Важные судебные решения и новости для иммигрантов

[British Lawyer]

>>> Immigration Appeals to be lodged online and be conducted via video links: https://www.judiciary.uk/publications/immigration-and-asylum-tribunal-chamber-presidential-practice-statement-note-covid-19-pandemic/

 

The Statement states that all appeals to the First-tier Tribunal must be lodged online using the MyHMCTS portal, unless it is not reasonably practicable or the case falls within a list of exceptions.

 

There are three annexes to the new practice statement:

 

    Directions on cases lodged using MyHMCTS

    Different directions on cases not lodged using MyHMCTS

    Directions for appellants with no lawyer

 

[British Lawyer]

17 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)

>>> Extended family members can’t have any breaks in dependency on EU sponsor: https://www.bailii.org/uk/cases/UKUT/IAC/2020/188.html

The Upper Tribunal has confirmed that extended family members need to show there has not been a break in their dependency on their EU citizen sponsor.

The official headnote

"The words “and continues to be dependent” in regulation 8(2)(c) of the Immigration (European Economic Area) Regulation 2006, properly characterised, require an applicant to establish that there has not been a break in their dependency on the EEA national sponsor."

Whats next ?

This decision is likely to have quite a damaging impact on the rights of extended family members. In effect, once you arrive in the UK, you are expected to be immediately dependent or residing with the EU citizen sponsor (even if you are on a different category of visa). That fallacy throws out so many questions:

   - What would stop an extended family member from leaving the UK and entering again solely to meet the definition of joining their EU national sponsor and then becoming dependent?
   - Does this mean that most other extended family members who are on a different type of visa will be prevented from applying for a residence card from within the UK? Almost all categories of visas would require evidence of having suitable accommodation and being able to maintain oneself without recourse to public funds. If, for example, a foreign national student in London was living here with his parents paying his fees, and he later decides to move in with his EU national brother, he would be prevented from applying because he would not have been able to show dependency or residence with his brother from the moment he arrived in the UK.
   - What happens if an extended family member takes up a temporary job for a month and didn’t rely on family support? Would they stop qualifying? What constitutes a “break in dependency”?

And while the judgment is about the EEA Regulations, it also has implications for extended family members who are looking to apply for pre-settled or settled status. Under the rules in Appendix EU, a “dependent relative” needs to have a “relevant document” (basically a residence card or a permanent residence card). Those documents can only be issued under the EEA Regulations — so if prevented from qualifying for them, dependent relatives are essentially shoved out of the EU Settlement Scheme as well.

[British Lawyer]

Сегодня, 19-09-2020, появилась возможность взять слоты для сдачи биометрики с 29-06-2020 в TLS центрах России.

Обратите внимание !

[British Lawyer]

25 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)

>>> CJEU: permanent residence card exempts family member from visa requirements: http://curia.europa.eu/juris/document/document.jsf;jsessionid=AA055E2F9BD5C5418C046501FEFD011B?text=&docid=227563&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=5945167

In the case of C‑754/18 Ryanair the Court of Justice of the European Union has concluded that a non-EU national who holds a permanent residence card from one EU state, is under EU law, exempt from any domestic law requirement to hold a visa to enter another EU state. The judgment effectively overrules the Court of Appeal judgment in Ryanair v Secretary of State for the Home Department [2018] EWCA Civ 899.

The CJEU reaches this conclusion despite there being no express provision to this effect in Directive 2004/38: only a residence card is specifically mentioned. This was no barrier to the CJEU, which considered it absurd and counterproductive for one of the benefits of a residence card to be lost when the status is upgraded to permanent residence.

The court also finds that other member states must accept a permanent residence card issued in a different member state as proof that status is genuinely held. This runs contrary to the current Home Office interpretation of the significance of possessing residence documentation issued in EU countries.

The judgment is an important one for airlines and for passengers, given that carrier liability laws were until now effectively forcing airlines to deny boarding to non-EU family members with permanent residence cards and no visa.

>>> Judge intervenes to end Home Office dithering over bail accommodation: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1479.html

In the case of Merca v SSHD [2020] EWHC 1479 (Admin) the High Court ordered the Home Office to release the claimant within four days. One week and two extension of time requests later, the Home Office has now complied with that order.

This was all too quick for the authorities to get organised and unsurprisingly the Home Office applied twice for extensions of time – both times blaming probation. After the second extension application, probation confirmed the address as suitable and the claimant was released.

While not a hugely significant case, it’s encouraging to see the High Court taking a proactive approach to accommodation delays, particularly where probation services are involved. The decision may also be instructive for future “grace period” cases where delays are down to failures in coordination between the Home Office and probation.

[British Lawyer]

15 July 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)

>>> The COVID19 automatic visa extensions are unlekely to be extended beyond the 31st July 2020: https://twitter.com/ILPAimmigration/status/1282996391418232834

>>> Health and Care Visa launches on 4 August 2020:https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-2-worker

The new Health and Care Visa for foreign medical workers will open for applications on 4 August 2020, the government has announced.

The visa is not a new route as such, but a species of Tier 2 (General) visa — the announcement comes in a new Part A to the Tier 2 policy guidance, added on 14 July. It is also misnamed in the sense that it is only for “qualified doctors, nurses and allied health professionals who have been trained to a recognised standard” — not for care home workers. The full list of eligible professions is:

   "2112 – Biological scientists and biochemists
    2113 – Physical Scientists
    2211 – Medical Practitioners
    2212 – Psychologists
    2213 – Pharmacists
    2214 – Ophthalmic Opticians
    2215 – Dental practitioners
    2217 – Medical Radiographers
    2218 – Podiatrists
    2219 – Health Professionals not elsewhere classified
    2221 – Physiotherapists
    2222 – Occupational Therapists
    2223 – Speech and Language Therapists
    2229 – Therapy professionals not elsewhere classified
    2231 – Nurses
    2232 – Midwives
    2442 – Social Workers
    3213 – Paramedics
    
Tier 2 Policy Guidance, Paragraph A3"

To be eligible for a Health and Care Visa, the worker must be offered one of the above jobs, either for an NHS trust / health board or for one of several other medical and social care organisations listed in the guidance, and meet all the usual Tier 2 (General) criteria.

Reduced application fees are promised. The fees table has not yet been updated to say what they are, but the basic application fee has previously been reported as £464. Applicants should also be exempt from the Immigration Health Surcharge.

Decisions are to be fast-tracked, “with the aim that the vast majority are processed within three weeks”.

[British Lawyer]

17 July 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)

>>> English language testing centres in the UK

Some English Testing Centres are resuming services. For more information on how you can book your English Language Test, contact either:

- Trinity College London: https://www.trinitycollege.com/qualifications/SELT/UKVI
- International English Language Testing System (IELTS): https://www.ielts.org/book-a-test/find-a-test-location/location-list/united-kingdom/ukvi
- LanguageCert website: https://www.languagecert.org/uk-visa-exams
- Pearson Test of English: https://pearsonpte.com/

[British Lawyer]

21 July 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)

>>> Hospital order not a conviction for purpose of foreign criminal definition: https://www.bailii.org/uk/cases/UKUT/IAC/2020/225.html

The technical point, or ratio, of MZ (Hospital order: whether a ‘foreign criminal’) [2020] UKUT 225 (IAC) is that a hospital order under section 5(1)(b) of the Criminal Procedure (Insanity) Act 1964 is not a criminal conviction for the purposes of the definition of a ‘foreign criminal’ under Part V of the 2002 Act. Given that the sentencing judge explicitly said “This is not a conviction” it seems …surprising*… that officials at the Home Office tried to argue the point.

The official headnote:

    "An individual sentenced to a hospital order following a finding under section 5 (1) (b) of the Criminal Procedure (Insanity) Act 1964 that he ‘is under a disability and that he did the act or made the omission charged against him’ is neither subject to section 117C of the 2002 Act (as amended) nor to paragraphs A398-399 of the Immigration Rules. He is excluded from the statutory provisions by section 117D(3)(a) and from the Immigration Rules concerning deportation."

[British Lawyer]

23 July 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)

 

>>> The Hong Kong British National (Overseas) Visa: https://www.gov.uk/government/publications/hong-kong-bno-visa-policy-statement

 

Details about the visa scheme for British National (Overseas) citizens in Hong Kong have finally been published today in a policy statement.

 

The key pieces of information published today are that:

 

- the route will open in January 2021,

- BNO citizens in the UK will be permitted to switch in-country without departing from the UK

- BNOs and their family members arriving at the UK border before January 2021 can be granted “Leave Outside the Rules” for a limited period of six months.

 

If a BNO’s leave is expiring before the new visa route opens however, they will need to find an alternative way to extend it to bridge the gap. The opening of the route in January does not give permission to BNOs to overstay their current visas in anticipation of making an application. It does however sound like more details may yet be announced for those with imminently expiring visas such as visitors, students, or youth mobility visa holders – possibly an extension of the “Leave Outside the Rules” scheme.

 

>>> Appeals repair procedural unfairness in tax discrepancy cases: https://www.bailii.org/uk/cases/UKUT/IAC/2020/226.html

 

In the case of Ashfaq (Balajigari: appeals) [2020] UKUT 226 (IAC), the Upper Tribunal reiterates its previous findings that First-Tier Tribunal hearings provide appellants with the necessary opportunity to rebut findings of dishonesty by the Home Office. If the Home Office process was unfair, this deficiency is remedied where a right of appeal is granted or conferred.

 

The case is yet another “tax discrepancy case”, where, like many others, the Appellant was found to be dishonest by the Home Office, having declared differing incomes to the Home Office as opposed to HMRC in a previous application. The application for indefinite leave to remain was then refused, relying on paragraph 322(5) of the Immigration Rules.

 

The headnote:

 

"1. If the decision of the Secretary of State carries a right of appeal, the availability of the appeal process corrects the defects of justice identified in Balajigari.

 

2. In an earnings discrepancy case there is no a priori reason to suppose that any of the declared figures is or was accurate. In particular, the fact that a person is now prepared to pay a sum of money to HMRC does not of itself prove past income at the level claimed.

 

3. The explanation by any accountant said to have made or contributed to an error is essential because the allegation of error goes to the accountant’s professional standing. Without evidence from the accountant, the Tribunal may consider that the facts laid by the Secretary of State establish the appellant’s dishonesty."

 

This case does not really provide any further substantial guidance on tax discrepancy cases. However, it does reiterate the need for anyone affected to (1) submit a human rights application wherever possible, to attract a right of appeal; and (2) be prepared to explain why and how they were not being dishonest with their dealings with HMRC and the Home Office, including by asking their accountants to give evidence when they are to be blamed for the income discrepancy.

[British Lawyer]

30 July 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)

>>> Scanned documents and sponsors

The guidance for Tier 2, 4 and 5 sponsors on Covid-19 was also updated:

"You can submit scanned documents as evidence due to the exceptional circumstances of coronavirus. We may write to you to request original or certified documents. Your application will be refused if you do not send us the evidence or documents we ask for and do not contact us to agree an extension within the given time limit.

On-site visits have been suspended due to coronavirus. If we need to visit, we will not decide the application until we are in receipt of the compliance visit report.

These arrangements will apply until 30 September, when they will be reviewed."

[British Lawyer]

03 August 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)

>>> Seven year rule does not apply to EU children until they’ve lived in UK for seven years: https://www.bailii.org/uk/cases/UKUT/IAC/2020/224.html

In MM (section 117B(6) – EU citizen child) Iran [2020] UKUT 224 (IAC ) the Upper Tribunal holds that the seven year rule at section 117B(6) of the 2002 Act (which applies to British children and foreign national children resident for seven years) cannot be read as applying to EU children resident for less than seven years on the basis that it is contrary to the EU prohibition on discrimination between citizens of a Member State and other EU citizens.

The official headnote:

"The definition of “qualifying child” contained in section 117D(1) of the Nationality, Immigration and Asylum Act 2002 does not include an EU citizen child resident in the United Kingdom for less than seven years.

    2. The non-inclusion of EU citizen children resident for less than seven years in the definition of “qualifying child” does not breach the EU law prohibition against discrimination on grounds of nationality."

An ambitious argument, but one of which we may hear more given that an appeal seems likely.

>>> Upper Tribunal ruling on discretion to reunite refugee families under Dublin III: https://www.bailii.org/uk/cases/UKUT/IAC/2020/227.html

In R (BAA & Anor) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 227 (IAC), the Upper Tribunal takes the opportunity to review Article 17 of the Dublin III Regulation, which provides a general human rights-based discretion for the UK to take responsibility for an asylum claim lodged in another EU country. The Dublin III system is not long for this world so far as Brexit Britain is concerned.

The headnote:

"1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.

(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).

(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.

(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).

(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.

(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.

(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic."

 

[British Lawyer]

05 August 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)

>>> Easier access to benefits for family members of people from Northern Ireland

People from Northern Ireland will soon be able to sponsor non-European family members under the light-touch EU Settlement Scheme. The government has recently passed a separate but related measure: the Social Security (Income-Related Benefits) (Persons of Northern Ireland – Family Members) (Amendment) Regulations 2020. The aim of the regulations is to enable such family members to claim benefits in Great Britain “on broadly the same terms as family members of citizens of the Republic of Ireland”.

An accompanying memo explains:

    "Family members of citizens of the Republic of Ireland granted [pre-settled status] under the EU Settlement Scheme can access income-related benefits if the Irish citizen is exercising a qualifying EU treaty right, meaning that they are a worker, self-employed person, self-sufficient person or student, or that they have acquired a right of permanent residence or if they are a family member who has retained a right of residence. This instrument will make amendments so that a family member of a person of Northern Ireland in a comparable situation can also access income-related benefits."

Income-related benefits include Jobseeker’s Allowance, Housing Benefit and Universal Credit. The family member of a “relevant person of Northern Ireland” will be able to rely on pre-settled status granted under Appendix EU as a right to reside. This is provided that, essentially, the Northern Ireland-born sponsor would be considered to be exercising treaty rights if they had been an EU migrant.

The regulations come into force on 24 August 2020, the same date as the new Northern Ireland-specific sponsorship rules.

>>> Government to “redesign” controversial visa algorithm

Earlier this year JCWI, with the help of Foxglove, launched a legal challenge against the Home Office over its use of an algorithmic “streaming tool” that assigned risk categories to visa applications. The tool scored visa applicants for risk based in part on their nationality.

The Home Office confirmed that it would “discontinue” the streaming tool from 7 August and committed to redesigning it.

 

[British Lawyer]

06 August 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/Vibe

>>> Delayed communication of the Naturalization decisions by the Home Office

The Legal Centre has been made aware of the cases when the Home Office makes a decision in relation to the applicant's Naturalization application (AN, MN1 etc), yet (significantly) delays the communication of the decision to the client/legal representative.

The Home Office needs to be contacted via a dedicated Email address in order to get the decision communicated to the applicant.

>>> The Home Office has updated the Appendix FM (Financial Requirement) to cover the COVID19 loss of income etc cases: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwjz9KTlpIbrAhXvQxUIHQ08CYYQFjAAegQIChAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F901579%2Fappendix-fm-1-7-financial-requirement-v2.0-gov-uk.pdf&usg=AOvVaw0Mp6AGeTFNQAxLurhR6nv1

See page 69:

Coronavirus (COVID-19) concession

Instruction for handling cases which raise the impact of the 2020 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.

This guidance sets out the approach you must take over defined periods, when deciding a case, to ensure applicants are not disadvantaged as a result of circumstances beyond their control because of COVID-19.

Income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidence of a temporary loss of income due to COVID-19 during the period 1 March 2020 and 31 July 2020 you will apply the following concessions:

• a temporary loss of employment income between 1 March and 31 July 2020 due to COVID-19, will be disregarded provided the minimum income requirement was met at the required level for at least 6 months up to March 2020
• an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary
• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 31 July 2020 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications.
• evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions

[British Lawyer]

11 August 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)

>>> Implementing allowed appeals Guidance: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwjzrPOE_pLrAhUCuRoKHYYNChsQFjAAegQIBRAB&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F906953%2FImplementing_allowed_appeals.pdf&usg=AOvVaw1fzMjUhBnLtcHUEVlHuopL

First published.

>>> Coronavirus (COVID-19): Tier 4 sponsors, migrants and short-term students Guidance: https://www.gov.uk/government/publications/coronavirus-covid-19-tier-4-sponsors-migrants-and-short-term-students

>>> Family and Personal Migration - Appendix FM 1.7: financial requirement : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members

COVID-19 financial requirement concessions have been added. Changes made to reflect need to have permission to disclose Family Court Documents. References to the guidance being applicable only to non-EA family members have been removed.

>>> Appendix FM 1.7a: Adequate maintenance and accommodation : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members

>>> English Language requirement: family members : https://www.gov.uk/government/publications/english-language-requirement-family-members/english-language-requirement

Updated.

>>> Knowledge of language and life in the UK : https://www.gov.uk/government/publications/knowledge-of-life-and-language-in-the-uk

Clarified the list of people who do not need to meet the KoLL requirement.

[British Lawyer]

12 August 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)

>>> Human rights court approves deportation of man who arrived aged four: https://hudoc.echr.coe.int/eng#{"itemid":["001-203836"]}

In Pormes v The Netherlands (application no. 25402/14), the European Court of Human Rights has approved the deportation of a man who had lived in the Netherlands between the ages of four and 29, on the basis of multiple convictions for indecent assault.

Mr Pormes had a troubled upbringing. He arrived from Indonesia when he was four after the death of his mother; his father died when he was 11 or 12. At the age of 17, he found out he had been residing in the Netherlands illegally, his father and foster parents not having made an immigration application on his behalf.

He amassed several convictions for indecent assault in his late teens and early 20s, but did not re-offend between December 2007 and his removal from the Netherlands in August 2016.

[British Lawyer]

14 August 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)

>>> Out of country appeals do not breach GDPR, says Court of Appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1032.html

In Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032, the Court of Appeal has determined that there is no breach of the General Data Protection Regulation involved in hearing human rights appeals from abroad via video link. Mr Johnson was deported to Jamaica in 2017 and mounted an audacious attempt to secure his return to the UK by objecting to this use of his personal data, arguing that his appeal must therefore take place in the UK.

The court dismissed the claim, pointing to the specific GDPR exception for legal proceedings:

    "… paragraph 14(3) of schedule 2 provides “as regards personal data … the listed GDPR provisions do not apply to the extent that the application of those provisions would be likely to prejudice … judicial proceedings”. In my judgment preventing the hearing of the appeal would prejudice judicial proceedings, and the restriction of the right to object is necessary and proportionate for the same reasons. Therefore, in my judgment, the appellant is not entitled to object to the processing of his data in the use of video link, and by transferring a bundle to the British High Commission."

The court also accepted assurances from the High Commission that the data would be deleted within seven days of the appeal. Lord Justice Dingemans declined to rule on whether data going to the High Commission amounted to a transfer to a third country, which raised complicated international law issues about the status of embassies and consulates, but decided that it would be proportionate anyway because of the legal proceedings exception.

[British Lawyer]

14 August 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)

>>> Permission granted in JCWI’s challenge to Covid-19 related UT(IAC) guidance (14 August 2020)

Grant of permission

On 6 August 2020 the High Court granted JCWI permission to judicially review Covid-19 related UT(IAC) guidance which creates ‘a strong presumption that error of law appeals in UTIAC will be determined without a hearing’ (§41 of the judgment).

Steyn J held that the challenge raised ‘an important issue warranting consideration at a substantive hearing’. She explained that:

‘I consider the Claimant’s ultra vires argument in respect of the Guidance Note arguable. Secondly, it is also arguable, in my judgment, that paragraph 16 of the Guidance Note is inconsistent with case-law regarding the importance of the interests at stake in determining whether common law fairness requires an oral hearing (see R (Osborn) v Parole Board [2013] UKSC 61), and therefore arguably unlawful in accordance with the principles stated in R (W) v SSHD [2020] EWHC 1299, at [58].’

Next steps

The substantive hearing is likely to be listed for October 2020.

Those already affected by the guidance

In the meantime, recipients of UT(IAC) decisions should consider appealing negative decisions to the Court of Appeal. Steyn J noted the possibility that there have been ‘aberrant decisions and unfairness in individual cases where oral hearings have been refused in circumstances where important interests were at stake for the (original) appellant’. Such cases, ‘would (as the Defendants submitted) raise an important point of principle or practice that would be likely to meet the second appeals test.’ [emphasis added, §46 of the judgment]

The meaning ?

The guidance has brought about a significant change to longstanding practice in appeals of fundamental importance to individual appellants and the State. Whilst we recognise the difficulties the judiciary faced in ensuring the safe administration of justice during the pandemic, we have real concerns that the novel procedure, introduced at speed, does have the ability to create real unfairness.

[fregat222]

New UK Tier 2 health and care visa now open for applications

Comments by Sanwar Ali:

The name of this health care visa available from 4 August 2020 is highly misleading.  It gives the impression that care workers can come under this Tier 2 visa category.  In reality frontline care workers still cannot come under this UK visa scheme.  It is also actually not a new scheme and is part of the Tier 2 visa and Sponsor Licence scheme.  To come under this scheme you need to have a relevant job in the UK and a Tier 2 sponsor in the UK.   Presumably, the naming of this scheme is just Government “spin” to give the impression that they will in fact deal with the care worker skills shortage.  The good news is that this application is faster and much cheaper than the usual Tier 2 visa category.  The following occupations codes are covered:

2112 – Biological scientists and biochemists
2113 – Physical Scientists
2211 – Medical Practitioners
2212 – Psychologists
2213 – Pharmacists
2214 – Ophthalmic Opticians
2215 – Dental practitioners
2217 – Medical Radiographers
2218 – Podiatrists
2219 – Health Professionals not elsewhere classified
2221 – Physiotherapists
2222 – Occupational Therapists
2223 – Speech and Language Therapists
2229 – Therapy professionals not elsewhere classified
2231 – Nurses
2232 – Midwives
2442 – Social Workers
3213 – Paramedics

The new UK health and care visa, announced in open for applications from 4 August 2020. The Home Office published details of the new visa on the official UK government website recently, outlining who is eligible to apply and the costs involved.

The UK health and care visa is reserved for those with a job offer from the NHS, any organisation that provides medical services to the NHS or organisations that offer adult social care. The visa is only currently available to applicants outside the European Economic Area (EEA) and people from Switzerland. However, this is subject to change after Brexit.

Who is eligible?

Doctors, nurses, health professionals and senior-level adult social workers are eligible for the visa. Eligibility is dependent on sponsorship from an employer with a valid Tier 2 sponsor licence. A person who fulfils the criteria of the job role will be issued with a certificate of sponsorship.

An application for a Tier 2 health and care visa can be made up to three months prior to the start date of your employment in the UK. The health and care visa is a ‘fast track’ immigration route, with decisions made on applications within three weeks of submitting biometric information.

Submitting biometric information will cost £19.20.

Health and care visa costs

Health and care visa costs vary depending on the length of stay in the UK. For a visa that is valid up to three years, the cost is £232. Visas issued with a validity longer than three years cost £464. However, fees are subject to change at any point.

Fees are charged at the same rate whether you apply for a health and care visa within or outside the UK. The costs also apply to dependants.

For citizens of Turkey and Macedonia, health and care visa fees are reduced. For a visa that’s valid for up to three years, the cost is £177. For visas over three years, the fee is £409.

Following a review, the health and care visa will not be subject to the Immigration Health Surcharge. However, access to public funds is prohibited.

Premium processing for the health and care visa is available for an additional £500, which guarantees an application decision within five working days. Meanwhile, super-premium processing guarantees a decision by the next working day, provided that biometric information has been submitted.

Tier 2 Health Care visa duration of stay

Health and care visas can be issued with a maximum stay of five years and 14 days, after which, visa holders can apply for UK indefinite leave to remain (settled status).

 

Изменено 15 августа, 2020 пользователем fregat222

[British Lawyer]

17 August 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)

>>> Which English language test providers are accepted by the Home Office ?

There has been some changes, with the new English language test providers being added to the list of the acceptable by the Home Office Providers.

See https://www.gov.uk/government/publications/english-language-requirement-family-members/english-language-requirement#english-language-test-level-requiredapproved-test-providers

 

[British Lawyer]

19 August 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)

>>> How to use the slip rule to fix a permission to appeal error: https://www.bailii.org/uk/cases/UKUT/IAC/2020/249.html

In the case of Ali (permission decisions: errors; slip rule) Pakistan [2020] UKUT 249 (IAC) the Upper Tribunal has held that there is a process for fixing massive errors in an immigration judge’s decision on permission to appeal — so not just to correct errors in a substantive ruling — and explains what that process is.

The headnote:

"(1) Rule 31 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 and rule 42 of the Tribunal Procedure (Upper Tribunal) Rules 2008 may each be employed in order to correct an error in a decision granting or refusing permission to appeal to the Upper Tribunal. In cases of obvious error, the Upper Tribunal Immigration and Asylum Chamber can, in general, be expected in future to proceed as follows.

    (2) Where the First-tier Tribunal permission judge has granted permission when the reasons make it evident they meant to refuse, an Upper Tribunal Judge, acting as a Judge of the First-tier Tribunal, will make the necessary correction under rule 31 of the FtTIAC Rules, as soon as the matter is identified, whether that is at case management stage, as a result of communication from a party, or otherwise.  Although the matter can and should (as in the present case) be raised in a rule 24 response from the respondent, it is preferable for it to be addressed earlier, since a hearing may already have been arranged before that response is received.

    (3) Where the First-tier Tribunal permission judge refuses permission, but clearly meant to grant it, any renewal of permission before the Upper Tribunal should point out the error and ask for it to be corrected under rule 31. In any event, a party should inform the Upper Tribunal of the mistake.

    (4) In the Upper Tribunal, where a judge grants permission when they clearly meant to refuse, the error is unlikely to be identified at a case management stage, if and insofar as that stage is undertaken by the same judge, immediately after their mistaken grant.  This highlights the point, emphasised in Isufaj (PTA decisions/reasons: EEA reg. 37 appeal) [2019] UKUT 283 (IAC), that it is the responsibility of the permission judge, whether in the First-tier Tribunal or the Upper Tribunal, to make sure there is no contradiction between their decision and the reasons for it.  Otherwise, the points made above in respect of the rule 24 response apply also in this situation.

    (5) Where an Upper Tribunal Judge refuses permission to appeal, when they clearly meant to grant it, the decision is an “excluded decision”: section 13(8)(c) of the 2007 Act and cannot be appealed to the appropriate appellate court.  A party should, therefore, apply for the Upper Tribunal to exercise its power of correction under rule 42.

    (6) The process just described applies only to those cases in which there is a clear and obvious contradiction between the intention of the judge who decided the application for permission and the order made on that application.  In any other case, parties should proceed on the basis that the decision is that recorded in the relevant document and the Tribunal is likely to regard it as productive of delay and a waste of its resources to engage in an inter partes process in order to determine whether the slip rule should be applied."

[British Lawyer]

20 August 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 briefing on changes to Northern Ireland family immigration rules

 

Changes to family visa rules for people from Northern Ireland come into force on 24 August 2020. The following legal resource might also be useful to understand the current developments: a briefing from the Northern Ireland Human Rights Commission called EU Settlement Scheme extended to the people of NI: what does it mean for me?. It is written by nationality law expert Alison Harvey.

 

As she points out:

 

    "The time frame for applications from those in the UK is 24 August 2020 to 30 June 2021. Close family members can join you in the UK after 30 June 2021, but only if you were in the UK before 31 December 2020 and the relationship existed before that date, or a child was born or adopted after that date. Those exceptions aside, after 30 June 2021 the scheme closes. EEA nationals and all the people of Northern Ireland will again fall under the immigration rules that apply to British citizens, people settled in the UK and refugees. Carpe diem: seize the day."

 

These temporary concessions do not address the underlying issue of people born in Northern Ireland having automatic British citizenship, to which some people with an Irish nationalist background object.

 

[British Lawyer]

25 August 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 Home Office duty of care to migrants hit by delays confirming leave to remain: https://www.bailii.org/scot/cases/ScotCS/2020/2020_CSIH_47.html

The case of Advocate General for Scotland v Adiukwu [2020] CSIH 47 answers the question of whether the Home Office has a private law duty to grant a person discretionary leave to remain and issue them with a letter to allow them to take up employment once a tribunal has granted their appeal on human rights grounds. Apparently, it doesn’t.

>>> Settleent application on a visitor's visa from another country is possible, according to the UK BA:

"We’re telling all customers now that if they need to apply in another country due to VAC availability issues or travel problems, they can do and their application will be considered as normal".

 

[British Lawyer]

27 August 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)

>>> EU Settlement Scheme rejects majority of Zambrano carers: https://www.gov.uk/government/statistics/eu-settlement-scheme-quarterly-statistics-june-2020

The Home Office has so far rejected the majority of EU Settlement Scheme applications that rely on Zambrano rights. New figures show that 770 of the 1,260 Zambrano carers applying for leave to remain under the scheme have been rejected (61%).

Zambrano carers did not have a route to settlement in the UK before the EU Settlement Scheme. But the Home Office insists that potential Zambrano carers must have made an attempt to stay in the UK through the domestic immigration system first, before relying on EU law rights.

The new figures also confirm anecdotal reports of a backlog in specialised applications. Since August 2018 there have been 7,200 applications invoking Zambrano, Surinder Singh, Lounes, Chen and Ibrahim/Teixeira, all of which involve a paper application form rather than the normal online process. Only 2,900 had received a decision by the end of June 2020.

In total there have now been 3.4 million grants of status under the Settlement Scheme, with 50,000 refused, void, invalid or withdrawn.

[British Lawyer]

28 August 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)

 

>>> The Home Office exchange rate policy: https://www.gov.uk/government/publications/exchange-rate-policy

 

Ever wondered as to why there is a (big) difference between the expected UK BA fee charge and the actual UK BA fee charge ? Now you know.

[fregat222]

Британия планирует крупнейшее за десятилетия повышение налогов

Министерство финансов Великобритании разрабатывает планы повышения налогов за несколько десятилетий для того, чтобы компенсировать бюджет из-за общенационального карантина, введенного в связи с пандемией коронавируса. Как сообщает Sunday Telegraph, таким образом глава Минфина Риши Сунак намерен привлекать ежегодно до 25 млрд фунтов (33,3 млрд долларов).

Источники в правительстве рассказали изданию, что чиновники обсуждают возможность повышения с 10% до 20% размера налоговой ставки на продажу и активы с 18% до 20% - налога на продажу второй квартиры или дома. Для более состоятельных граждан, которые платят налоги по повышенной ставке, размер сбора может быть увеличен до 40% (с нынешних 28% и 20%, соответственно). Рассматриваемые предложения также включают в себя уменьшение сокращения налоговых льгот для пенсионеров, введение налога на электронные продажи, повышение топливных и использованных сборов.

Sunday Times в свою очередь планирует ввести в следующем году 17 млрд фунтов стерлингов (22,7 млрд долларов). в 2023-2024 гг. Эти планы вызывают резкое недовольство бизнеса, которые уже понесенные потери во время пандемии, когда выживание многих компаний оказалось под угрозой.

Логика Сунака, как уточняет Sunday Times, заключается в том, что даже после повышения доходов компаний будет меньше, чем в таких европейских странах, как Германия, Франция, Италия и Испания. При этом бюджетные расходы государства лишь по выплате зарплаты 10 миллионов человек, которые были отправлены в отпуск из-за пандемии, составили к концу июля 31,7 млрд фунтов (42,3 млрд долларов), увеличиваясь каждый месяц на 14 млрд фунтов (18, 7 млрд долларов). На этом фоне государственного долга Великобритании за первый раз преодолел отметку в 2 триллиона фунтов (более 2,6 трлн долларов), превысив размер ВВП Великобритании.

 

Источник

Изменено 31 августа, 2020 пользователем fregat222

[British Lawyer]

01 September 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)

>>> Bail accommodation system ruled “systemically unfair”: https://www.bailii.org/ew/cases/EWHC/Admin/2020/1912.html

The Immigration Act 2016 brought about extensive changes to the support available to people on immigration bail. Since those changes came into force in January 2018, tens of thousands of people have struggled against the harsh new system, which has kept many indefinitely detained by the Home Office or has left them homeless with no support.

It is a relief, then, that the High Court in Humnyntskyi v SSHD [2020] EWHC 1912 Admin has put the brakes on the new system, finding that it “does not come close” to a minimum standard of fairness.

In a lengthy judgment, Mr Justice Johnson considered three joined judicial reviews alleging unlawful detention and, in one case, inhuman and degrading treatment under Article 3 of the European Convention on Human Rights (ECHR). After finding in the claimants’ favour in their individual claims, the judge concluded that the system “by some margin” created a risk of unfairness for all those who may be eligible for support under Schedule 10 of the 2016 Act. As the charity Bail for Immigration Detainees (BID) puts it, “this judgment has found the Home Office’s bail accommodation policies and its practices to be individually and systemically unlawful”.