improve understanding and clarity, some of them are quite important.

These changes to the EU Settlement Scheme, formally known as Appendix EU in the Immigration Rules, are brought into effect on 1 October 2019.

Administrative Reviews

The rules relating to Administrative Review have been changed to specify deadlines for such applications depending on the location and situation of the applicant.

For applications made by persons in the UK but not in detention the deadline will be 28 calendar days after receipt by the applicant of the relevant decision. For applications made by person in the UK and in detention the deadline is 7 calendar days. For applications made by persons overseas the deadline is 28 calendar days.

Those in immigration detention will have a torrid time trying to apply within 7 calendar days. There are administrative barriers to overcome, such as restrictions on communications to those outside the centres. The barriers to accessing good quality legal advice are even higher. Often individuals have to represent themselves for that reason. Without specialist knowledge of this scheme, it will reduce the chances of successfully challenging decisions.

The previous version of the rules allowed Administrative Review applications to be made outside of the deadline at the discretion of the Secretary of State. This discretion to allow late applications has been removed from the rules, meaning that from 1 October 2019 all Administrative Review applications must be made within the deadline.

This is a particularly unwelcome change given the high rate at which pre-settled rather than settled status is being granted and the continued absence of a right of appeal, where there is a discretion to admit late applications. There appears to be no reasonable justification for this change.

It will be possible to apply for Administrative Review of a decision to cancel leave granted under Appendix EU on the grounds that a person ceases to meet the requirements of that leave. But not where leave is cancelled for other reasons – see below.

In future any application for review, it will need to be made online unless the original application was made using a paper form.

Family members

This section of the rules sees many minor changes to improve scope, understanding and clarity.

For instance, the definition of EEA or Irish citizens who have naturalised to become British is adjusted. This means that family members of naturalised Brits who previously seemed to be excluded from the scheme are now included.

There are a few changes to the position of family members of an EEA citizen who has ceased activity, for example where an EEA citizen was in work but lost their job. The rules now require the family member to have been resident for a continuous qualifying period before the EEA citizen ceased activity. There was no such requirement in the previous version.

Children under 21 of British citizens are able to apply for settled status if their parents were durable partners (i.e. not married or in a civil partnership but in a serious relationship) before Brexit happens. But the durable partners need to marry or form a civil partnership before the application is made.

A person who is applying as the dependent parent of an under 18-year-old EEA citizen is now required to prove their dependency in order to be granted status.

Surinder Singh

The rules relating to family members of British citizens have been amended to reflect the recent policy paper.
The British citizen can return with specific family to the UK under these in the following circumstances:

•    The British citizen can return with the spouse, civil partner or durable partner where these relationships were formed before Brexit day, in these instances they must return before 29 March 2022
•    The British citizen can return with the spouse or civil partner where these relationships were formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
•    The British citizen can return with the durable partner where that relationship was formed after Brexit day, in these circumstances they must return before 11 pm on 31 December 2020
•    The British citizen can return with his or her child or dependent parent or the child or dependent parent of his or her spouse or civil partner, in these circumstances they must return before 11 pm on 29 March 2022. If the British citizen married or entered into a civil partnership after Brexit day and they wishh to return with the child or dependent parent of the spouse or civil partner, then the return date changes to 11 pm on 31 December 2020
•    The British citizen can return with his dependent relative other than a parent, so long as that family relationship and the dependency existed before their return to the UK. Their return to the UK must occur before 11 pm on 31 December 2020
It is good to see these rules clarified. The Explanatory Statement which accompanies them states these rules and their deadlines apply in both a ‘deal’ and a ‘no deal’ Brexit scenario.
Suitability

There are some substantive additions to the section relating to ’suitability’. This is the section where we find details on the circumstances where applications may (discretionary) or must (mandatory) be refused.

The accompanying ministerial statement says:

“We expect the vast majority of EUSS applicants to be genuine, and for there to be little need for status granted under the EUSS to be cancelled at the border or curtailed in-country.

However, it is appropriate that, to safeguard the integrity of the EUSS, its status should be covered by some of the same powers as other forms of immigration leave, so that appropriate action can be taken where necessary.”

There has always been a worry that pre-settled or settled status could be cancelled or curtailed. These changes bring life to those concerns.

An application for pre-settled status or settled status may (discretionary) now be refused if the applicant has previously been refused entry to the UK under the EEA Regulations. There are instances where EEA citizens or their family members have been incorrectly refused entry to the UK and it requires them to challenge that refusal from outside. It is a long drawn out process that often requires the assistance of a lawyer like the ones from the Legal Centre (www.legalcentre.org ). In many instances these border decisions go unchallenged. Now those historic decisions may be used as a ground to refuse an EUSS application.

An application for pre-settled or settled status may also be refused if it relates to someone who previously had such leave, but that leave was cancelled sometime in the past. This includes, not just leave granted under the EU Settlement Scheme from within the UK, but also leave granted in the course of an application to join an EEA national in the UK for the first time under Appendix EU (Family Permit).

This means that a person’s pre-settled and, crucially, settled status is by no means a guaranteed status. The refusal of the application must be justified on public policy, public security or public health grounds under the EEA Regulations or, if it occurs after a no-deal Brexit, on the grounds that the decision is conductive to the public good.

It essentially it requires a serious criminal offence and, amongst other requirements, the individual has to represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, with higher thresholds to overcome the longer someone has resided in the UK. Public good grounds have a much lower thresholds and is not just about offences but about the adverse conduct of an individual.
A person could now be living outside the UK with pre-settled status or settled status, and they could face the cancellation of their leave by the Home Office for this reason. This cancellation can occur on their arrival in the UK or while they are living outside the UK.

We, the lawyers at the Legal Centre, know too well that the Home Office decisions are sometimes of very poor quality. They often do not apply the public policy, public security, public health grounds or public good grounds properly, lawfully and correctly. An EEA citizen or their family members must have done something wrong to warrant Home Office attention in this way, but we often see the Home Office trying to cancel leave because of very minor offences or actions. This does leave individuals rather vulnerable to poor decision making.

Either statuses could also be cancelled on the basis that false or misleading information, representations or documents were submitted (including false or misleading information) and that material was used to obtain such status. It does not matter if the applicant did or did not know such material was false or misleading. This is major worry because the automatic nature of the EU Settlement Scheme application and the restrictiveness of its declarations has, in some instances, granted status based on incorrect information.

For example, an EEA citizen might now be living outside the UK but continuing to work for a UK based company and taxed accordingly. The EEA citizen intends to rely on a five-year continuous residence that occurred before they left the UK. But the nature of the automated residence checks mean that the application inadvertently grants settled status based on the tax information for the period they are outside the UK. The EEA citizen than accepts the application form declarations on the basis that the information is correct.

If the EEA citizen is aware of how the system works, they could, in theory, contact the Settlement Resolution Centre to try to remedy this. But if they do not know how the system works, there is no obvious way that they would be aware they are unknowingly accepting settled status based on misleading information.

In this scenario, the EEA citizen is obviously eligible for settled status, but they were granted it based on false information and not based on the correct period of residence. The manner in which the Statement of Changes is drafted does not make it clear that, in this scenario, the EEA citizen might not be vulnerable to their leave being cancelled for such a reason. There are many other instances of leave being granted based on incorrect information, though the grant is correct had the right information been requested or obtained. I worry that there may be instances of wrong or unduly harsh cancellations without due regard to the facts and backgrounds of the individual’s circumstances.

The rules also provide for the cancellation of leave where the applicant no longer meets the requirements of Appendix EU. Pre-settled status granted under these Rules is in no means a guaranteed route to settlement, it is now not guaranteed a person can retain pre-settled status to acquire the opportunity to apply for settled status. For example, a family member may cease to be a family member during the pre-settled status grant but cannot in any other way retain their status, they would find their leave cancelled and will need to investigate other routes to acquiring leave under the Rules or apply on human rights grounds to remain in the UK.

Additionally, a person could acquire an Appendix EU Family Permit to join an EEA citizen in the UK but could find that permit cancelled at the border based on adverse conduct after Brexit occurs but before they travel. There are particular concerns of poor decision making at the border. The time pressures of border control do not provide the optimum conditions for reasoned, thoughtful decision making. Entering the UK with a past adverse record of conduct, however minor, is not guaranteed.

We, the Legal Centre, have always been stressing that the British citizenship would have been a much better option, and therefore we can help you at any time now. All you need to to is to book your initial consultation with us via https://www.legalcentre.org/Initial-Consultation.html

 

 

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12 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)

>>> The 2 Years Post Study Work Visa will be available again, apparently : https://www.gov.uk/government/news/worlds-largest-genetics-research-project-to-fight-deadly-diseases-and-offer-new-offer-for-international-students

The news in 1 sentence:

“The Post Study Work Scheme will allow students to work in the UK for the employ-er of their choice for up to 2 years”.

The two-year Post Study Work Visa will be re-introduced, apparently. Multiple statements, from the Prime Minister, the Business Secretary, the Department for Education and, last and least, the Home Office have been released announcing the resurrection of a visa originally introduced in 2004 and killed off by Theresa May in 2012.

As background, the earliest incarnation of the post study work visa was the Science and Engineering Graduates Scheme in 2004, when the visa was limited to graduates in certain subjects and a 12-month post-graduation period of work was permitted. A similar scheme was trialed across all subject areas in Scotland from 2005 as the Fresh Talent: Working in Scot-land Scheme, back in the days when regional immigration policy was permitted. The period of work permitted was extended to two years. The scheme was judged a success and rolled out across the UK in 2007 as the International Graduates Scheme, but offering only a 12 month post-graduation period in which work was permitted. It was then absorbed into the Points Based System from 2008 as the Tier 1 (Post Study Work) visa. A more limited six-month form of the post-study work visa was reintroduced recently.

The date of implementation is not entirely clear yet, but the announcement suggests it will be available to students starting in the next academic year, September 2020. It is unknown whether current students already on courses in the UK will also benefit from the rule change. It is a shame that space could not be found for the measure in the formal Statement of Changes to the Immigration Rules was dropped just two days ago, which would have provided clarity and certainty to all concerned.

The return of the Blair-era drive to recruit foreign students and acknowledgment that there is stiff international competition to attract them has, unsurprisingly, been welcomed by universities themselves. Alistair Jarvis, Chief Executive of Universities UK, is quoted in the press release as saying:
“This is very positive news. Evidence shows that international students bring significant positive
 social outcomes to the UK as well as £26 billion in economic contributions, but for too long the lack of post-study work opportunities in the UK has put us at a competitive disadvantage in attracting those students.”

The introduction of a two-year post-study work visa is something Universities UK has long campaigned for, and we strongly welcome this policy change, which will put us back where we belong as a first choice study destination. Not only will a wide range of employers now have access to talented graduates from around the world, these students hold lifelong links in the UK.

An estimated 14% of all university income is from the substantial fees paid by foreign students. Not only that but foreign students contribute considerably to the wider economy when they live in the UK, provide a potential talent pool from which employers can recruit and offer potentially huge ‘soft power’ influence to the United Kingdom in the future.

Foreign students fell out of favor under Theresa May for two reasons. Firstly, the insane net migration target meant that any migrant, even an otherwise highly desirably one, became undesirable. May herself said in 2011 when announcing the scrapping of post study work visas:

“The package of measures that I have outlined today is expected to reduce the number of student visas by between 70,000 and 80,000—a reduction of more than 25%—and it will increase the outflow of foreign students after they have concluded their studies.”

The scrapping of this visa was closely associated with May herself and Ministers have been scrambling to dissociated themselves from it. The previous Home Secretary himself, Sajid Javid, who was until recently nominally in charge of immigration policy, has tweeted that it is ‘About time. Should have reversed this silly policy years ago.’ Jo Johnson was known to have championed re-introduction of the visa before he quit his brother’s government last week:

“About time. Should have reversed this silly policy years ago. Britain should always be open to the best talent from across the world. https://t.co/sAx1BIFSIR
— Sajid Javid (@sajidjavid) September 10, 2019”

The second reason for the fall from grace of this group was that the Home Office wrongly thought that loads of foreign students were overstaying their visas. In fact, the latest evidence is that a tiny percentage do so. With the adjusted data, there was really no rationale for driving numbers down.

Finally, it seems noteworthy that a range of government departments are being associated with the announcement. Even the Department for Education is in on the act. Is this a sign that immigration policy is no longer driven entirely by the Home Office? Let us hope so. Those hoping for a relaxation of the incredibly harsh family immigration rules may be dis-appointed, though. Foreign students are relatively popular in opinion polling. Migrant family members are not. The timing of this announcement, just after a Statement of Changes to the Immigration Rules which could have implemented the policy and at a time when Conservative electoral strategists must be searching around for a way to make the government seem more liberal, certainly points to this being about positive polling rather than good governance.

>>> UKVI update: Family members of points-based system migrants: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwiq0qKR7sjkAhUtQkEAHSraAt8QFjAAegQIABAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F830320%2Ffamily-members-of-pbs-migrants-v17.0.pdf&usg=AOvVaw1oH4MyYD-jTpgSKkTiw2ch

This version replaces the ‘Dependant family members of points-based system migrants and Appendix W Workers version 16.0’ which has been withdrawn and archived. It covers minor technical changes.
 
>>> UKVI update: Family life (as a partner or parent), private life and exceptional circumstances: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj3m4-37sjkAhWLecAKHdxNDRcQFjAAegQIABAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F826902%2F5-and-10-year-partner-parent-private-life-and-exceptional-circumstances-v1.0-ext.pdf&usg=AOvVaw2Y7LjI1x7fBxnC5C2gHu6E

Minor update to amend LTR requirements to mirror rules.

>>> UKVI update: First-tier Tribunal bail: completing the bail summary: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwj-nq_c7sjkAhXHTcAKHfF8A3AQFjAAegQIAhAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F830613%2Ffirst-tier-tribunal-bail-completing-the-bail-summary-v5.0-ext.pdf&usg=AOvVaw1lwusNYxSoTYX3ahY81Y5I

Amendments have been made to some of the wording in the Standard paragraphs when op-posing bail section.

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13 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)

>>> All UK BA news, in one place: https://www.gov.uk/government/latest?departments[]=uk-visas-and-immigration

>>> Lack of accommodation does not prevent claim for unlawful detention: https://www.bailii.org/ew/cases/EWHC/Admin/2019/2351.html

In DM (Tanzania) v Secretary of State for the Home Department [2019] EWHC 2351 (Admin), the High Court ruled that the lack of accommodation for foreign national offenders cannot be a defence in a claim for unlawful detention.

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16 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)

 
>>> Will the UK BA accept all English language tests from an approved provider?
 
 
“No. Any tests taken from 6 April 2015 must be on the approved SELT list. You can take IELTS or Trinity tests for many reasons at different centres but only those IELTS and Trinity tests specified for immigration use and taken at an approved centre can be used as part of an application for immigration purposes.
 
You should take care when booking your test to ensure that the test that you book is the one approved for SELT:
 
• for IELTS, ensure that you choose ‘IELTS
for UKVI’ rather than ‘IELTS’;
 
• for Trinity, ensure that you choose ‘Secure

English Language Tests for UKVI’.”

 

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19 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)

>>> Document reduction pilot

Beginning the 16 September 2019 the UKVI has launched a document reduction pilot for Settlement Appendix FM Spouse and Partner applications submitted at 6 VACs in India (New Delhi, North Mumbai, South Mumbai, Jalandhar, Chandigarh and Ahmedabad).

UKVI has confirmed as follows:

1. That they want to ensure this pilot runs as smoothly as possible and involves all parties so they are proposing that it is run in 2 phases starting from 16 September. Phase 1 will trial the pilot in the 6 Indian VACs mentioned above before they extend it out to other locations.
2. That the pilot won’t stop customers submitting additional evidence if they want it to be considered. UKVI will be asking their Commercial Partners to relay to customers that the quantity of relationship documentation isn’t required by UKVI and giving them guidance on what they may like to submit to satisfy what UKVI want to see, remembering that there is no specified evidence requirements when submitting relationship evidence. But if a customer insists on submitting thousands of photos and conversations, then they won’t stop them from doing so.
3. Phase 1 of the pilot is expected to run for around 8 weeks before being evaluated, at which point consideration will be given to extending the pilot before any recommendations are made to make it permanent.
4. With regards to evaluating the pilot UKVI intend to capture data in regards to the conversations that have taken place with customers and what documentation is then submitted, evalu-ate that and evaluate both the customer experience from feedback requests as well as the operational decision making impact.
5. With regards to anticipated next steps the trial will be phased with incremental increases before proposals to make this permanent are considered in 2020.

The text of the notice produced by UKVI for use by the VACs is as follows:

“Scanning documents provided to support Appendix FM Spouse/Partner visa applications

Customers often tell us that it is difficult to be sure which documents to provide in support of a settlement visa application. This can often lead to far too many documents being brought to the visa application centre to be scanned.

With immediate effect, we have instructed our commercial partner, VFS not to scan all documents provided in support of:

- Appendix FM spouse (where the sponsor is in salaried employment and non-salaried employment in the UK) and;
- Appendix FM partner (where the sponsor is in salaried employment and non-salaried employment in the UK) visa applications and;
- Children under the age of 18 years who are applying at the same time as the main applicants as described above.

The documents we will NOT accept are:

• Money Transfers
• Greeting Cards
• Phone Cards
• Letters from friends
• Call Logs
• Wedding Receipts/Invitations
• USB/DVD’s
• Newspaper Clippings

We will only accept a limited number of pages of the following documents:

• Chat history (WhatsApp and social media) - If you wish to submit copies of chat history, you are strongly advised to submit no more than 10 A4 pages of chat. The chat history should demonstrate your relationship over a period of time.
• Photographs - You are strongly advised to submit no more than a total of 10 photographs. You can include photographs from your wedding and/or a range of other photographs sup-porting your relationship over a period of time.

These are the documents that customers most commonly send us. It is not compulsory for you to provide any of these documents. If we need any further information to decide your visa application, we will contact you direct by phone or email.”

>>> CJEU: expulsion of family members who lose right of residence must still comply with EU law: http://curia.europa.eu/juris/documen...1&cid=14628768

The Court of Justice held that a person who had previously been a qualifying family member under Directive 2004/38 but had later lost that status could only be expelled in compliance with Articles 27 and 28. Further, the automatic ban on re-entry was not permitted:

“the expulsion decision that may be made in the case in the main proceedings cannot, under any circumstances, impose a ban on entry into the territory.”

The judgment in Chenchooliah therefore requires a serious rethink on the treatment of family members who have lost their EU law residence rights. The same applies to recognised extended family members. The arguments against expulsion are in fact far broader than previously understood and in the UK go far beyond the very limited provisions at paragraph 276ADE of the Immigration Rules. The UK re-entry ban rules do not on the face of it breach EU law as clearly as do the Irish rules but there is an argument to be had there should a family member seek return after removal.

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20 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)

 
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
Changes from last version of this guidance
 
New paragraph in section Third country and non-suspensive appeal (NSA) cases to clarify that a second notice period must be given if, after an asylum claim is certified, a subsequent human rights claim is separately certified.

Section heading level adjusted for ‘Third country and non-suspensive appeal (NSA) cases’ and ‘Special arrangements (including charter flights)’ to show they are not part of section Cases where the removal window should not be used.

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