Важные судебные решения и новости для иммигрантов

[British Lawyer]

10 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)

>>> Employers urged to apply now for licence to sponsor overseas workers once free movement ends: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers

Under the new immigration system planned to kick in from January 2021, the minimum skill level needed to be sponsored for a general work visa will be reduced from RQF level 6 to RQF level 3. This means that jobs which are considered to be A-level standard can be sponsored, instead of the Bachelor’s degree qualifications which are required now.

The proposals are solely to do with economic migration: family migration, asylum and students are unaffected. They are — very optimistically — supposed to come into effect from January 2021.

Skilled workers

The system would introduce a limited element of flexibility in sponsored work visas (currently branded Tier 2, although the language of “tiers” is virtually absent from the policy paper).

Sponsored workers would still need a job offer, English language skills and to be working at a certain skill level. That skill level would be reduced from level 6 (degree) to level 3 (A-level), as was also the case under the December 2018 white paper proposals.

There will still be a minimum salary required for a work visa. The headline salary threshold has been reduced to £25,600, in line with the Migration Advisory Committee’s recent recommendation. But it will no longer be the absolute minimum: some workers earning between £20,480 and £25,600 would still be able to get a visa, but only if they are highly qualified or working in shortage jobs.

So in effect, the minimum salary for a UK work visa will be £20,480 for people working in jobs on the Shortage Occupation List or who have PhDs in science, technology, engineering or mathematics. It will be £23,040 for people with a PhD outside these subjects but nevertheless “relevant to the job”. For people with none of these characteristics, the minimum will be the headline £25,600.

What about the proposal to scrap the annual cap on these work visas? That does reappear, although the word used is “suspend” rather than “abolish”. The Resident Labour Market Test will also go.

The paper adds:

    "There will continue to be different arrangements for a small number of occupations where the salary threshold will be based on published pay scales. We will set the requirements for new entrants 30% lower than the rate for experienced workers in any occupation and only use the base salary (and not the allowances or pension contributions) to determine whether the salary threshold is met."

Lower-skilled workers

There will be no visa route for “lower-skilled” workers. This is a change from the 2018 white paper, which had grudgingly proposed a system of 12-month work visas for people who do not meet the skills threshold outlined above. This would have been “for a transitional period after the UK’s exit from the EU”.

The paper also says that “we have committed to expanding the pilot scheme for seasonal workers in agriculture which will be quadrupled in size to 10,000 places”. So there will be visas for strawberry pickers, but not for care home workers.

Highly skilled workers

The Government proposes adding a new “unsponsored route” for the highly skilled alongside Tier 1 (Global Talent), with eligibility determined by personal characteristics:

"Example characteristics for which points could be awarded include academic qualifications, age and relevant work experience."

But in light of bitter experience — the MAC pointed out that the Home Office itself had come to loathe truly points-based visas like Tier 1 (General) — the paper says that “this route will take longer to implement”. It adds that “we want to learn from previous experience of similar schemes in the UK that have highlighted certain challenges. The scheme will need to be designed to make sure it adds value and does not undermine the skilled worker route or create opportunities for abuse”. It may be doubted whether it will ever come to pass.

What now?

The most telling line of this paper is that “The Home Office will publish further detail on the points-based system in due course”. Further detail is practically overdue already: these broad brush strokes must now be translated into detailed Immigration Rules and procedures in time for January 2021.

The Rules themselves are due for a general rewrite in line with Law Commission recommendations; the policy paper says that the government will be responding to these recommendations “shortly”.

>>> Government: we don’t want “low-skilled” workers after the pandemic: https://www.gov.uk/guidance/new-immigration-system-what-you-need-to-know?utm_source=76048cea-190a-4cfd-9041-422016fbfe97&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#lower-skilled-workers

What a moment for the Home Office to update its guidance on the new immigration system to reiterate:

    "There will not be an immigration route specifically for those who do not meet the skills or salary threshold for the skilled worker route."

Basically, in the midst of the COVID-19 crisis, the Home Office felt it necessary to state that care workers, nurses, hospital porters, cleaners, logistics personnel, postal workers etc will not be able to apply for a UK work visa from January. The only “low-skilled” workers that the government envisages letting in are agricultural labourers.

The same message appears in a brand new document, The UK’s points-based immigration system: an introduction for employers: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information/the-uks-points-based-immigration-system-an-introduction-for-employers

[fregat222]

Home Office evicted asylum seeker with COVID-19 symptoms

The Home Office evicted an asylum seeker with mental health problems and symptoms of COIVD-19, leaving him on the streets for over a week, it has emerged. The man has since been rehoused by order of the High Court, but his lawyers say the incident is proof of a policy to refuse asylum accommodation to those with the disease. The case is R (AQS) v Secretary of State for the Home Department [2020] EWHC 843 (Admin).

AQS is a destitute asylum seeker with mental health difficulties. The Home Office accepts that he is entitled to asylum accommodation under section 95 of the Immigration and Asylum Act 1999. He was in shared accommodation until 19 March 2020, when another man moved in. This other man had “a persistent cough and night sweats”, which AQS worried was related to COVID-19.

The next day, AQS awoke with COVID-19 symptoms of his own. He was moved into his own room, but felt that this was too little too late, and there was “an incident” with the manager during which AQS “caused some property damage”. Police were called and AQS was kicked out. Government lawyers now accept that he “may have been unilaterally evicted”.

This was on Friday 20 March, the same day as the government ordered bars, restaurants and cinemas to close in a significant escalation of the coronavirus response.

Over the next few days, AQS tried to get back into asylum accommodation. But when he contacted the organisation that provides accommodation on the department’s behalf, it reportedly told him that:

Home Office guidance for asylum-seekers presenting with Covid-19 symptoms was to call NHS 111 for medical advice.

AQS was also told to “ask for accommodation through the NHS”, according to evidence before the court.

At this point in the narrative, the judgment dryly records that “A call to NHS111 established that NHS111 could not accommodate AQS”.

In the meantime, AQS had been dragging his symptoms around London looking for a place to stay. The family who put him up over the weekend of 21/22 March themselves developed COVID-19 symptoms and had to ask him to leave.

AQS’s solicitors gave up and asked the High Court for an emergency accommodation order on Friday 27 March, by which time AQS had been on the streets for a week. He was finally housed in “a facility operated specifically for those entitled to asylum accommodation with symptoms of Covid-19” on Sunday 29 March.

The wider issue in the case is whether the Home Office operated a policy of refusing to house asylum seekers with COVID-19 symptoms. Mr Justice Robin Knowles found that:

On the evidence, that is not the case at present, and AQS’ accommodation for a short period at a dedicated facility appears to demonstrate that.

But the issue of whether such a policy was in place for a crucial public health period in March is left open. Simon Cox, representing AQS, says that “when the High Court ordered Home Office to accommodate our client, they did — and changed their policy”.

The Home Office denies that there was a deliberate policy, admitting only that there had been “a bit of confusion” about whether asylum seekers should be left on the street or not. It told the court that

this has since been clarified, and all staff have been reminded of the correct position … which is that the Secretary of State is continuing to accept applications for accommodation and support and provide the same for those who are eligible. It is obviously unfortunate that the wrong information was given, but this has been (and remains) a fast moving situation, and that error has been identified and corrected.”

The department added that those in asylum accommodation will be allowed to stay there until the end of June (paragraph 25d of the judgment).

The judgment comes with the general disclaimer that “formally, these proceedings for judicial review are at an early stage. All that I say on them is to be regarded as provisional and subject to further evidence, clarification, argument and consideration should the proceedings continue substantively”.

 

Источник

[British Lawyer]

14 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)

>>> Reasonableness, removals and children back in Court of Appeal spotlight: https://www.bailii.org/ew/cases/EWCA/Civ/2020/514.html

The vexed issue of reasonableness, removals and children is back in the judicial spotlight once more in a new Court of Appeal ruling, Runa v Secretary of State for the Home Department [2020] EWCA Civ 514.

The case involved an appeal against a refusal to grant Ms Runa, an overstayer, leave to remain in the UK, even though she was married to a British citizen and had two British children under the age of four.

The Court of Appeal stressed the critical importance of addressing the question of whether it is reasonable to expect children to leave the UK in such circumstances, building on a stream of recent cases tackling the same issue.

Ms Runa’s case

The background to the latest Court of Appeal case is that Ms Runa had been brought to the UK in 2006 from Bangladesh at the age of 14 on a visitor visa. She had lived here without leave ever since.

An application to remain in the UK based on her marriage was refused in 2015. By the time her appeal came before the First-Tier Tribunal in 2016, the couple’s first child had been born. Ms Runa won her appeal at this first stage but the Home Office took the matter to the Upper Tribunal. By this time, Ms Runa had given birth to a second child.

The Upper Tribunal agreed with the Home Office. It said the First-Tier Tribunal had failed to give proper reasons for its decision and dismissed Ms Runa’s appeal. She took her case to the Court of Appeal.

The Court of Appeal’s decision

Firstly, the Court of Appeal rejected the suggestion that section 117B(6) would always mean that wherever one parent has the right to live in the UK and the other parent does not, it will be unreasonable to expect the child to leave the UK:

    "If Parliament had intended to enact such a rule of law, it could easily have said so. Section 117B(6) does not enact a rule of law but rather calls for a question to be asked and answered on the facts of each particular case."

It also laid to rest a question raised in other cases: whether section 117B(6) is a standalone provision or whether it should be read as part of a broader human rights assessment. The Court of Appeal was clear that section 117B(6) must be read as a self-contained provision. This is because a parent’s conduct would inevitably play a role in any broader human rights analysis of the public interest – thereby conflicting with KO Nigeria’s direction that parental conduct is irrelevant to the section 117B(6) question.

The judgment clearly stated that the “the only question is focussed on the child: would it be reasonable to expect the child to leave the UK?” It said that if the answer to that question is “no”, then that is the end of the matter. But if the answer is “yes”, then there is still scope for a further exploration of human rights law set out in Article 8 of the European Convention on Human Rights. This would be a separate analysis, however.

Turning to the facts of Runa, the Court of Appeal found the Upper Tribunal had gone astray in its approach, by asking the wrong questions. Instead of asking whether it would be reasonable for the children to leave the UK, as required by section 117B(6)(b), it had instead asked:

    "whether it would be reasonable for the children to remain in the UK without their mother, and
    whether there would be “insurmountable obstacles” to maintenance of the family unit outside the UK, which was irrelevant.

Having failed to ask the right question, the Court of Appeal said, the Upper Tribunal had naturally failed to make the appropriate findings of fact in its decision.

Unfortunately for Ms Runa, this meant that despite succeeding in her challenge, the Court of Appeal decided to send her case all the way back down to the First-Tier Tribunal to make those findings of fact again.

Meanwhile, the decision is to be welcomed in the broader legal context. It clears up any lingering uncertainty over the interplay between human rights law and sections 117B and 117C, and shores up the Supreme Court’s direction that children should not be blamed for a parent’s actions.

[British Lawyer]

15 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)

>>> COVID19 and Immigration update

If you’re applying to stay in the UK long-term

You can apply from the UK to switch to a long-term UK visa until 31 May 2020. This includes applications where you would usually need to apply for a visa from your home country.

You’ll need to meet the requirements of the route you are applying for and pay the UK application fee.

This includes those whose leave has already been automatically extended to 31 March 2020.

You can apply online. The terms of your leave will remain the same until your application is decided.

As of 14 April, it is possible for people waiting for a decision on a student or work visa to start working/studying in the meantime, so long as they meet certain conditions: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents#inside-UK

Namely:

If you’ve applied for a Tier 4 visa and are waiting for a decision on your application

You can start your course or studies before your visa application has been decided if:

   - your sponsor is a Tier 4 sponsor
   - you have been given a confirmation of acceptance for studies (CAS)
  -  you submitted your application before your current visa expired and you show your sponsor evidence of this
  -  the course you start is the same as the one listed on your CAS
 -   you have a valid Academic Technology Approval Scheme (ATAS) certificate if required

If your application is eventually rejected as invalid or refused you must stop your course or studies.

If you’ve applied for a Tier 2 or 5 visa and are waiting for a decision on your application

You can start work before your visa application has been decided if:

 -   you have been assigned a Certificate of Sponsorship (CoS)
-    you submitted your application before your current visa expired and you show your sponsor evidence of this
  -  the job you start is the same as the one listed on your CoS

If your application is eventually rejected as invalid or refused your sponsor will stop sponsoring you and you must stop working for them.

>>> Deportation of Royal Marine with 14 years’ service upheld on appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2020/505.html

In LE (St Vincent and the Grenadines) v SSHD [2020] EWCA Civ 505 the Court of Appeal upheld a decision to deport a Royal Marine who had fought for this country in Iraq and Afghanistan over a 14-year career in the armed forces.

On 28 October 2016, the appellant was convicted of dishonestly making false representations. He tricked an elderly vulnerable woman into allowing him access to her bank account and emptied it of £20,000 to £30,000 for his own use. He was sentenced to 2 years imprisonment.

The Court of Appeal upheld the decision to remove the Appellant.

 

 

[British Lawyer]

Несмотря на COVID19 Home Office продолжает принимать иммиграционные заявления.

Вот копия Email из Home Office после подачи заявления клиентки на натурализацию (заявление AN).

Это так называемый Certificate of Applicaion (CoA):

То есть на данном этапе Home Office принимает заявления (= растет очередь; кто первый подал, того первым и рассмотрят), но записаться на сдачу биометрики и загрузить документы на сайт Home Office пока нельзя т.к. закрыты центры коммерческого партнера Home Office - Sopra Steria.

Хотя у одних из коллег произошел интересный случай - они подали заявление клиента по категории Tier 2(General), и его рассмотрели сразу же даже без биометрики и загрузки документов их клиента.

 

 

[British Lawyer]

23 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)

>>> Judge criticized for for adjourning case during cross-examination: https://www.bailii.org/uk/cases/UKUT/IAC/2020/127.html

The Upper Tribunal has reprimanded an immigration judge for granting an adjournment during the cross-examination of an appellant. In WA (Role and duties of judge) Egypt [2020] UKUT 127 (IAC), the President and Vice President of the Upper Tribunal provide guidance on how tribunal judges should manage hearings:

"During the course of taking evidence, a judge’s role has to be merely supervisory. In dealing with representatives, and in assessing their submissions, the judge is entitled to take a role as interventionist and active as he considers appropriate. But while evidence is being taken, he should limit himself to making sure that the evidence is given as well as may be. He should be alert to the witness’s welfare; he should check that there are no obvious problems with interpretation. He will ensure that there are no undue interventions from the other side, reminding representatives, if necessary, that they will have an opportunity in due course to ask their questions. … If there are any questions which are manifestly unfair, he might simply direct that they be not asked, or if already asked, not answered."

This explanation of the judicial function was triggered by First-tier Tribunal judge Peter Hollingworth deciding to adjourn a hearing during the cross-examination of the appellant to allow the appellant to prepare a new witness statement dealing with the Presenting Officer’s questions. The circumstances in which the adjournment decision came to be made are unclear; the judge recorded that the appellant’s lawyer had applied for one, but this was denied by counsel before the Upper Tribunal.

The Home Office argued that the adjournment “gave the claimant an opportunity to improve his case at a point where questions and cross-examination were getting difficult”.

Having reviewed the case, the Upper Tribunal concluded that the adjournment was inappropriate and unnecessary. The Presenting Officer was simply asking the appellant to clarify an aspect of his account in the usual way. The tribunal also identified an error of law in the determination itself, and for that reason remitted the appeal to the First-tier Tribunal.

The official headnote

1. During the taking of evidence a judge’s role is merely supervisory.

2. If something happens during a hearing that disrupts the normal course of taking evidence it is essential that the judge records what happened and why; who said what; and what decision the judge made and on what basis.

[British Lawyer]

24 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)

>>> High Court to rule on release of immigration detainees at high risk from COVID-19: https://www.bailii.org/ew/cases/EWHC/Admin/2020/950.html

In R (Samson Bello) v Secretary of State for the Home Department [2020] EWHC 950 (Admin), the High Court has refused to release a man at high risk of COVID-19 complications from immigration detention.

Instead, Mr Justice Chamberlain ordered a rolled-up hearing to take place on 27 April 2020. At that hearing the judge will consider the important issue of whether underlying health conditions, or “comorbidities”, indicating a higher risk of developing complications from COVID-19 should be recognised as Level 3 evidence under the Adults at Risk policy.

Once the Home Office accepts that a detainee has Level 3 evidence, it will only keep him or her in detention if removal will take place in the immediate future or there are significant public protection concerns. The resolution of this question will have huge implications for the use of detention during the coronavirus crisis.

Chamberlain J’s preliminary view is as follows:

    "As to [Mr Bello’s] vulnerability to COVID-19, there is a real question of interpretation as to whether every person identified as vulnerable by reason of comorbidities ipso facto falls to be categorised as a level 3 risk. That turns on whether it can be said of such a person that continued detention would be “likely to cause harm”. I see some force in Mr Buley’s suggestion that the answer to that question is yes, but I do not think the answer is obvious. The word “likely” can mean different things in different contexts."

The update may follow in due course.

[British Lawyer]

28 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)

>>> Upper Tribunal reminds visitors not to try and stay in the UK permanently:https://www.bailii.org/uk/cases/UKUT/IAC/2020/129.html

What happens when you enter the UK as a visitor and then apply to remain here so that you can stay with your British family members BEFORE* the visitor visa expires ?

What if plans change after entering the UK? What if, as the expiry of the visit visa approaches, a doctor advises against travel for medical reasons? What if there is a risk that the financial requirement for a spouse visa won’t be met and the person will not be able to return?

What if the person has never lived in their country of nationality (where they would need to apply from), having been born and raised in another country?

What if applying from abroad would be disruptive and not in the best interests of the applicant’s British child? Is it reasonable to expect that child to leave the UK?

May be the Home Office will be sympathetic to a change of circumstances, some may think ? The answer is "NO!".

In the recent case of Younas (section 117B(6)(b); Chikwamba; Zambrano) Pakistan [2020] UKUT 129 (IAC) the Upper Tribunal answers all of these questions, all in favour of the Home Office.

The official headnote

(1) An appellant in an Article 8 human rights appeal who argues that there is no public interest in removal because after leaving the UK he or she will be granted entry clearance must, in all cases, address the relevant considerations in Part 5A of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) including section 117B(1), which stipulates that “the maintenance of effective immigration controls is in the public interest”. Reliance on Chikwamba v SSHD [2008] UKHL 40 does not obviate the need to do this.

(2)    Section 117B(6)(b) of the 2002 Act requires a court or tribunal to assume that the child in question will leave the UK: Secretary of State for the Home Department v AB (Jamaica) & Anor [2019] EWCA Civ 661 and JG (s 117B(6): “reasonable to leave” UK) Turkey [2019] UKUT 72 (IAC). However, once that assumption has been made, the court or tribunal must move from the hypothetical to the real: paragraph 19 of KO (Nigeria) & Ors v Secretary of State for the Home Department [2018] UKSC 53. The length of time a child is likely to be outside the UK is part of the real world factual circumstances in which a child will find herself and is relevant to deciding, for the purpose of section 117B(6)(b), whether it would be unreasonable to expect the child to leave the UK.

(3)    The assessment of whether a child, as a result of being compelled to leave the territory of the European Union, will be a deprived of his or her genuine enjoyment of the rights conferred by Article 20 TFEU in accordance with Ruiz Zambrano v Office national de l’emploi (Case C-34/09) falls to be assessed by considering the actual facts (including how long a child is likely to be outside the territory of the Union), rather than theoretical possibilities.

*It is really strange, how some of the UK Immigration Rules are created. Just imagine: had Ms Younas overstayed, and been able to access the exception in paragraph EX.1, she would have met the rules. But because she applied whilst in the UK as a visitor, her application was refused. Why do the Immigration Rules encourage overstaying?

>>> Common Travel Area (CTA): https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjKxP-DtIjpAhWR0eAKHfpvB2sQFjAAegQIARAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F879600%2Fcommon-travel-area-v7.0ext.pdf&usg=AOvVaw3QIMuP7Ogfr9oTLhC14grd

Changes made to reflect the new legislation under which Biometrics are collected in Isle of Man

>>> Registration as a British citzien - children: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjP_duftIjpAhWQHRQKHWfPDxIQFjAAegQIAhAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F824429%2Fregistration-as-british-citizen-children-of-british-parents-v6.0ext.pdf&usg=AOvVaw2KqnKrMmqPVU2_wSJlUAVq

Added information about the fee waiver for a child born on or after July 2006 where the mother was married to someone other than the natural father.

 

 

[British Lawyer]

29 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)

>>> If your 30 day visa to work, study or join family has expired and you could not travel into the UK due to COVID19: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=1b9655f9-d25e-405b-b691-29aa736d7a48&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#outside-uk

If your 30 day visa to work, study or join family has expired

If your 30 day visa to travel to the UK for work, study or to join family has expired, or is about to expire, you can request a replacement visa with revised validity dates free of charge until the end of this year.

To make a request, contact the Coronavirus Immigration Help Centre (https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=1b9655f9-d25e-405b-b691-29aa736d7a48&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate#helpline). You’ll need to include your name, nationality, date of birth and your GWF reference number with ‘REPLACEMENT 30 DAY VISA’ in the subject line. If you’ve already contacted us about this, please let us know in your email.

You will be contacted when our VACs reopen to arrange for a replacement visa to be endorsed in your passport.

You will not be penalized for being unable to collect your BRP while coronavirus measures are in place.

This process will be in place until the end of 2020.

Note that this does not cover visit visas.

UK visa centres abroad are closed so the replacement wwill not be issued until they reopen.

>>> Asylum seeker to be sent back to Italy under Dublin III rules despite being interviewed in the UK: https://www.bailii.org/ew/cases/EWHC/Admin/2020/967.html

In R (Habte) v Secretary of State for the Home Department [2020] EWHC 967 (Admin), the High Court has decided that conducting a substantive asylum interview does not amount to assuming responsibility for the asylum claim under Article 17(1) of the Dublin Regulation.

The situation arose because the Home Office, apparently accidentally, conducted a substantive asylum interview of Mr Habte while it was going through the Dublin III procedure to remove him to Italy. The interview lasted four hours and involved 126 questions. Mr Habte might understandably have got the impression that the UK authorities had decided to consider his asylum claim here rather than removing him to Italy.

When directions were set to remove him to Italy, he challenged the decision by judicial review, arguing that the UK had assumed responsibility for his claim under Article 17(1) of the Dublin III Regulation.

 

[British Lawyer]

01 May 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)

>>> COVID19 & UK Immigration Update

Amendments to Home Office policy on automatic NHS extensions
The Home Secretary wrote to the House of Commons Home Affairs Committee to set out that it was partially extending its policy on automatic NHS extensions to other types of staff. The press release states:

"Frontline workers, including midwives, radiographers, social workers and pharmacists, with visas due to expire before 1 October 2020 will receive an automatic one-year extension. It will apply to those working both in the NHS and independent sector and include their family members.

...Any NHS workers who have paid for an unresolved application will be offered the option of a refund.

The Home Secretary has also confirmed family members and dependants of healthcare workers who sadly pass away as result of contracting the virus will be offered immediate indefinite leave to remain."

>>> High Court blow for EU citizens with pre-settled status trying to claim Universal Credit: https://www.bailii.org/ew/cases/EWHC/Admin/2020/998.html

The High Court has rejected an argument that the regulations making it difficult for Europeans with pre-settled status to access most public funds are discriminatory on the ground of nationality. The case is Fratila and Tanase v SSWP [2020] EWHC 998 (Admin).

Mr Justice Swift found that although the Social Security (Income-related Benefits) (Updating and Amendment) (EU Exit) Regulations 2019 do not constitute direct discrimination, they do amount to indirect discrimination. But he held that this discrimination was justified, and thus not unlawful.

>>> "Individuals with pre-settled status under the EUSS will be considered 'settled workers' following the end of the transition period.", Gabi Monk, Head of Euro and Settlement and EU Settled Status Customer Resolution Centre confirms

[British Lawyer]

06 May 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)

>>> You can carry on with an old-style EU law appeal even if granted settled status: https://www.bailii.org/uk/cases/UKUT/IAC/2020/124.html

The abandonment of an ongoing appeal seems to be a hot topic for the Upper Tribunal recently, with the case of Ammari (EEA appeals – abandonment) [2020] UKUT 124 (IAC) following on the heels of MSU and Aziz.

This time the facts concern an appeal against a refusal by the Home Office to issue a permanent residence card, based on a retained right of residence, and brought under the EEA Regulations (in this case the Immigration (European Economic Area) Regulations 2016).

After lodging the appeal the appellant, Mr Ammari applied for and was granted “settled status” under the EU Settlement Scheme, a form of indefinite leave to remain (ILR).

Meantime the First-tier Tribunal, unaware of the grant of ILR, had considered and refused Mr Ammari’s appeal against the refusal to grant a residence card. Mr Ammari was granted permission to appeal to the Upper Tribunal, where the abandonment issue reared its head.

At the Upper Tribunal the Home Office conceded that the First-tier judge had erred in refusing the appeal, but that this was immaterial since the grant of ILR served to abandon the appeal.

Not so, said the Upper Tribunal, based on two key aspects.

No abandonment in EEA Regulations appeals

Firstly, it noted that appeals concerning “EEA decisions” (such as the refusal of a residence card) were brought under the relevant EEA Regulations; primarily either the 2006 Regulations or the 2016 Regulations which replaced them, and not section 82 of the Nationality, Immigration and Asylum Act 2002.

Secondly, that since the drastic culling of the permitted grounds of appeal brought about by the Immigration Act 2014 (albeit with a myriad of savings and transitional provisions), it was not possible to cite EU law rights in an appeal under section 82 of the 2002 Act.

Prior to the 2014 Act changes, it was possible to appeal against an immigration decision, for example a decision to remove someone from the UK, but cite EU law rights in the grounds of appeal. In this way the appeal would be under the 2002 Act, but still invoke EU law rights.

The tribunal confirms that in an EU law appeal under the 2002 Act, there were two separate mechanisms for the appeal becoming abandoned if leave to remain was granted during the appeal. One was under section 104 of the 2002 Act, while there were also separate provisions within the EEA Regulations for abandonment of a section 82 appeal if a resident document was issued under those regulations.

Both of these mechanisms have now fallen away, because after the 2014 Act, the only way to assert EU law rights in an appellate process was through an appeal brought under the EEA Regulations. Neither the 2006 or 2016 Regulations contain a mechanism for an appeal brought under them to be statutorily abandoned if an appellant is granted leave to remain.

Critically, whilst both sets of regulations contain a list of provisions within the 2002 Act that can be “read across” as if applying equally to appeals brought under the regulations, section 104 (on abandonment) is not one of them. The case of Munday (EEA decision: grounds of appeal) [2019] UKUT 91 (IAC) has more details on this legislative device.

The upshot is that Mr Ammari getting ILR did not mean that his appeal against the earlier refusal was abandoned. The Upper Tribunal proceeded to decide the case in his favour.

The official headnote

i. Under the 2000 and 2006 EEA Regulations there was provision for appeals brought under section 82(1) of the Nationality, Immigration and Asylum Act 2002 to be treated as abandoned where an appellant was issued with documentation confirming a right to reside in the United Kingdom under EU law. Following the changes to the 2002 Act brought about by the Immigration Act 2014 that abandonment provision was revoked and never replaced.

ii. There has never been provision under any of the EEA Regulations for an appeal against an EEA decision brought under those Regulations to be treated as abandoned following a grant of leave to remain or the issuance of specified documentation confirming a right to reside in the United Kingdom under EU law.

iii. It follows that a grant of leave to remain following an application under the EU Settlement Scheme does not result in an appeal against an EEA decision brought under the 2016 EEA Regulations being treated as abandoned.

>>> New Home Office policy on Dublin III brings big changes for family reunification: https://www.gov.uk/government/publications/dublin-iii-regulation

On 30 April 2020 the Home Office published an updated policy on the Dublin III Regulation which has some significant changes for family reunification cases. The new policy includes updates on Article 9, Article 13.2 (entry and/or stay), Article 17.2 (discretionary clauses), working with local authorities in response to a take charge request involving unaccompanied minors, and on timescales.

 

 

[British Lawyer]

07 May 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)

>>> Lengthy absences from the UK can put EU pre-settled status at risk

For most people, the EU Settlement Scheme has largely lived up to its government billing as generous and straightforward, but confusion over permitted absences is likely to cause some European residents trouble down the line.

People with pre-settled status, in particular, need to be aware of the absence rules. If they are outside the UK for more than six months in any 12-month period during the five years it takes to qualify for full settled status, they will generally have to start the five years all over again. And if they return after 31 December 2020, they may lose the right to upgrade to settled status entirely.

Absences and the EU Settlement Scheme

The starting point is that EU citizens and their family members will qualify for settled status after completing “a continuous qualifying period of five years of residence” in the UK. Those living in the UK for less than five years qualify for pre-settled status instead, and can upgrade to settled status once they reach five years.

A “continuous qualifying period” is defined in Appendix EU of the Immigration Rules (the legal source of the Settlement Scheme) as being a period of residence that began before 11pm on 31 December 2020 and which has not been broken by one of the following:

    - Absence(s) from the UK exceeding a total of six months in any 12-month period, subject to some exceptions discussed below
    - A prison sentence
    - A deportation, exclusion or removal decision or order (in very general terms)

How to calculate absences

Firstly, it’s worth noting that the six-month cap is not limited to a single lengthy period outside the UK. It also applies to multiple trips totalling six months together.

Secondly, the rules refer to absence(s) during “any 12-month period”. In other words, the Home Office will not just be looking at travel during a calendar year. It instead considers a “rolling” period of 12 months, which “resets” with every trip. This means applicants who travel frequently will need to keep a very close eye on their travel.

Thirdly, such absences are only relevant to the “qualifying period” relied upon. Once the five-year qualifying period is complete, an applicant will only lose the right to apply for settled status if they spend five years or more outside the UK (a so-called “supervening event”).

The above seems clear. What is less straightforward is how exactly such absences are calculated. So when Appendix EU sets a six-month limit on absences, how many days is that?

What constitutes a “month” is not defined anywhere in Appendix EU, the Immigration Rules overall or in the pre-Brexit provisions for EU citizens, the Immigration (European Economic Area) Regulations 2016.

But other kinds of application may provide a clue. For the purposes of long residence applications for indefinite leave to remain, Home Office guidance defines a month as “30 calendar days”. This means that six months equals 180 days (the same limit applied to indefinite leave applications in the Tier 2 (General) and Tier 1 (Investor) categories). This is of course slightly less than half a year, which would be 182.5 days exactly.

It is advisable, therefoe, for anyone who’s not yet reached 180 days to play it safe and avoid exceeding that limit. But I can’t really imagine an application failing at 182 days, subject to any further clarification on this point.

When counting days, remember that only a whole day’s absence from the UK will count. So if you leave the UK on 2 March and return on 3 March, this won’t count as an absence. If you return on 4 March instead, it would be one day’s absence only.

Finally, it’s worth noting that at present there’s no need to actually list the exact dates of travel as part of a Settlement Scheme application. The applicant simply needs to self-certify they’ve spent no more than six months outside the UK in any 12-month period.

This suggests a more relaxed approach to absences than the Home Office adopts in other types of settlement. That said, the Home Office will have a record of travel where eGates have been used at airports and where travel has been stamped in a passport, meaning that honesty is always the best policy.

Exceptions to the six-month rule

There is some allowance for periods longer than six months in very narrowly defined circumstances. These include periods of absence on compulsory military service, a Crown service posting (or as a partner or child accompanying such a person) or time “spent working in the UK marine area”.

In addition, applicants are permitted “a single period of absence” that does not exceed 12 months and which is “for an important reason, such as pregnancy, childbirth, serious illness, study, vocational training or an overseas posting”. These are examples only. This means other situations may also qualify as an “important reason”: for example, caring for a terminally ill parent.

What about frequent travel for the work-related reasons ? It is difficult to see how this falls within one of the permitted exceptions as it’s repeat travel rather than “a single period of absence”. There is simply no generic allowance for “compelling occupational reasons” or travel that is an “unavoidable consequence” of the applicant’s career (as permitted in naturalisation applications, for example).

Evidence of the reasons for the absence will of course be required in all cases. This could take the form of hospital records, an employer’s letter or university confirmation of a study abroad requirement, for example.  

What happens if one has exceeded or is going to exceed the limit? 

Absence(s) of more than six months that don’t fall within one of the exceptions will break a person’s “continuous qualifying period”. This means that the person has to begin a new five-year continuous qualifying period from the date they return to the UK to get settled status.

But, for the moment at least, it does not mean the applicant needs to leave the UK or that the person’s pre-settled status comes to an end. In fact, pre-settled status only lapses through two years of absence from the UK. This is according to the EU Settlement Scheme website, probably reflecting section 13(4)(a) of the Immigration (Leave to Enter and Remain) Order 2000:

    "where the holder has stayed outside the United Kingdom for a continuous period of more than two years… any leave then remaining (where the leave is limited) shall thereupon lapse."

But there are two very important caveats. First, a person who has broken their continuous residence period will still need to reapply for pre-settled status when they return to ensure that they can ultimately upgrade to settled status. That is because pre-settled status can’t be renewed or extended, so an interruption will leave the person short of the five years they need to qualify with no way of making up the time.

The second important caveat is that the settled status clock cannot be restarted after 31 December 2020. That is because of how a “continuous qualifying period” is defined in Appendix EU: it has to begin before 11pm on that date. If someone with pre-settled status exceeds the permitted absences and returns to the UK after 31 December 2020, they will be unable to restart the settled status clock at all.

Someone in this situation would have to rely on the exceptions discussed above to argue that their continuous qualifying period had not been interrupted by the lengthy absence. It is possible that Home Office caseworkers will be sympathetic to absences related to coronavirus, or that it will make a new general exception making allowances for the pandemic. It is understood that the department is considering something along these lines. But if no announcement is made, the rules as written suggest that pre-settled status holders who return to the UK later than the end of this year will be in trouble if they have been gone for more than six months.

Possible sources of confusion

The Settlement Scheme is awash with various time periods that applicants need to consider, so to sum up:

    - EU citizens and their family member qualify for settled status after a “continuous qualifying period” of five years’ UK residence
    - A “continuous qualifying period” is broken by absence(s) of more than six months in any rolling 12-month period (unless that absence falls within one of the above exceptions)
    - Pre-settled status lasts for five years max. If a holder of pre-settled status breaks their continuous residence but returns to the UK before 31 December 2020, they must apply for a new grant of pre-settled status to allow them to complete the “continuous qualifying period” of five years required for settled status
    - Pre-settled status is only lost through two years of absence from the UK, but this is a red herring, for the reasons explained above
    - The right to upgrade from pre-settled status to settled status is lost if the continuous qualifying period is broken and the person returns to the UK after 31 December 2020
    - Once someone has already completed a “continuous qualifying period” of five years, they can spend up to five years outside the UK without losing the right to apply for settled status

All in all, absences may not be fatal to a settlement application or a person’s right to stay in the UK long term, but they certainly need to be approached carefully with a full understanding of the risks involved.

[British Lawyer]

08 May 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)

>>> High Court rules against government on no recourse to public funds: https://www.project17.org.uk/policy/strategic-litigation/intervention-in-legal-challenge-to-the-nrpf-policy

The High Court has ruled that the government must make it easier for migrants to access the welfare system if they are about to become destitute. In an oral ruling delivered yesterday, Lord Justice Bean and Mr Justice Chamberlain found that Home Office policy on no recourse to public funds is in breach of Article 3 of the European Convention on Human Rights.

A detailed judgment and order will follow, which will set out the steps the Home Office needs to take to comply with the judges’ ruling.

The case concerns the default no recourse condition imposed on migrants on a ten-year route to settlement. According to the oral judgment, caseworkers will in future have to lift the condition when the person “is not currently destitute but will imminently become so without access to public funds. The court made clear that the Home Office will still be able to impose the no resource condition “in the normal run of cases".

The no recourse to public funds issue has become particularly pressing during the coronavirus pandemic, which has seen many migrants thrown out of work and unable to get benefits. But the judges said they were not ordering any immediate change to Home Office policy. The court will decide on the exact terms of the order at a later date.

[British Lawyer]

15 May 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)

>>> “Slip rule” can be used to allow an appeal dismissed by accident: https://www.bailii.org/ew/cases/EWCA/Civ/2020/612.html

Interesting precedent when the asylum appeal was accidentally dismissed by a "slip of the pen", that is, when the judge wrote "appeal dismissed" rather than "appeal allowed" (wrong cut and past button ?).

>>> European Commission accuses UK government of violating EU citizens’ rights: https://ec.europa.eu/commission/presscorner/detail/en/inf_20_859

The European Commission has formally accused the UK government of breaching EU law on free movement of people. Brussels today launched “infringement proceedings” against the UK, the process used to force EU member countries to comply with their legal obligations.

The UK is no longer a member of the European Union, but the Commission points out that EU free movement law continues to apply here until the end of the post-Brexit transition period.

>>> Immigration Bill will return to the Parliament on 18 May for the 2nd reading

The second reading is when MPs have their first chance to properly debate the principle of a draft law. The Immigration Bill would put an end to EU free movement rights — although existing residents are largely protected by the EU Settlement Scheme — and is expected to pass easily given the government’s large majority in the House of Commons.

The bill’s full title is the Immigration and Social Security Co-ordination (EU Withdrawal) Bill 2019-21. The House of Commons Library has put together a useful briefing about it here: https://commonslibrary.parliament.uk/research-briefings/cbp-8706/

[fregat222]

Visa application issues could stop students reaching universities

The closure of visa application centres around the world could prevent international students from reaching university campuses this September, according to industry stakeholders.

The centres are used to collect biometric information, documents and, in some countries, function as places to conduct in-person interviews with applicants – all necessary steps before a visa can be issued.

 

The closures are causing concern for universities and education agents across the world many of who are calling for governments to introduce greater flexibility around application requirements, so students can get to their destination countries.

“There’s absolutely a risk that students won’t be able to get to the UK,” Vivienne Stern, director of Universities UK International, told The PIE News. 

“I think for us the question isn’t ‘will the September entry be affected?’ It is a question of how much and for how long.

“Also, how much will the flexibilities that we are able to put in place at the university level be able to overcome that set of difficulties?” she added.

Another concern is that when visa application centres do open, they will have a large backlog of applications that they need to process, something which could cause lengthy delays.

“The UK Home Office is well aware of the problems created by the closure of visa application centres,” said Stern.

“Up until now what we have been told is that they are pretty confident that when they are able to open up those centres, they will be able to, very quickly, deal with any backlog that has built up.

“But obviously the longer this goes on the more difficult that will be.”

However, the task of reopening centres and getting visas processed does not just depend on governments, according to Peter Yetton, head of VISA/assistant academic registrar at Glasgow Caledonian University in Scotland.

“You’ve got to get people back into the visa application centres,” he said.

“[Then ask] can they start working right away or do they need to be quarantined?”

Additionally, Yetton said, banks and financial sponsors will need to be available for assessment by the Home Office and UKVI.

“They will need to look and check, in some countries, the financial viability of that student [if they are] coming into the UK,” he added.

Catriona Jackson, chief executive of Universities Australia told The PIE that the organisation is aware of the “significant disruption to processing” caused by visa application centre closures.

“There are also a number of services relating to the visa application process that has been impacted by Covid-19 in many jurisdictions.

“These include access to panel doctors who conduct medical checks, English language facilities and biometric collection service delivery partners,” Jackson said.

Groups including UUKi and The American Council on Education are advocating for flexibility from their respective governments when it comes to requirements such as in-person interviews and biometrics.

“It is something we have been communicating with the department of state and asking for flexibility,” said Sarah Spreitzer, director, department of government and public affairs at ACE.

“So, for instance, could they allow for a virtual interview for a student applicant? Could they waive the in-person interview for those applicants that meet all of the other requirements and don’t appear to be ineligible?

“They’ve been doing that for some other non-immigrant visas, because of the fact that a lot of the consulates are closed,” she said.

Universities are currently preparing for outcomes where students are not able to reach campuses.

Plans include students starting their courses online before coming onto campus for face-to-face teaching once they are able to travel.

But there is a risk that the uncertainty around visa applications will make students less likely to decide to study abroad, according to Sushil Sukhwani, director of majorIndian agency Edwise.

Sukhwani also explained that commercial issues might arise around agent/university contracts and online/remote learning as a substitute.

“There’s a possibility that institutions may not have worded in their contracts that commission will be paid to agents for online programs, and whether the commission will be the same or less.

“People haven’t even started looking at that… but that is a potential concern,” he added.

The PIE approached the UK’s Home Office, the US Department of State and Canada’s department for Immigration, Refugees and Citizenship for comment but did not receive a reply prior to publication.

The PIE Video this week includes interviews with Stern and Sukwhani on this topic.

 

Источник

[British Lawyer]

18 May 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)

>>> It just got more difficult for Europeans to become British citizens: https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance

The Home Office has decided to make it more difficult for European residents to become British citizens. EU citizens with settled status who apply for naturalisation now have to provide evidence that they have been living in the UK legally, according an update to government nationality policy released on 15 May.

One of the requirements for naturalisation as a British citizen is to have lived in the UK for five years (or three years if married to a British citizen). Time living here in breach of UK immigration law doesn’t count. The Home Office has long taken the view that EU citizens physically present in the UK but who do not have a right of residence under EU law are in breach of UK immigration law. Unknowingly lacking a right to reside is surprisingly common — many people without comprehensive sickness insurance were caught out by this in the past.

Because of Brexit, European residents and their family members have been offered immigration status under UK law (instead of EU law). Getting the new “settled status” does not require proof of a previous right to reside — it is mostly based on simple presence in the UK.

But when people with settled status come to apply for citizenship, the Home Office is now saying that the right to reside issue must be dealt with in their application. Simply having settled status is not enough, in this context. Settled status will serve as proof of being free of immigration time restrictions (another of the naturalisation requirements) but will not do in terms of showing that the person’s period of residence in the UK was in accordance with immigration law.

The updated guidance says:

    "An EEA or Swiss citizen or their family members who have a 5 years’ continuous qualifying period of residence in the UK and Islands when they apply to the EU Settlement Scheme will be eligible for settled status… However, this grant of settled status (also know as indefinite leave to enter or remain) will not confirm that they were here lawfully under the EEA Regulations during that time, as defined by the British Nationality Act 1981 as this is not a requirement of the EU Settlement Scheme. You may therefore need to request further information from the applicant to demonstrate this."

The EEA Regulations contain the detailed rules on how EU free movement law operates in the UK.

The guidance goes on to tell officials:

    "You must assess whether the individual has been here lawfully during their 3 or 5 year residential period prior to pre-settled status or settled status, by considering on the balance of probabilities whether they were here:

        as a qualified person (such as a worker, student, self-employed, selfsufficient, retired or incapacitated person)
        as the family member of such a person.

    Evidence of this can include API data or documents previously submitted to satisfy their lawful residence. Where appropriate, you must also be satisfied that the person was lawfully in the UK, with comprehensive sickness insurance (CSI)."

Later on, the document does suggest that there is discretion to overlook some technical breaches of the EEA Regulations:

    "Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assess[m]ent about whether discretion should be exercised in their favour."

On exercising discretion, the policy suggests that being in breach of the EEA Regulations is not as bad as entering the UK illegally or overstaying on a visa. But Europeans — assuming they are aware of their precise legal status in the first place — will have to “provide sufficient evidence to justify discretion being exercised in their favour”. The effect will be to make it more difficult for EU citizens to become British than if settled status were simply accepted as evidence of lawful residence.

By contrast, if the person has previously secured a permanent residence card, that will — unlike settled status — serve as proof of five years’ lawful residence.

The issue will also affect citizens of Norway, Iceland, Liechtenstein and Switzerland.

>>> Guidance ECB06: entry clearance fees: https://www.gov.uk/government/publications/entry-clearance-fees-ecb06/ecb06-entry-clearance-fees

This has been updated to provide a new procedure to request a fee waiver for entry clearance applications.

>>>  Offshore wind workers: Immigration Rules concession 2017: https://www.gov.uk/government/publications/offshore-wind-workers-immigration-rules-concession-2017

Concession for workers joining a construction vessel operating in UK territorial waters.

This guidance explains the terms of the concession for non-European Economic Area (EEA) nationals who are joining vessels engaged in the construction and maintenance of offshore wind projects in UK territorial waters.

>>> Short term students Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=2ahUKEwi8qOyH3rrpAhWqA2MBHdy3Dx8QFjAAegQIAxAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F882103%2Fshort-term-students-v12.0ext.pdf&usg=AOvVaw1wilBJaaST-VVpNAoF3MFZ

The list of accredited institutions that a short-term student must be accepted onto a course of study with has been updated.

>>> 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&ved=2ahUKEwjO09PY3rrpAhUIEBQKHcRNCD8QFjAAegQIBBAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F881563%2Ffamily-life-_as-a-partner-or-parent_-private-life-and-exceptional-circumstances.pdf&usg=AOvVaw2y7AJJqKA7v6TNmudUlREb

Changes made to reflect need to have permission to disclose Family Court documents.

[British Lawyer]

21 May 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)

>>> People born in Northern Ireland get improved family reunion rights

The DeSouza case raised complex issues of citizenship, identity and implementation of the Good Friday Agreement, but at the heart of the case was an immigration matter and a family who have faced a brutal uphill struggle to live together in the UK, like so many others. Last week, the bravery and perseverance of Emma and Jake DeSouza paid off when they achieved a rare concession from the Home Office, which will have significant impacts for families like them.

The DeSouza litigation

The facts of DeSouza may be known to some. The case was centred on an application by Jake, a US citizen married to Irish citizen Emma, for permission to live in the UK — relying on European Union law. Their application was refused by the Home Office because Emma was born in Northern Ireland. She was therefore considered a dual British and Irish national and excluded under the finding in Case C-434/09 McCarthy.

Emma contends that she is an Irish national only and that this right is protected by the Good Friday Agreement, which allows for the people of Northern Ireland to identify themselves and be accepted as Irish or British or both. The subsequent appeal was successful in the First-tier Tribunal but overturned in the Upper Tribunal. It raised issues of incompatibility between Home Office policy, the application of the British Nationality Act and the Good Friday Agreement.

The political campaign

A vocal campaign led by Emma and Jake gained momentum. Political support followed, with the Irish government, Westminster politicians and parties in Northern Ireland speaking out in support of the case. The joint committee of the Northern Ireland Human Rights Commission and the Irish Human Rights and Equality Commission also supported the case.

In January 2020, the New Decade, New Approach deal for the restoration of the NI devolved institutions made specific immigration commitments on the right to family reunion for the people of Northern Ireland “underpinned by the birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose.”

Many felt that these commitments were a form of peace offering from the UK government, hoping to address the immigration issues at the core of DeSouza, while avoiding the more awkward issues of imposed British citizenship and compliance with the Good Friday Agreement. This proved accurate when the political commitment were translated into law through a statement of changes to the Immigration Rules in May 2020.

The family reunion concession

The changes can be summarised as follows:

    - The definition of a “relevant EEA citizen” under Appendix EU will be amended to include a “relevant person of Northern Ireland”
    - A relevant person of Northern Ireland is, in turn, defined in line with the “people of Northern Ireland” under the Good Friday Agreement
    - A relevant person of Northern Ireland is therefore a British citizen, an Irish citizen or a dual British and Irish citizen who was born in Northern Ireland (and at the time of their birth had at least one parent who was a British citizen; or an Irish citizen; or a dual British and Irish citizen; or who was otherwise entitled to reside in Northern Ireland without any restriction on their period of residence)
    - This will mean that qualifying family members of the people of Northern Ireland will be able to apply for immigration status under the EU Settlement Scheme. Family members will be eligible to apply regardless of whether their family member is British, Irish or a dual Irish/British national;
    - This will also apply to a qualifying person of Northern Ireland living in England, Scotland and Wales.
    - The changes will take effect on 24 August 2020. As the EU Settlement Scheme is open for a limited period, applications must be made before the deadline (currently 30 June 2021).

These changes address the underlying immigration issue by allowing Irish citizens born in Northern Ireland to use the EU Settlement Scheme. It also expands the scheme’s coverage to British and dual British/Irish nationals born in Northern Ireland. This respects the principle of equality of treatment under the Good Friday Agreement and ends the need for renunciation of British citizenship by British and dual British/Irish nationals who want to exercise EU family reunion rights.

There are limitations to this concession. Since the scheme will not open until August, there are questions over what qualifying family members who have visas expiring before that date should do. The scheme is also time limited to the end of the EU Settlement Scheme, meaning this is a very brief window of opportunity. It is also not clear what provision will be made for people who renounced British citizenship due to the previous policy, often on Home Office advice.

Politics trumps law

The changes have been hailed as a victory for Emma and Jake, and welcomed by figures such as Taoiseach Leo Varadkar and institutions such as the Northern Ireland Human Rights Commission. Emma and Jake have today confirmed that they will not be proceeding to the Court of Appeal:

    "We had hoped our legal challenge could help right that wrong and force the British Government to amend statute to fall in line with its international obligations. But legally, with this concession from the Home Office, we regrettably cannot proceed. This disappointment, however, should not overshadow what is an unbridled win worth celebrating- families have and will continue to be reunited thanks to these changes and everyone in Northern Ireland will benefit from the government’s recognition of the rights provided under the Good Friday Agreement."

The couple say that while these changes address the immigration issue at the centre of their case, they will continue to campaign on the broader issues raised: full implementation of the Good Friday Agreement and amendment of the British Nationality Act 1981.

The impact of these changes on families who would otherwise be separated by the UK Immigration Rules can’t be overstated. They have — if only for a brief period — accessible, free and fair family reunion rights.

So the people born in (or with family born in) Northern Ireland can now take advantage of this rare opportunity. The fact that British citizens and dual British/Irish citizens born in Northern Ireland will now have access to broader family reunion rights than their counterparts born in Great Britain should also highlight the inhumanity of the UK Immigration Rules — as well as the ability of the Home Office to provide better, when it wants to.

>>> Immigration application fee destitution policy found unlawful

The Upper Tribunal has found that the Home Office’s policy for waiving the immigration application fee for destitute immigrants — the fees can add up to thousands of pounds for a family — is unlawful and needs to be widened. The judgment is Liggison v Secretary of State for the Home Department JR/2249/2019. The case was clearly considered an important one at the Home Office.

The family of five at the heart of the case would have had to pay fees of £7,665, including the Immigration Health Surcharge. They were unlawfully resident (although of course the point of the application was to become lawfully resident) and had no source of income; they simply could not afford to pay the fees. This meant they were locked out of lawful status by the cost of entry.

The Home Office’s original position, until 2012, was that no exceptions at all would be made to the absolute requirement to pay an application fee. Having lost a case called Omar and then subsequent litigation as well, the Home Office introduced a very limited policy on when fees might be waived. Under this policy, an applicant would need to prove that he or she would become destitute if the fee were to be paid.

The family involved in this case could prove they could not afford the fees but they could not prove they would be destitute. This was because they were accommodated and supported by friends and family members who would continue to support them come what may.

What next?

The Home Office sought and was granted permission to appeal to the Court of Appeal. This means that the old policy will probably continue to be applied by the Home Office, at least unless the appeal is abandoned (which is possible given that the policy in question is such a mess) or an outcome from the Court of Appeal is known, which could take months or even years. So, in the short term, there is no immediate change.

If the outcome of this case sticks, it means an unknown number of people have had their applications for fee waivers rejected on the basis of an unlawful policy. There is an argument that if they subsequently somehow managed to pay the fee they might be entitled to a refund. This seems pretty dubious given that actually finding the money seems a fortiori proof that they could somehow afford it.

[British Lawyer]

25 May 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)

>>> Immigration Health Surcharge to be waived for NHS and social care workers

A public announcement should follow shortly.

The surcharge — not actually a payment for using the NHS but a tax on visas collected at the point of application — is currently £400 a year but is due to rise to £624 in October 2020.

 

[British Lawyer]

27 May 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)

 

>>> Part of no recourse to public funds policy declared unlawful: full judgment out - https://www.bailii.org/ew/cases/EWHC/Admin/2020/1299.html

 

No recourse to public funds (‘NRPF’) is a condition imposed on the majority of UK visa holders preventing them from claiming benefits. In R (W, A Child By His Litigation Friend J) v Secretary of State for the Home Department & Anor [2020] EWHC 1299, the High Court found the Home Office’s policy on imposing NRPF under paragraph GEN.1.11A of Appendix FM to be unlawful.

 

Who does the judgment apply to?

 

More specifically still, the judgment concerns people granted leave to remain in the UK under paragraph D-LTRPT.1.2 of Appendix FM, in recognition of their family life as a parent.

 

Such people are granted leave with no recourse to public funds and placed on a ten-year route to settlement. This means that it will take ten years for them to become eligible for indefinite leave to remain. During those ten years, they must renew their visa every 2.5 years. The cost of doing so is currently £2,049.20 per person per renewal, excluding legal fees, and set to increase further from October 2020.

 

It is possible for destitute people to ask the Home Office to lift the NRPF condition and to waive visa fees, but such applications are onerous, difficult and slow. Even if successful, NRPF-lifting requests must be repeated each time a visa renewal application is made. The cost of renewal places a significant and recurring financial strain on families who are often vulnerable and unable to obtain high-paid work.

 

What now?

 

The court ordered the Home Office to publish a revised policy instruction within seven days of the date of the judgment — which gives officials until tomorrow, 28 May.

 

The new version is expected to clarify that a caseworker is under a duty either not to impose or to lift an NRPF condition if they consider that the applicant is at imminent risk of destitution without recourse to public funds. The practical effect ought to be a lessening of the burden on those applying to have NRPF lifted.

 

The judgment deals expressly with paragraphs GEN.1.11A and D-LTRPT.1.2. These paragraphs only relate to those granted leave as a parent under Appendix FM. There are many other immigration rules which lead to human rights visas and which result in imposition of an NRPF condition, including those leading to leave as a spouse or based on private life. The private life NRPF rules at paragraph 276A02, for example, mirror those at GEN.1.11A and rely on the same policy instruction.

 

One would hope that the policy changes implemented as a result of this judgment will be applied across the board and not limited in scope to those granted leave under the parent category. A positive sign in that respect is that the department has already amended an NRPF webpage aimed at everyone, not just parents. We eagerly await the revised instruction.

 

>>> Family court judge orders refugee to disclose her asylum records: https://www.bailii.org/ew/cases/EWHC/Fam/2020/1036.html

 

The High Court has looked further at when details of an asylum claim can be shared in family proceedings. The judgment in R v Secretary of State for the Home Department (No. 2) [2020] EWHC 1036 (Fam) applies previously established principles to a particular set of circumstances. It follows on from a previous hearing in the same case, R v Secretary of State for the Home Department (Disclosure of Asylum Records) [2019] EWHC 3147 (Fam).

[British Lawyer]

01 June 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)

 

>>> Home Office softens no recourse to public funds policy following High Court defeat: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance

 

Revised Home Office guidance should make it easier for migrants with family visas to claim benefits if necessary. The change follows a recent High Court decision, along with the wider context of no recourse to public funds (NRPF).

 

As of today, the updated policy includes the following new paragraph:

 

"The position in Appendix FM

 

Paragraph GEN.1.11A provides the basis in the Immigration Rules for exceptions to the wider policy on migrants not having recourse to public funds. In all cases where an applicant has been granted leave, or is seeking leave, under the family or private life routes the NRPF condition must be lifted or not imposed if an applicant is destitute or is at risk of imminent destitution without recourse to public funds."

 

>>> Civil Legal Aid (Remuneration) (Amendment) (Coronavirus) Regulations 2020 (the Amendment Regulations) are being now challanged.

 

The Amendment Regulations were laid before parliament on 18 May 2020 and will come into force on 8 June 2020. They are designed to respond to the introduction of a new procedure at the First-tier Tribunal (Immigration and Asylum Chamber) which specifies that immigration and asylum appeals are to be decided by remote hearings where possible, and that Appellants must file and serve a detailed skeleton argument before the Tribunal decides whether a hearing is necessary, and if so, whether that hearing can be carried out remotely using video-link technology.

 

The Amendment Regulations amend the fee regime for legal aid providers operating under the new Online Tribunal Procedure, but does not adequately reflect the additional work solicitors and barristers must undertake to properly represent their clients. Without consultation, or any apparent evidence base, the amendment increases the likelihood that legal aid providers will be undercompensated for their work and places access to justice at risk.

 

[British Lawyer]

02 June 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)

>>> Legality of the EU citizen's previous residence in the UK in relation to Nationality applications by the EU citizens

During the three (3 years - if married to a UK citizen)/five year qualifying period an EEA citizen must not have resided in the UK in breach of the UK’s immigration laws. The EEA citizen could be forgiven for assuming that European citizens, with the right to freedom of movement, are unlikely to breach the UK’s immigration laws.

However, EU free movement law has always required economic activity: work, job seeking, study or self-sufficiency. If studying or self-sufficient, you require Comprehensive Sickness Insurance. This is a requirement many were (potentially still are) unaware of and in practice non-compliance is widespread.

The paradoxical nature of the requirement (EU citizens are still entitled to use the NHS) and several controversial refusals in early 2017 led to the legality rule not being applied in the Settlement Scheme context.

But in May 2020, the Home Office confirmed in updated policy guidance that the Comprehensive Sickness Insurance requirement will be applied in the citizenship context. As a result, EU citizens who have not worked in the UK continuously for five years need to have held private health insurance during the three/five year qualifying period. If they do not, they are likely to be refused citizenship.   

Can the Home Office do this?

This policy (although unwelcome) appears to me to be lawful. The definition of “breach of immigration laws” is surprisingly broad and includes non-compliance with the Immigration (EEA) Regulations 2016 which implement EU free movement law in the UK. A variety of cases have considered what it means to be in the UK “unlawfully” or “in breach of immigration law”, but cannot override clear statutory wording. Particularly when there has been a power to remove EU citizens who do not comply with EU free movement law since 1994 (albeit one that is rarely exercised).

This requirement will not cause a problem for:

    - People who have permanent residence documents already;
    - People who have worked for any continuous five year period in the UK and have therefore acquired permanent residence (it does not need to be the same five year qualifying period relied on for the purposes of your citizenship application; a historic period will do as long as you have not subsequently been absent from the UK for two consecutive years);
    - People who have been working continuously during the three/five year qualifying period prior to their citizenship application (although an earlier breach may be relevant to the good character requirement which covers the last ten years); and
    - People who apply for citizenship in the future, having been granted settled status after five years of pre-settled status.

This requirement will cause a problem for others, who need to rely on a period of study or self-sufficiency but lack Comprehensive Sickness Insurance. They can be granted settled status, but will encounter problems when applying for citizenship.

The Home Office recognizes this problem, and suggests in its guidance to decision makers that discretion may be exercised in an applicant’s favour in appropriate cases:

    "Following the introduction of the EU Settlement Scheme you may increasingly see applications from EEA or Swiss nationals who have not fully complied with additional requirements under the EEA regulations, such as having comprehensive sickness insurance where they needed it, and who may therefore have been in breach of immigration law. When considering such applications you should take into account all the facts surrounding such a breach and make a full assessment about whether discretion should be exercised in their favour."

One of the examples of when it may be appropriate to exercise discretion is:

    "the breach was because the applicant did not meet an additional/implicit condition of stay, rather than illegal entry or overstaying, such as an EEA or Swiss national not having CSI and can provide sufficient evidence to justify discretion being exercised in their favour.".

It is unclear what the last bit is supposed to mean.  Saying “we will exercise discretion when there is sufficient evidence to justify discretion being exercised” is no use to anyone, really. Needless to say, innocent oversight or blissful ignorance will be treated more favourably than wilfully ignoring the requirement.

 

 

[British Lawyer]

04 June 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)

>>> No European Convention on Human Rights jurisdiction over humanitarian visa refusal: https://hudoc.echr.coe.int/eng#{"itemid":["001-202468"]}

The European Court of Human Rights has declined an invitation to extend the jurisdiction of the Convention to cover applications made for a visa to enter a given country and claim asylum. In M.N. and Others v. Belgium (application no. 3599/18), the Strasbourg court ruled that an application brought by a Syrian family living in Lebanon, who had been refused humanitarian visas by the Belgian government, was inadmissible. Therefore the court could not consider their claim that the refusal violated Article 3 ECHR.

This is an important case; the United Kingdom was not even a party but still sent a team of six lawyers including the then Attorney General Geoffrey Cox QC, Sir James Eadie QC and David Blundell QC to defend the Belgian government’s position (!).

As the result of the judgement, it is difficult to avoid the conclusion that the most prudent course of action is for a refugee to illegally enter a signatory state, get well away from the border, and then approach the authorities to claim asylum and rely on Article 3.

[British Lawyer]

11 June 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)

>>> Useful article on what to do if one's BRP is lost abroad

See https://www.rca.ac.uk/studying-at-the-rca/support/international-student-support/lost-biometric-residence-permit-brp-cards-passports/

[British Lawyer]

12 June 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)

>>> UK immigration appeals statistics: https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-january-to-march-2020?utm_source=dafd65c2-8f8d-4f8f-81a6-677b8fb4ed70&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

The number of immigration appeals decided by the First-tier Tribunal has fallen almost 70% over the past decade, new Home Office statistics show.

The 10 years since the tribunal was set up, replacing the old Immigration Appeals tribunal, has seen the number of cases fall from over 160,000 in its first year of operation to 50,000 last year. Put another way, First-tier Tribunal judges decided less than one third the number of cases in 2019/20 than they did in 2010/11. The number of appeals lodged, rather than decided, follows a similar trend.

The Upper Tribunal has also recorded a record low number in the number of appeals decided, at 5,000 cases. That compares to 7,000 a decade ago and 8-9,000 for most years in between. It is also deciding far fewer judicial review cases than a few years back.

Exactly 50% of all appeals in the First-tier Tribunal succeeded last year, in line with the recent trend. Each of the main categories of appeal — asylum, human rights and EEA free movement — had around the same success rate. In previous years, asylum appeals were more likely to fail than the other types, but all have now converged on close to 50%.

Waiting times for an appeal decision have continued to fall. It used to take a year, but in the last quarter stood at 28 weeks. This is unlikely to survive the coronavirus pandemic.

 

[British Lawyer]

12 June 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)

>>> Planning Article 10 "visa-free" entry into the UK ? Beware !

See https://www.tripadvisor.com/ShowTopic-g186216-i15-k12236471-Entering_the_UK_with_a_Article_10_residence_card_A_HOAX-United_Kingdom.html

This is not an isoltaed incident. We have had a number of caller reporting being turned back at the UK borders.

You have been warned.

Unsure of what to do ? The Legal Centre can help and advise you accordingly: https://legalcentre.org/Initial-Consultation.html

>>> I have a pending appeal yet I have now reached the 10 years of lawful residence in the UK. Can I apply for ILR now ?

The long residence Rules: https://www.gov.uk/government/publications/long-residence

The quote:

     "The applicant completes 10 years continuous lawful residence while awaiting a decision of an appeal

    A person may complete 10 years continuous lawful residence whilst they are awaiting the outcome of an appeal and submit an application on this basis. Under sections 3C and 3D, it is not possible to submit a new application while an appeal is outstanding. However, the applicant can submit further grounds to be considered at appeal.

    If the applicant has an outstanding appeal against a decision to refuse leave to remain or indefinite leave to remain, and submits an application for long residence, you must void the long residence application and refund the fee. You must create a file or sub-file and mark it ‘PRIORITY’. You must send the file or sub-file to the presenting officers unit (POU) dealing with the appeal. You must send a letter to the applicant or their representative informing them their application has been linked with their outstanding appeal. You must use Doc Gen letter ICD.3207 for this purpose.

    If the appeal is against a decision to curtail or revoke, and the immigration decision was made on or after 31 August 2006, you must follow the same process but you must use Doc Gen letter ICD.3258."