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11 March 2020 – 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)

>>>  Finally, the Home Office abandons “centre of life” test in Surinder Singh cases: https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens

The Home Office has finally updated its guidance on Surinder Singh cases to remove all reference to a “centre of life” test. This follows the case of ZA (Reg 9. EEA Regs; abuse of rights) Afghanistan [2019] UKUT 281 (IAC) in which the Upper Tribunal found that the test was made-up nonsense and incompatible with EU law.

Surinder Singh is an immigration route that allows British citizens who have moved to another EU country to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights. The Home Office has always hated what it sees as a backdoor, and from 2014 demanded proof that Brits trying to avail of Surinder Singh had moved the centre of their life to the EU country in question. That this was clearly incompatible with the EU law on the subject did not bother officials.

With the Upper Tribunal finally saying so explicitly, the Home Office has bowed to reality and stripped the centre of life test from its decision-making manual. The document now states:

    "Any previous references to a ‘centre of life’ requirement are no longer relevant following the determination in the case of ZA (Afghanistan) (UKUT 281 2019)."

The precise legal status of the Surinder Singh route now that the UK is no longer formally a member of the European Union is complicated, to say the least. But for the time being  it remains open and can be applied for until the 31st December 2020.

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11 March 2020 - Part 2 – 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)

>>>  Immigration Health Surcharge (IHS) rising to £624 in October 2020: https://www.gov.uk/government/publications/budget-2020-documents

The Immigration Health Surcharge is to increase from £400 to £624 in October 2020, the government has announced.

The rise was confirmed during the Budget, which Chancellor Rishi Sunak presented to Parliament today. An accompanying policy costings document states:

    "This measure increases the Immigration Health Surcharge from the current level of £400 per year to £624 per year for each surcharge liable non-EEA temporary migrant (including dependants). The measure also increases the discounted rate for students, their dependents and those on the Youth Mobility Scheme from £300 to £470. The surcharge will also be set at £470 for all children under the age of 18.

    This will be implemented in October 2020 and expanded to include future EEA temporary migrants at the increased rate from January 2021."

The Conservatives had promised to increase the surcharge to this level during the 2019 general election campaign, so it is not news in that sense, but the timing of the increase was not previously known.

Migrants already pay for the NHS through their taxes, so what the surcharge really represents is a tax on UK visas. It is levied in addition to headline visa application fees. These do not appear to be rising in 2020/21 — but the health surcharge hike will push up the total cost of many visas anyway.

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13 March 2020 - Part 2 – 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 120); IHS fee increase from October: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-120-12-march-2020
 
Surinder Singh cases
 
The Surinder Singh route allows British citizens who have moved to another European Economic Area country or Switzerland to return with non-European family members, bypassing the strict rules on UK family visas that apply to people who have not exercised free movement rights.
 
The clock is ticking on Surinder Singh. The amendments confirm that, to use this route, the UK citizen needs to be resident abroad and exercising free movement rights before the end of the transition period. This is the quite specific time of 23:00 GMT on 31 December 2020. The previous version of the rules was not particularly clear on this.
 
The upshot is that people availing of the Surinder Singh route can return to the UK any time before on 29 March 2022 at — you guessed it — 23:00 GMT, so long as the relationship existed pre-Brexit. If the relationship was established during the transition period, the cut-off is 23:00 GMT on 31 December 2020.
 
Absences
 
Paragraphs 18 to 19A of the Immigration Rules provide that those outside the UK with indefinite leave to remain may resume their UK residence so long as they were not absent for more than two years, as well as satisfying some other requirements. What was not confirmed up to this point was how that rule will be squared with the promise that people with EU settled status — which legally speaking is a form of indefinite leave to remain — can retain it for up to five years rather than two.
 
Appendix EU now explicitly states that paragraphs 18 and 19A will not apply to those granted settled status under the Settlement Scheme.
 
McCarthy cases
 
Up until 2012, the UK treated dual British/EU citizens the same way as other EU citizens. That is, dual nationals could still rely on EU free movement rights to bring family members in, avoiding the stricter immigration system that applies to Brits.
 
This changed after the Court of Justice case of C-434/09 McCarthy. It established that dual nationals living in the country of their nationality who have never exercised free movement cannot rely on EU free movement rights. That ruled out bring their family members into the home member state under the more lenient EU law system.
 
Following the McCarthy case, the UK amended the Immigration (European Economic Area) Regulations to so that EU citizens who were also British citizens could not rely on free movement rights. But transitional provisions were put in place to protect family members of dual nationals who had already come in under the old system. Specifically, those who applied for residence documents before either 16 July or 16 October 2012 (depending on the type of document).
 
This scenario is so niche that it was unintentionally omitted from the EU Settlement Scheme rules. It therefore did not allow for family members covered under these transitional provisions to be able to transfer over to settled status using the Scheme.
 
The changes now allow these family members to get settled (or pre-settled) status. It is not clear whether they will need to apply on a paper form, like other people with complicated cases, or whether they can use the online EU Settlement Scheme process.
 
Expired documents for durable partners and dependent relatives
 
Basically, if you are a durable partner or a dependent relative you first need to obtain one of these relevant documents from the Home Office before applying for pre-settled or settled status. You need to have applied for the document before 1 January 2021. You then have until 30 June 2021 to apply to the Settlement Scheme. We would recommend applying for both as soon as possible.
 
Yesterdays’s changes relate to relevant documents that have expired. They ensures that if a durable partner or dependent relative has an expired relevant document it will not be an obstacle to relying on the corresponding period of residence. That is so long as, before it expired, they applied for a further relevant document based on the same family relationship and the document was issued before the settlement scheme application is decided.
 
It is still important for durable partners and dependent relatives to keep note of the expiration date of these documents and to obtain a new one or apply to the Settlement Scheme before they expire.
 
Tier 2
 
The salary threshold in the eligibility criteria for indefinite leave to remain under Tier 2 will not increase annually following the recommendation of the Migration Advisory Committee. As a result, it will remain at £35,800 for all applications submitted on or after 6 April 2019 (paragraph 245HF(vi)(3)).
 
Archaeologists are now on the Shortage Occupation List after being accidentally left out.
 
Youth mobility scheme
 
The quota for Tier 5 (Youth Mobility Scheme) visas for Australians, New Zealanders and Canadians has been reduced by 1,000 each for 2020/21. These quotas are set by looking at how many Brits went to these countries on the equivalent working holiday visa last year. Fewer Brits going to Australia means fewer Australians allowed into the UK the following year, essentially.
 
Permit free festival list
 
This has been updated. No longer included for 2020/21 are Africa Utopia, Cornwall International Male Choral Festival and Manchester International Festival. Newly added are Edinburgh International Book Festival and London International Festival of Theatre. This may prove academic in the age of coronavirus.
 
Other changes
 
⦁ Applications can now be refused where an individual has been or would be excluded from refugee or humanitarian protection, or Article 33(2) of the Refugee Convention applies or would do so, as they are a danger to the security of the UK, or applies as, having been convicted of a particularly serious crime, they are a danger to the community. 
⦁ Leave to enter granted by virtue of having arrived with an entry clearance granted under Appendix EU (Family Permit) can now be cancelled where there has been a material change in circumstances since the family permit was granted. A cancellation decision on those grounds can be challenged by way of administrative review.
 
IHS fee increase
 
It was announced in the Budget that the immigration health surcharge will increase from £400 per year to £624 per year for adults and £470 for children under the age of 18. The discounted rate for students, their dependants and those on the Youth Mobility Scheme will increase from £300 to £470. This will take effect from October 2020.
 
 >>> Correspondence between ILPA and Trinity College London SELT re change in SELT
 
Following the recent change to the list of approved English language test providers, ILPA wrote to UKVI and Trinity College London to seek clarification. We are yet to hear from UKVI but we will update members when we hear further.
 
"New SELT providers will be going live over the coming months and customers should keep referring to the list for any updates. On December 16th 2019, Trinity College London was delighted to announce that it had again been awarded a Home Office concession agreement that will enable it to expand current provision of UK Visas and Immigration (UKVI) approved Secure English Language Tests (SELTs) in the UK. For more information please see our website. The date that we start in the new concession is to be confirmed however our tests continue to be approved for UKVI applications.
Please see the current list of approved test centres from 10th March 2020 here. This shows Trinity College London SELT centres are approved until July 2020. These are the current transitional arrangements in place which will be updated in due course as SELT providers (including Trinity), transition into a new UKVI Secure English Language Testing service."
 
>>> Correspondence from Business Helpdesk re copy bank statements and sponsor licence applications
 
From the Business Helpdesk:
 
Q: Will be possible for a lawyer to certify a statement from the bank if they view it via the online portal and print it from that?
A: A certified printout of an online statement can usually be accepted
Q: Is ot OK to adopt that approach for any document generated from an online portal ?
A: Yes, that is correct. Print outs of such documents are considered copies, so provided these are properly certified they would usually be accepted.
 
>>> “Genuine chance of being engaged” test for retaining EU worker status found unlawful: https://cpag.org.uk/sites/default/files/files/resource/CH-2389-2016 - 14.02.20.pdf
 
EU citizens do not have to prove that they have a “genuine chance of being engaged” in order to retain worker status under European Union law, the Upper Tribunal has held. The case is KH v Bury MBC and SSWP [2020] UKUT 50 (AAC).

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Канцлер Австрии Себастьян Курц в воскресенье, 15 марта, объявил о закрытии въезда в страну из Украины, Великобритании, Нидерландов и России для борьбы с распространением коронавируса, передает канал ORF.

«Из Великобритании, Нидерландов, Украины и России будет невозможно напрямую приехать в Австрию», - говорится в публикации. 

Авиация и коммуникация будут остановлены.

Кроме того, во вторник, 17 марта, будут закрыты спортивные и детские площадки. Ранее власти страны объявили о закрытии школ.

По данным на утро воскресенья, в Австрии зафиксировано 655 больных с коронавирусом. От COVID-19 умер один человек.

Ранее сообщалось, что Австрия с 16 марта закрывает авиасообщение с Францией, Испанией и заказом.

 

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17 March 2020 - Part 2 – 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)

>>> Long waits for visa documents may give rise to compensation: https://www.bailii.org/ew/cases/EWCA/Civ/2020/329.html

The Home Office may have to pay compensation in the case of major blunders, the Court of Appeal has said in a significant new ruling, Hasson v Secretary of State for the Home Department [2020] EWCA Civ 329.

Challenging an impressive new low by the Home Office, Mr Hasson sought compensation after being left waiting 25 months for a biometric residence permit (BRP) confirming his right to live and work in the UK.

On 20 May 2016, the Home Office sent the Mauritian citizen a letter confirming he had been granted leave to remain in the UK until 20 November 2018, promising his BRP would be sent within seven working days.

After years of chasing, Mr Hasson finally received his BRP on 19 June 2018, with five months left to run. Without the BRP, Mr Hasson had been unable to work and had accrued significant amounts of debt.

What does this mean for suing the Home Office?

While a significant ruling, as it may expand Home Office accountability, it’s important to remember that the Court of Appeal was only being asked to decide on a very narrow legal and procedural point: namely whether Mr Hasson’s case appeared strong enough to even proceed to a full hearing.

The decision was in Mr Hasson’s favour but the claim must now return to the Upper Tribunal to consider the facts of exactly what happened in more detail.

Until we know the outcome of that full hearing, it’s impossible to say for sure whether this is an outlying decision or part of a broader trend of holding the Home Office to account for its unacceptable delays.

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18 March 2020 - Part 2 – 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)

>>> Nationality law update in the Immigration and Nationality (Fees) (Amendment) (No. 2) Regulations 2020: http://www.legislation.gov.uk/uksi/2020/294/contents/made

Important points:

Paragraph 7.8 explains the process to account for the recent declaration of incompatibility in  relation to the position where a child's biological father is not the same as their father for the purposes of nationality law because the mother was married at the time of birth.

7.5 Certain applications for British citizenship are subject to the requirement to be of good character. The British Nationality Act 1981 (Remedial) Order 2019, which came into force on 25 July 2019, removed this requirement from routes where applicants were born to an unmarried British father before 1 July 2006 or to a British mother before 1 January 1983. This was as a result of court rulings which found that such a provision in the 1981 Act was incompatible with the European Convention on Human Rights.

7.6 These Regulations are concerned with applications under section 4F of the 1981 Act for registration as a British citizen made on the basis that the applicant would have been entitled to be registered under paragraph 4 or 5 of Schedule 2 to that Act if the applicant’s mother had been married to his or her natural father at the time of their birth. These are routes which make provision for those who are stateless to register as British citizens. An individual who made such an application before the British Nationality Act 1981 (Remedial) Order 2019 came into force on 25 July 2019 and whose application was refused on the basis that they were not of good character may wish to make a new application now that the good character test has been removed by the Order. These Regulations remove the fee that would otherwise have been payable for a repeated application of this kind. This amendment is made in response to a recommendation made by the Joint Committee on Human Rights in their report ‘Proposal for a draft British Nationality Act 1981 (Remedial) Order 2018’, published on 31 May 2018 (see in particular paragraph 64). Applications for registration under section 4C and sections 4G to 4I are already free and a fee exception is therefore not required for these routes.

7.7 Children born on or after 1 July 2006 to British fathers. A child cannot acquire British citizenship through their biological father if, at the time of their birth, their mother was married to or in an opposite sex civil partnership with another man. This is because, under section 50(9A) of the 1981 Act, the child’s father, for the purposes of provisions of that Act which confer British citizenship based on the status of a child’s father, is the mother’s husband or opposite sex civil partner at the time of the birth.

7.8 In a recent High Court judgment section 50(9A) of the 1981 Act was found to be incompatible with Article 14 of the European Convention of Human Rights when read in conjunction with Article 8 in this context, as such a child does not have an entitlement to be registered as a British Citizen. A child in these circumstances can apply to be registered as a British Citizen at the Home Secretary’s discretion under section 3(1) of the 1981 Act and whilst the government considers what appropriate action to take in light of the declaration of incompatibility, these Regulations provide for such a child to be able to make an application for registration without the payment of a fee.

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Long waits for visa documents may give rise to compensation

 

The Home Office may have to pay compensation in the case of major blunders, the Court of Appeal has said in a significant new ruling, Hasson v Secretary of State for the Home Department [2020] EWCA Civ 329.

Challenging an impressive new low by the Home Office, Mr Hasson sought compensation after being left waiting 25 months for a biometric residence permit (BRP) confirming his right to live and work in the UK.

On 20 May 2016, the Home Office sent the Mauritian citizen a letter confirming he had been granted leave to remain in the UK until 20 November 2018, promising his BRP would be sent within seven working days.

After years of chasing, Mr Hasson finally received his BRP on 19 June 2018, with five months left to run. Without the BRP, Mr Hasson had been unable to work and had accrued significant amounts of debt.

Basis of Mr Hasson’s compensation claim

The Home Office provided no apology or explanation for the delay. In October 2018, Mr Hasson started legal proceedings against the Home Office by way of judicial review.

To start with, he argued that the BRP should have been valid for 2.5 years from the date of issue. This point was later dropped on the basis that the document does not actually confer the right to stay: it just confirms the existence of leave.

Instead, the focus of his argument was that, if not for the Home Office mistake, he would have been able to work for the last two years.

On this basis, Mr Hasson sought a declaration there had been a breach of his private life, as protected by Article 8 of the European Convention on Human Rights, claiming he was entitled to compensation.

In the alternative, he said the Home Office had breached the duty of care it owed him, and he was entitled to compensation as a result of this negligence.

 

To begin with, Mr Hasson made little headway with his challenge. In its preliminary assessment of whether the case should be allowed to proceed to a full hearing, the Immigration and Asylum Chamber of the Upper Tribunal said that the Home Office did not owe Mr Hasson a duty of care.

Somewhat bizarrely, it also suggested that Mr Hasson’s passport was evidence of his right to work, and so he could have found employment if he’d really wanted. I can think of no case in which the Home Office would endorse someone’s passport with the right to work as well as issuing them with a BRP.

Mr Hasson asked the Court of Appeal to reconsider the Upper Tribunal’s decision refusing him permission to proceed to a full hearing. The Court of Appeal’s judgment is what we’re looking at here.

Home Office stance on the case

By this stage, the Home Office was gracious enough to concede that no employer would have accepted Mr Hasson’s passport as evidence of his right to work in the UK. But it nevertheless argued that he had not actually been prevented from working – he had simply been unable to work in the UK.

What Mr Hasson should have done, said the Home Office, was return to Mauritius where he could have lived and worked during the time it took for the BRP to be issued.

Mr Hasson’s leave to remain was granted on the basis he had a British wife and British son living in the UK, so this was a less than obvious course of action – particularly as he would have been unable to re-enter the UK without his BRP. Fortunately, the Court of Appeal was underwhelmed by this suggestion.

But the bulk of Home Office arguments centred on fairly technical legal points, exploring the nature of so-called “public law claims” and “private law claims”.

Public law claims, brought through judicial review proceedings, aim to hold public bodies to account. Claimants are usually asking the court to make an order directing the public body — a government department, say, or a local council — to act a in certain way, or refrain from acting a certain way. Or, as in the present case, make a declaration that the public body has acted unlawfully. These are known as “public law remedies”.

Private law claims are cases that cover the relationship between individuals. For example, where a contract has been breached or where someone has harmed someone else through negligence or wronging them in some way. In such cases, claimants are frequently seeking financial compensation, also called damages.

Public law claims do allow damages to be awarded but only as a “bolt-on” to the public law remedy. A private law claim can be brought against a public body but only in very limited situations. A key point in such cases is whether the public body has assumed responsibility for the claimant in some sense – for example, where there has been medical negligence by an NHS doctor.

In Hasson, the Home Office argued that:

(1) The matter was not one for judicial review, as Mr Hasson was not really seeking a public law remedy: he just wanted compensation.

(2) This was not a suitable matter for a private law damages claim. The Home Office did not owe Mr Hasson a duty of care and had not assumed any particular responsibility for him.

Court of Appeal findings

As to (1), the Court of Appeal disagreed. It said Mr Hasson was in fact seeking a declaration that the Home Office had acted unlawfully by failing to issue his BRP for two years. The damages claim based on breach of his private life rights was expressly linked to this declaration.

But the Court of Appeal struggled with (2). The courts have traditionally been extremely reluctant to expand the situations in which a duty of care is owed, particularly in cases involving mismanagement, or “maladministration”.

This is chiefly due to so-called “public policy reasons”, arising from the fact that the state has limited resources with which to provide important public services. The thinking is that imposing liability may lead to a rush of claims that diverts valuable financial resources away from already stretched public services.

Nevertheless, the Court of Appeal accepted it might be arguable that the Home Office had assumed responsibility in this particular case. Mr Hasson’s grant of leave arose from earlier court proceedings in which the Home Office had promised to make a decision on his case. He argued that the BRP delay meant that no effective decision had, in fact, been made.

What does this mean for suing the Home Office?

While a significant ruling, as it may expand Home Office accountability, it’s important to remember that the Court of Appeal was only being asked to decide on a very narrow legal and procedural point: namely whether Mr Hasson’s case appeared strong enough to even proceed to a full hearing.

The decision was in Mr Hasson’s favour but the claim must now return to the Upper Tribunal to consider the facts of exactly what happened in more detail.

Until we know the outcome of that full hearing, it’s impossible to say for sure whether this is an outlying decision or part of a broader trend of holding the Home Office to account for its unacceptable delays.

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EU to Halt Entry for Foreigners, Britons Remain Unaffected

The European Commission has announced today it is mulling the idea of closing all of its external borders, halting entry for all non-essential trips to the Schengen Area for foreigners, as a measure against the widely-spread novel Coronavirus.

The decision to ban foreigners from entering may also apply to the non-Schengen EU Member States, Romania, Cyprus, Croatia and Bulgaria. Ireland and the UK, however, will not apply it.

The EU Commission President Ursula von der Leyen while announcing the proposal, said that UK citizens, though in the transitional period of leaving the EU, would not be subject to the entry ban,

The UK citizens are European citizens, so, of course, there are no restrictions for the UK citizens to travel to the Continent,” she explained.

According to the proposal, while all non-essential entry to EU will be halted, excluded are doctors, medical staff and cross-border workers.

Europe’s move to undertake such a move follows the reintroduction of internal border controls by several EU member countries banning from entering all travellers that were not their passport holders, including Germany and Estonia.

Sources of SchegnenVisaInfo.com confirm that the idea has been firstly discussed on a phone call this morning between French president Emmanuel Macron, German chancellor Angela Merkel and the heads of the European Commission and Council. The first had accused member states of taking unilateral moves during the call.

The discussion has been followed by a joint video meeting between Commissioners Kyriakides and Johansson with the EU ministers of Health and of Home Affairs, during which the commissioners presented the guidelines regarding the proposal.

Our measures to contain the Coronavirus outbreak will be effective only if we coordinate on the European level. We have to take exceptional measures to protect the health of our citizens. But let’s make sure goods and essential services continue to flow in our internal market. This is the only way to prevent shortages of medical equipment or food,” President von der Leyen said regarding the situation.

For the Schengen Area to be suspended, all Schengen members must approve the plan.

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19 March 2020 - Part 2 – 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)

>>> Family life: substance over form: https://www.bailii.org/ew/cases/EWCA/Civ/2020/338.html

Uddin v Secretary of State for the Home Department [2020] EWCA Civ 338 is an important case in which the outgoing Senior President of Tribunals provides the judges who serve in his Immigration and Asylum Chamber with very strong guidance on mixed credibility findings and the assessment of family life.

>>> Supreme Court says immigration tribunal can decide for itself if appellant was trafficked: https://www.bailii.org/uk/cases/UKSC/2020/9.html

In the case of MS (Pakistan) v Secretary of State for the Home Department [2020] UKSC 9, handed down today, the Supreme Court has confirmed that the immigration tribunal can and must decide for itself whether an appellant was a victim of trafficking. The tribunal is not bound by decisions of the National Referral Mechanism (NRM) which is primarily responsible for assessing trafficking cases, nor even limited to finding public law errors in NRM decisions in order to go behind them.

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20 March 2020 - Part 2 – 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)

>>> Closure of USCIS Application Support Centres across the USA

Note from UKVI:

"I hope this email finds you safe and well during this difficult time.

As you already may be aware, USCIS has taken the move to suspend operations across their Application Support Center network, in an effort to limit the spread of COVID19. Full detail can be found here:
https://www.uscis.gov/about-us/uscis-response-coronavirus-disease-2019-covid-19

As such, standard UK visa service will be unavailable to US customers for the duration of the closure. At this time and subject to change, that date is April 01. In the interim, VFS PAC locations across the US (bar SFO and Seattle) currently remain open for business and walk-in fees will be waived by VFS for customers seeking service.  

Moving forward, we will send you updates on service changes as they happen."

>>> Grant of limited instead of indefinite leave does not generate human rights appeal:https://www.bailii.org/uk/cases/UKUT/IAC/2020/85.html

In Mujahid [2020] UKUT 85 (IAC), President Lane holds that where a person applies to the Home Office for indefinite leave to remain and is refused indefinite leave but granted limited leave instead, that decision is not a refusal of a human rights claim as defined at section 82 of the Nationality, Immigration and Asylum Act 2002. Therefore there is no statutory right of appeal against the decision.

The headnote:

    (1) A person (C) in the United Kingdom who makes a human rights claim is asserting that C (or someone connected with C) has, for whatever reason, a right recognised by the ECHR, which is of such a kind that removing C from, or requiring C to leave, would be a violation of that right.

    (2) The refusal of a human rights claim under section 82(1)(b) of the Nationality, Immigration and Asylum Act 2002 involves the Secretary of State taking the stance that she is not obliged by section 6 of the Human Rights Act 1998 to respond to the claim by granting C leave.

    (2) Accordingly, the Secretary of State does not decide to refuse a human rights claim when, in response to it, she grants C limited leave by reference to C’s family life with a particular family member, even though C had sought indefinite leave by reference to long residence in the United Kingdom.

>>> 300 people turned down by EU Settlement Scheme in February 2020: https://www.gov.uk/government/statistics/eu-settlement-scheme-statistics-february-2020

The EU Settlement Scheme statistics for February 2020 are out. They show 300 refusals. We’re told by the Home Office that the increase is mainly due to refusals for eligibility, not over criminality.

The two core reasons, the Home Office says, for the jump in refusals are:

-    Failing to provide eligibility evidence, either at the application stage or in reply to requests from the Settlement Resolution Centre.

 -   Non-EEA/Swiss family members failing to evidence their relationship to the EEA/Swiss sponsor. This could include failing to provide a marriage certificate or not possessing the relevant document as a dependent relative.

Officials say that they made every attempt to obtain the necessary evidence before refusing applications, and that decisions to refuse were not taken lightly and signed off at a high level.

>>> Substantial update to immigration policy on DNA evidence: https://www.gov.uk/government/publications/dna-policy

This update is the one to be aware of. Changes to DNA policy guidance as follows:

    Page 6, reference to DNA profile not revealing certain characteristics of a person who provides a DNA sample for testing.
    Page 7, guidance on who is entitled to see the results of a DNA test.
    Page 8, reference to funding the costs of witnesses
    Page 12, new sub-section on accreditation held by DNA testing laboratories.
    Page 12-14, updated guidance on collecting the DNA samples covering situations when the Home Office is in the possession of the applicant’s identification document and handling children aged under 16.
    Page 15, new section to replace DNA: Unavailability of a family member with DNA: Other biological relationships
    Page 16-18, advice on DNA test results and checking the authenticity of a DNA test report with the DNA testing laboratory.
    Page 20, template amended to inform applicants on how to obtain a DNA test and that we will verify the report with the DNA testing laboratory.
    Page 21, template to refer suspicious DNA test reports to laboratories Page 22, model letters on suitably accredited laboratories.
    Page 23-24, model letters on disregarding DNA evidence where the identity of a person who has provided a DNA sample cannot be verified
    Page 25, information on essential information.

The guidance was first introduced at the end of 2018 following a scandal over unlawful demands for visa applicants to take DNA tests to prove family relationships.

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UK/Schengen travel clarified

There has been confusion following President Macron’s announcement yesterday of Schengen/EU border closures – as to whether the UK is included.

 

To clarify: last night Foreign Affairs Minister Jean-Yves le Drian said the UK is considered as being within the EU/Schengen area, for purposes of the border closures.

The UK is being treated as still being in the EU, as it is in the Brexit transition period.

Mr Le Drian said: “The measure of closing the external borders concerns all countries outside the EU, the Schengen Zone and the UK.” 

Edward Llewellyn, the British ambassador to France, also said in a statement: “I wanted to reassure you that this will not apply to the UK. The Foreign Minister, Jean-Yves le Drian, Europe Minister Amélie de Montchalin and the Interior Minister, Christophe Castaner, have all made statements in public to that effect this evening.”

It is unclear however whether people coming into France from the UK may be subject to checks on their health or questions about the reasons for travel, and we have asked the British Embassy and the French Foreign Affairs Ministry.

An embassy spokeswoman said they are still seeking clarification on the details.

The strict rules now in place for ordinary travel within France raise questions as to whether anyone should now be travelling for purely ‘leisure’ reasons, as opposed to for example work or a family emergency.

European Commission president Ursula von der Leyen said yesterday: “We think that non-essential travel should be reduced right now, too, in order not to spread the virus further, be it within the European Union or by leaving the European Union, but also to avoid non-essential travel to not have more potential strain on our healthcare system.” 

The European Commission has put out border management advice to member states including proposing that all people crossing the Schengen Zone’s external borders should be subject to health checks and provided with access to healthcare if necessary.

However it said entry could only be refused to non-resident third-country nationals who are infected or have been especially exposed to risk. They could also alternatively be placed in quarantine, the commission said.

States within the Schengen Zone could also introduce internal (ie. for travellers within the zone) border checks if justified for by the situation in the country, the commission said.

 

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23 March 2020 - Part 2 – 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)

>>> Coronavirus and UK Immigration Update

First Tier Tribunal

The Fisrt Tier Tribunal (FTT IAC) is currently processing the adjournment of cases from Wednesday, the 25th March, onwards, and notifying lawyers and appellants of the same.

Subject Access Requests (SARS)

These can now only be made by email and only electronic records will be provided.

From the UK BA:

"With immediate effect, following the Government’s recent advice, we have instructed all staff to work from home if they can.

This means we can only process SARS made online and provide data held in electronic records (no Home Office Files can be processed). We are not able to process postal requests or correspondence until further notice.

VFS

VFS Global updates can be found here:

https://www.vfsglobal.com/en/individuals/covid-19-customer-advisories.html

Message from Sopra Steria - biometrics enrollments are still operational - yet follow the web-site

"It is important we share updates as quick as possible and given the recent announcements by HM Government I am writing to explain how these changes may affect our services and what we are doing to meet these unprecedented challenges.

We continue to monitor the well-being of our agents; to support the safety of applicants using our centres and to assess the performance of our operations to deliver appointment availability by minimizing any potential disruption to our service. As part of these regular daily reviews we are updating our UKVCAS website with important information on a daily basis regarding appointment capacity, which may include sites closures across our network for defined periods."

 

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24 March 2020 - Part 2 – 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 I apply for Settlement under the Long Residence/10 Year lawful residence Rules retrospectively ?

The answer is apparently, "Yes".

Under the paragraph 276B of the Rules once an applicant has accumulated the 10 years of lawful residence, and then left the UK, it no longer matters how long the applicant was absent from the UK.

So, it is possible to return into the UK after literary years of absence from the UK and apply for Settlement retrospectively.

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25 March 2020 - Part 2 – 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)

>>> Homd Office COVID19 Policy update: https://www.gov.uk/government/news/visas-extended-for-those-currently-unable-to-return-home-due-to-covid-19

Visas extended to 31 May for individuals who are currently unable to return home at the end of their visa.

>>> Correspondence from UKVI re reporting sponsored migrants working from home:

"... (The UK Border Agency) can confirm that sponsoring employers will not have to report a change of location for all sponsored migrants working from home.

>>> Prison time doesn’t count as “residence” in establishing enhanced EU law protection against deportation: https://www.bailii.org/ew/cases/EWCA/Civ/2020/406.html

The court found that the time spent in prison does not positively count toward the ten-year residence period required to benefit from enhanced legal protection against deportation as an EU citizen.

>>> Upper Tribunal says no duty of candour on Home Office in statutory appeals: https://www.bailii.org/uk/cases/UKUT/IAC/2020/88.html

In Nimo (appeals: duty of disclosure : Ghana) [2020] UKUT 88 (IAC) the Upper Tribunal, consisting of Mr Justice Lane and Mr Ockelton, has held that the duty of candour applying to parties in judicial review proceedings does not apply in statutory appeals and there is no obligation in marriage of convenience cases for the Home Office to disclose Form ICD.4605, which sets out the interviewer’s comments:

"    (1) In an immigration appeal, the Secretary of State’s duty of disclosure is not knowingly to mislead: CM (EM country guidance; disclosure) Zimbabwe CG [2013] UKUT 59, citing R v SSHD ex parte Kerrouche No 1[1997] Imm AR 610.

    (2) The Upper Tribunal was wrong to hold in Miah (interviewer’s comments; disclosure; fairness) [2014] UKUT 515 that, in every appeal involving an alleged marriage of convenience, the interviewer’s comments in the Secretary of State’s form ICD.4605 must be disclosed to the appellant and the Tribunal. No such general requirement is imposed by the respondent’s duty of disclosure or by rule 24 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014."

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Украинцам, не успевшим вернуться из Великобритании, продлят визы, - посольство

 

Украинцы, которые не смогли вернуться в домой из Соединенного Королевства на фоне мер по противодействию COVID-19, и тем самым нарушили сроки британской визы, смогут обратиться за ее продлением.

Об этом сообщает Цензор.НЕТ со ссылкой на пресс-службу посольства Украины в Великобритании.

"Уважаемые граждане, которые не смогли вернуться в Украину из-за Covid-19, что повлекло нарушение сроков вашей британской визы. По достигнутой с Соединенным Королевством договоренности те, кто оказались в такой ситуации должны прислать имейл в Хоум Офис CIH@homeoffice.gov.uk и ваши визы будут продлены до 31 мая", - говорится в сообщении.

 

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Life in the UK Centres closure announcement: https://www.lituktestbooking.co.uk/lituk-web/

"COVID-19: Important Information for Candidates

    Life in the UK Test centres will be closed in line with official requirements of the UK Government from 21 March until 13 April 2020 as a precautionary measure against coronavirus (COVID-19) to help protect the health of test takers and staff .

    If you have booked a test to take place during this period, your test booking will be rescheduled automatically to a date after 13 April 2020.

    If you are booking a new test, test dates are still available from 13 April 2020".

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26 March 2020 - Part 2 – 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)

>>> Home Office aims to completely rewrite “confusing” Immigration Rules by January 2021: https://www.gov.uk/government/publications/simplifying-the-immigration-rules-a-response

The Home Office has accepted the need to simplify the “complex and confusing” Immigration Rules and says that the work is already underway. The department says that “we have already begun the process of reviewing, simplifying and consolidating the Rules”.

The Law Commission’s report, published in January 2020, made 41 recommendations for redrafting the “overly complex and unworkable” regulations at the heart of the UK immigration system. The Home Office says that it is accepting 24 of them and partially accepting the other 17.

In terms of overall structure, the department’s proposal is broadly in line with the Law Commission’s. The simplified Rules would start with rules that apply across the board, such as how to make a valid visa application and the general grounds for refusal, followed by the rules specific to each visa.

The document includes some examples of how these route-specific rules could be drafted. The examples retain the much-derided system of “alphabet soup”, whereby the Rules are not numbered 1, 2, 3 etc but by letters indicating the section and then numbers:

    "Validity requirements for Parent of a Child Student

    PC.1.1. An applicant seeking to come to the UK as the Parent of a Child Student must have obtained permission to do so before their arrival in the UK.

    PC.1.2. An applicant who is in the UK at the date of application must have, or have last been granted, permission to come to or stay in the UK as the Parent of a Child Student."

This is despite the Home Office purporting to accept recommendation 14: “paragraphs should be numbered in a numerical sequence”.

The Law Commission also suggested, somewhat tentatively in the end, that there could also be separate “booklets” gathering together all the rules that apply to a particular visa. In other words, bringing together the general and specific rules into one document. The Home Office response to this is balanced:

    "We will continue to explore the idea of a booklet for each category of application… We think that the booklet approach, alongside the consolidated Rules, may cause confusion and risks material becoming inconsistent."

The department has accepted the idea of a simplification committee. The external stakeholders to be invited are almost all lawyers.

“Our aim”, says Foster, “is to complete this overhaul by January 2021”.

He also writes in the foreword: “For far too long, users have struggled to understand the confusing and complex Immigration Rules”. The minister is to be commended for his candour, given that his party has been in charge of the Rules for almost a decade.

 

 

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27 March 2020 - Part 2 – 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)

>>> Visa decision waiting times: applications outside the UK: https://www.gov.uk/guidance/visa-decision-waiting-times-applications-outside-the-uk?utm_source=432f08ee-18e7-46aa-81ec-9b9f255ebe04&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Due to the operational impact of the coronavirus (COVID-19), most of the UK’s visa applications centres are currently closed. All visa decision waiting times will be delayed until further notice.

The ‘priority service’ and ‘super priority service’ are suspended for applications made outside the UK.

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30 March 2020 - Part 2 – 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 UKVCAS service - Sopra Steeria UK biometrics enrolments suspended: https://www.ukvcas.co.uk/flash-message-detail?flashmessageId=950

How Does this Affect Me?

Customers with Existing Appointments

If you already have an existing appointment, you do not have to do anything. UKVCAS will automatically reschedule your appointment. Initially appointments will be rescheduled for 6 weeks ahead of your original appointment. Please monitor your UKVCAS account to find out when your new appointment has been scheduled for.

If you can’t make the rescheduled appointment, you can cancel this online and receive a full refund. However, you will not be able to rebook until the online booking system reopens.

Alternatively, you can wait until the online booking system reopens when you will be able to see all available appointments.

Please regularly check this website for updates on the service status.

New Customers

New customers are being asked to register your account as normal at our website. You will receive a prompt to register, from the ‘Book your Appointment’ link on the UKVI pages of GOV.UK.

Please regularly check this website for further updates on the service status.

Impact on Visa Applications

UKVI has now issued guidance that all foreign nationals whose permission to stay in the UK expired from 24th January 2020 may access a visa extension until 31st May 2020 therefore you will not be disadvantaged in any way due to the COVID-19 crisis.

>>> UK BA Coronavirus immigration update

The Home Office points out the following:

    - Applicants are advised to use Email when communicating with the Coronavirus Immigration Team, as that is where they have greater resources as staff can work from home. This way they can prioritize the helpline for the most vulnerable individuals.
    - Leave to remain extensions - the Home Office will be issuing specific further guidance for the applications during the COVID19 period
  - Right to work checks can be conducted via Skype - the Guidance is yet to be published
    - The requirement to enrol biometrics within 45 days has been waived and this will be confirmed in guidance
    - Where an application is submitted without SELT or a Life in the UK test, the application won't be rejected as invalid. Again, there will be guidance on this issue. Applications can be made in order to protect 3C leave, and the UK BA will put the application on hold until they are able to do so

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31 March 2020 - Part 2 – 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)

>>> Home Office can ignore human rights claims attached to normal immigration applications: https://www.bailii.org/uk/cases/UKUT/IAC/2020/89.html

The case of MY (refusal of human rights claim) Pakistan [2020] UKUT 89 (IAC) represents yet another cutback in the rights of migrant victims of domestic abuse, and in appeal rights more generally. The Upper Tribunal has ruled that the Home Office can simply refuse to engage with a human rights claim which is not made in the particular way the department wants it made.

When refusing to engage with a human rights claim submitted in the “wrong” format, the Home Office is not refusing that claim, and therefore there is no right of appeal. Some migrants will have to make very difficult decisions as a result.

>>> Coronavirus (COVID-19): right to work checks: https://www.gov.uk/guidance/coronavirus-covid-19-right-to-work-checks

>>> Start-up and Innovator visa endorsing bodies: guidance - https://www.gov.uk/government/publications/start-up-and-innovator-endorsing-bodies-guidance

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01 April 2020 – 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)

>>> NHS front line workers visas extended so they can focus on fighting coronavirus: https://www.gov.uk/government/news/nhs-frontline-workers-visas-extended-so-they-can-focus-on-fighting-coronavirus?utm_source=d0e814b3-bfad-4cde-9280-ff8e8b6f44ba&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Doctors, nurses and paramedics with visas due to expire before 1 October 2020 will have them automatically extended for one year.

As part of the national effort to combat coronavirus, doctors, nurses and paramedics will automatically have their visas extended, free of charge, for one year.

The extension, announced today (31 March) by the Home Secretary Priti Patel, will apply to around 2,800 migrant doctors, nurses and paramedics, employed by the NHS whose visa is due to expire before 1 October.

The extension will also apply to their family members, demonstrating how valued overseas NHS staff are to the UK.

By giving them the peace of mind that they do not need to apply for a visa extension, this will allow those at the front line – working around the clock in hospitals to treat the most seriously ill – to focus fully on combating coronavirus and saving lives.

To get more doctors and nurses on the front line, the Home Office has also lifted the restriction on the amount of hours student nurses and doctors can work in the NHS.

On top of these changes, pre-registered overseas nurses who are currently required to sit their first skills test within 3 months and to pass the test within 8 months, will now have this deadline extended to the end of the year as well.

This will give overseas nurses more time to pass their exams, whilst they spend the immediate term working on the front line.

Home Secretary Priti Patel said:

    "Doctors, nurses and paramedics from all over the world are playing a leading role in the NHS’s efforts to tackle coronavirus and save lives. We owe them a great deal of gratitude for all that they do.

    I don’t want them distracted by the visa process. That is why I have automatically extended their visas – free of charge – for a further year.

The extension to NHS visas will be automatic, there will be no fee attached and it will be exempt from the Immigration Health Surcharge.

Trainee doctors and nurses will also not be limited by the number of hours they can work in the NHS during term time."

>>> Visas and immigration Service and Support Centres: https://www.gov.uk/visas-and-immigration-service-and-support-centres

UK Visas and Immigration (UKVI) have temporarily closed Service and Support Centres (SSCs) because of coronavirus (COVID-19).

These centres (do not mix them up with Sopra Steria) dealt with the limited face-to-face application such as FLR(FP)/Human Rights/Legalization

NB: With other types You still need to lodge your immigration application (online) in time/lodge a valid application to preserve your immigration status. The biometrics enrolment is being deferred to a leter date.

>>> Recruitment opens for 14 new immigration judges: https://apply.judicialappointments.digital/vacancy/OPwPPwNPeiNz4VmnFbNU/

No sooner is the last batch of immigration judges through the door than the authorities are seeking to recruit more. Around 40 new judges were named to the immigration and asylum chamber of the First-tier Tribunal over the last few months, but the Judicial Appointments Commission is now seeking another 14.

Most of the positions are based in England and Wales, but there is one vacancy in Scotland. Applicants must have worked as a lawyer for at least five years, and are expected to have some kind of judicial or quasi-judicial experience.

The salary is £112,542.

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