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Важные судебные решения и новости для иммигрантов

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03 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)

>>>  Rights and status of frontier workers in the UK from 1 January 2021: https://www.gov.uk/government/publications/rights-and-status-of-frontier-workers-in-the-uk-from-1-january-2021?utm_source=922d54c8-9f71-47c9-900c-a35a16ec2818&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Guidance for frontier workers who want to enter the UK from 1 January 2021.

>>> Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=2c90a714-54bf-441a-9dc7-f09e646c9eca&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Visa application centres reopening and other updates.

"If your leave expires after 1 September 2020

You can submit an application form from within the UK where you would usually need to apply for a visa from your home country.
You’ll need to show your application is urgent, for example if you need to start a new job or course of study.

You’ll need to pay the fees and meet all requirements of your visa as normal, except the need to submit the application in your home country.

This is being kept under review."

>>> Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5 and Appendix W): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5?utm_source=888808a8-f9f6-4d4a-9798-4db9e91211de&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Updated guidance.

 >>> Family life (as a partner or parent), private life and exceptional circumstances: https://www.gov.uk/government/publications/family-life-as-a-partner-or-parent-private-life-and-exceptional-circumstance?utm_source=ee56ceb3-f2fc-4bfb-a79d-a4d81a300d26&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Updated information about applying for a change of conditions.

 >>> Human rights claims on medical grounds: https://www.gov.uk/government/publications/human-rights-claims-on-medical-grounds?utm_source=a7420725-95ef-46e0-9216-66d1534373a3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

Updated guidance in respect of guidance on transplant cases and reflecting the recent case law on medical issues and the Article 3 test.

>>> Appendix FM family members (immigration staff guidance): https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members?utm_source=0c4addf1-f744-43f0-8331-67cd928851b4&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

COVID-19 financial requirement concessions have been updated. 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 August 2020 certain concessions apply (see p.69)

>>> Appendix FM family members - maintenance: https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members?utm_source=0c4addf1-f744-43f0-8331-67cd928851b4&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

COVID-19 financial requirement concessions have been updated. 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 August 2020 certain concessions apply (see p.31)

>>> EU Settlement Scheme: family and travel permits: https://www.gov.uk/government/publications/eu-settlement-scheme-family-permits?utm_source=a94b9c2a-0add-4a58-934d-3e700dc8d368&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Amendments have been made to reflect the changes to Appendix EU (Family Permit) relating to family members of the people of Northern Ireland. Applications under the EU Settlement Scheme by family members of a relevant person of Northern Ireland as defined in Annex 1 to Appendix EU have been possible since 24 August 2020.

 >>> EU Settlement Scheme: evidence of relationship: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-relationship-to-an-eu-citizen?utm_source=c8bd408d-cb3c-4c25-bd6e-2280284d3205&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily
Now includes how to show someone is the dependent relative of a person of Northern Ireland.

>>> EU Settlement Scheme caseworker guidance: https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance?utm_source=78cc0f28-a983-4629-9a47-340fd497c769&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Amendments have been made to reflect the changes to Appendix EU (Family Permit) relating to family members of the people of Northern Ireland. Applications under the EU Settlement Scheme by family members of a relevant person of Northern Ireland as defined in Annex 1 to Appendix EU have been possible since 24 August 2020.

>>>  Applying for a UK visa: approved English language tests: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests?utm_source=9c93d0f5-47bd-4956-935e-219788b8bcc9&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

List of tests and test centres approved by UK Visas and Immigration to show that applicants have the required level of English for their visa.

>>>  Workflow routing: visitor, short-term student and overseas domestic worker: https://www.gov.uk/government/publications/workflow-routing-visitor-short-term-student-and-overseas-domestic-worker?utm_source=8e17b07f-783e-4b72-b413-9969c2481cd6&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate

The guidance proposes a new interim process which removes the previous reliance on nationality and all Global Visa Risk Streaming (GVRS) data in the streaming tool.

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04 September 2020

>>> Coronavirus (COVID-19): Biometric enrolment, reuse and evidencing status Guidance: https://www.gov.uk/government/publications/coronavirus-covid-19-biometric-enrolment-reuse-and-evidencing-status?utm_source=Free+Movement&utm_campaign=60ef370f92-Daily+forum+updates&utm_medium=email&utm_term=0_792133aa40-60ef370f92-116194677&mc_cid=60ef370f92&mc_eid=1af5cd4d48

Policy guidance on considering handling requirements for enrolling or reusing biometrics or issuing a temporary status letter instead due to reduced capacity for enrolling or where an applicant is unable to enrol their biometrics in the UK.

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07 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)

>>>   Call for evidence: An inspection of UKVI’s ‘Front End Services’: https://www.gov.uk/government/news/call-for-evidence-an-inspection-of-ukvis-front-end-services

The Independent Chief Inspector invites anyone with knowledge and experience of UKVI’s ‘Front End Services’ to submit their evidence for his forthcoming inspection.

>>> Update your EU Settlement Scheme details guidance: https://www.gov.uk/update-eu-settlement-scheme-details

Use this service if you’ve applied to the EU Settlement Scheme and you’ve changed your:

   - mobile phone number
   - email address
   - name
   - identity document
   - UK address

 

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08 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)

>>>   Major Court of Appeal judgment revisits “unduly harsh” test and other key concepts: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1176.html

The lead judgment of Lord Justice Underhill contains far-reaching and important analysis of key aspects of UK deportation law. In doing so, it reverses decisions made by President Lane in the Upper Tribunal intended to give guidance on the same.

HA (Iraq) is particularly fascinating in its treatment of the “unduly harsh” test as formulated by Lord Carnwath in KO (Nigeria) v SSHD [2018] UKSC 53.

What is the correct test?

Underhill LJ sets out his own observations on how the test should be interpreted in paragraphs 51-52:

    "The essential point is that the criterion of undue harshness sets a bar which is “elevated” and carries a “much stronger emphasis” than mere undesirability: see para. 27 of Lord Carnwath’s judgment, approving the UT’s self-direction in MK (Sierra Leone), and para. 35. The UT’s self-direction uses a battery of synonyms and antonyms: although these should not be allowed to become a substitute for the statutory language, tribunals may find them of some assistance as a reminder of the elevated nature of the test. The reason why some degree of harshness is acceptable is that there is a strong public interest in the deportation of foreign criminals (including medium offenders): see para. 23. The underlying question for tribunals is whether the harshness which the deportation will cause for the partner and/or child is of a sufficiently elevated degree to outweigh that public interest."

But it is important not to forget the staged approach taken in the legislation:

    "However, while recognising the “elevated” nature of the statutory test, it is important not to lose sight of the fact that the hurdle which it sets is not as high as that set by the test of “very compelling circumstances” in section 117C (6). As Lord Carnwath points out in the second part of para. 23 of his judgment, disapproving IT (Jamaica), if that were so the position of medium offenders and their families would be no better than that of serious offenders. It follows that the observations in the case-law to the effect that it will be rare for the test of “very compelling circumstances” to be satisfied have no application in this context (I have already made this point – see para. 34 above). The statutory intention is evidently that the hurdle representing the unacceptable impact on a partner or child should be set somewhere between the (low) level applying in the case of persons who are liable to ordinary immigration removal (see Lord Carnwath’s reference to section 117B (6) at the start of para. 23) and the (very high) level applying to serious offenders."

Note the complete absence in this description of the test of a comparative exercise between the facts in a given case against the level of harshness that would “necessarily” be suffered by “any” child.

This is absolutely not how it has been interpreted in the tribunals or the Court of Appeal since KO (Nigeria) was handed down, which have generally been applying this test entirely literally, as in PG (Jamaica). Another prominent example is the Court of Appeal case of SSHD v KF (Nigeria) [2019] EWCA Civ 2051:

    "Given the changes to the law introduced by the amendments to [the] 2002 Act, as interpreted by the Supreme Court, it is necessary to look for consequences characterised by a degree of harshness over and beyond what every child would experience in such circumstances."

This is exactly the type of overly-literal interpretation of the Supreme Court’s judgment that Underhill LJ has breezily dismissed as wrong.

See also his warning (paragraph 56) against treating KO (Nigeria) as establishing a touchstone of whether the degree of harshness goes beyond “that which is ordinarily expected by the deportation of a parent”.

Underhill LJ expressly addresses the anticipated criticism that this represents a rather different approach than had gone before (see para 61), and a deviation from the test laid down by the Supreme Court.

But it is really hard to see that this does not represent a significant change in the law.

Other important points

There is so much in this decision that it would be easy to overlook the concurring judgment of Peter Jackson LJ on the best interests of the child in these assessments (paragraphs 151-163), and particularly the law on the treatment of “emotional harm” as equal to physical harm (para 159).


The judgment covers other important points that may be of interest:

    "Confirms that in the proportionality balance that falls to be struck in a deportation case the seriousness of the relevant offending is established by the level of sentence: see SSHD v Suckoo [2016] EWCA Civ 39 (para 94)
    But it is inappropriate for a tribunal not to give credit for a reduced sentence because it was reduced as a result of a guilty plea (paras 146-149)
    Reaffirms the importance of British citizenship in the best interests of the child calculation: (paras 113-114)
    Mentions the limited utility of factual precedents (paras 127-129)
    Confirms that rehabilitation can be relevant in the section 117(6) assessment (paras 132-143)"

 

 

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11 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)

>>>   Statement of Changes to the Immigration Rules (HC 707): https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-707-10-september-2020

The changes mainly concern the new student and child student rules, which will replace the Tier 4 routes closing on 5 October 2020. The main differences are:

-EEA nationals will be included within the student rules.
-The new rules permit for increased switching within the study route and increased switching between routes within the 'Points Based System'.
-The eight-year time limit on studying courses at postgraduate level has been removed.
- Students will only be required to prove the required level of English language to the Home Office once.
- The new rules no longer require applicants who have met the maintenance requirement on their current route to meet it again if they have been supporting themselves in the UK for more than a year. There is also more flexibility around meeting the maintenance requirement e.g. relying on a wider range of accounts.
-Appendix ATAS has been inserted and sets out the current
- Academic Technology Approval Scheme requirements.
- Appendix A - Paragraphs 113 to 125-SD have been deleted and the requirements moved into Appendix ST: Student or Appendix CS: Child Student (as appropriate).
- The Student Dependent rules are now contained in Appendix ST: Student.
- Insertion of new Appendix ST: Student makes provision of a valid CAS a validity requirement rather than an eligibility requirement.
- 70 points must be awarded for: study (CAS, course requirement, approved qualification, level of study and place of study requirements (50 points)), financial requirement (10 points) and English language requirement (10 points).
- Insertion of Appendix CS: Child Student.

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17 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)

>>>   UK Immigration Rules on overstaying - Paragraph 39E – possible changes

The Home Office asked for ILPA’s views on less restrictive alternatives to paragraph 39E. ILPA recommended that the time limit of 14 days should be abolished and that a ‘good reason’ is sufficient to discount a period of overstaying. Alternatively, ILPA said a return to a 28-day grace period, which was the position prior to Statement of Changes HC 667, would be welcomed.

Further, ILPA highlighted members’ concerns that paragraph 39E should not be redrafted in isolation. Contrary to R (Ahmed) v SSHD [2019] EWCA Civ 1070, ILPA urged the Home Office to make clear that where an application for leave to remain has been accepted in reliance on paragraph 39E that a future application for ILR will not be prejudiced.

>>> Implementing allowed appeals

The Home Office guidance states that allowed appeals should be implemented and leave should be granted in line with the determination, unless the determination is being onwards appealed or the decision being appealed is being re-opened.

When allowed appeals are not concerned with ILR then the Immigration Health Surcharge can be charged. If payment is not then made and the appeal is allowed solely on human rights grounds, the appellant will be granted 30 months leave but may have to pay for some medical treatment.

Caseworkers are reminded that they cannot refuse to implement a Tribunal’s determination because they believe (i) the Tribunal lacked jurisdiction or (ii) disagree with the determination.

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23 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)

 
>>> Can I leave the UK following the submission of my application ? I stil have my passport on me.
 
Apparently, NO, in line with the current para 34X(2)
 
Withdrawal of applications:
 
 
34X. (1) An application which may only be brought from within the UK and has not been determined will be treated as withdrawn if the applicant requests the return of their passport for the purpose of travel outside the UK.
(2) An application which may only be brought from within the UK and which has not been determined will be treated as withdrawn if the applicant leaves the UK.
(3) The application for administrative review may be withdrawn by the applicant. A request to withdraw an application must be made in writing to the Home Office at the address provided for that purpose on the visas and immigration pages of the gov.uk website. The application will be treated as withdrawn on the date on which the request is received.
(4) An application for administrative review which has not been determined will be treated as withdrawn if the applicant makes an application for entry clearance, leave to enter or leave to remain.
(5) Sub-paragraphs (1) and (2) above do not apply to an application for administrative review made under Appendix AR (EU).
 
>>> Can I submit my Entry Clearance application while I am in the UK ?
 
Apparently, NO.
 

It was reported during the ILPA meeting that the Home Office can refuse Settlement (Long Residence Application (SETLR), for example) and probably other applications, if the Entry Clearance application was lodged online while the applicant was still in the UK

 

 

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24 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)

 
>>>  When will the 24-hour UK BA visa serice be re-instated ?
 
It was mentioned during the ILPA conference that the 24-hour service would be re-instated on the 5th October 2020.
 

This is not guarantee, of course.

 

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25 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)

 
>>> The end of the Tier 2 cooling-off period may happen soon
 
The new Immigration Rules for the Skilled Worker will soon replace the Tier 2 (General) in the new Points-Based Immigration System.
 
Some good news is starting to emerge. The cooling-off period, which has seen many a skilled migrant having to spend a year outside the UK before they can return to work, will not be carried over to the new Skilled Worker route.
 
The Home Office has been actively engaging with stakeholders in recent weeks to explain some of the finer details of the system. The Home Office presentation, which was shared with the stakeholders, showed that “there will be no ‘Cooling off’ periods in the skilled worker route”.
 
The Home Office has said that the new Immigration Rules for Skilled Workers would be published in the autumn. Given that they have just published the rules for the new student route, which is due to go live on 5 October, the Skilled Worker rules are also imminent. It would make sense for publication to coincide with the Immigration Bill completing its passage through Parliament — it’s almost there — and the Migration Advisory Committee publishing its report on the new Shortage Occupation List, due before the end of this month.
 
What about cooling off for those who intend to stay in the ICT route? The Home Office has already confirmed in its Further Details document published in July that:
 
    "We plan to replace the existing rules with a rule that more simply requires that an overseas intra-company transfer must not hold entry clearance or leave to enter or remain as an intra-company transferee for more than five years in any six-year period, except where they qualify to be granted up to nine years on the basis of their salary."
 
What all this means in practice is that anyone who is currently making plans based on the current cooling-off period rules should, if possible depending on the visa expiry date, wait until the new system goes live. They should then be able to benefit from the new rules.
 
>>> Immigration Health Surcharge increase to £624 delayed: https://www.freemovement.org.uk/what-is-the-immigration-health-surcharge/
 
The Immigration Health Surcharge will no longer increase from £400 to £624 on 1 October 2020 as originally planned.
 
The draft order setting a 1 October date for the increase has been replaced by a new draft order which still hikes up the surcharge but only comes into force 21 days after it is made into law. Since it hasn’t yet been made, it cannot come into force on the 1st October 2020.
 
>>> EU deportation protections continue after Brexit
 
From next year there will be two categories of EEA national:
 
    1. Those who began their residence in the UK before 31 December 2020; and
    2. Those who began their residence in the UK after 31 December 2020.
 
The law a person is subject to will depend on which category they fall into. Family members of EEA nationals will be similarly categorised. They get all the same rights as the EEA citizen, even if they are a national of a non-EEA country.
 
The EU law rules on deportation will continue to apply to EEA nationals and their family members who fall within the first category. For those in the second category, the harsher UK rules on deportation will apply.
 
These preserved EU deportation rules will apply to anyone granted settled status, pre-settled status or a family permit under Appendix EU (Family Permit). They will also apply to anyone eligible to apply, even if they have not done so.
 
What’s the difference between EU and UK deportation rules?
 
The EU rules on deportation focus on rehabilitation and risk of re-offending. A person must be a threat to be deported. They cannot be deported solely because of their conviction, or in pursuance of a policy of general prevention. An EEA national cannot be deported because the government want to send a political message that the UK is tough on foreign criminals. The decision to deport must be based exclusively on the personal conduct of the person concerned. It is up to the Home Office to justify why deportation is necessary.
 
The UK rules on deportation are almost the direct opposite. Someone sentenced to over a year in prison is automatically subject to deportation. The Home Office does not need to justify deportation, beyond pointing to the criminal conviction which makes the person a “foreign criminal”. Deportation of foreign criminals is in the public interest, and it is up to the individual to show that one of the stringent exceptions to deportation applies. 
 
Given these stark differences, the preservation of the EU rules on deportation is not a mere technicality. It provides significant protection to EEA citizens against removal from the UK.
 
If you are an EEA citizen, and find yourself on the wrong side of the law, the first question you need to answer is: did you come to the UK before or after 31 December 2020? The answer to that question will most likely determine whether or not you are able to stay in the UK.
 
>>>  Asylum outsourced: private firms to carry out asylum seeker interviews
 
The Home Office is planning to outsource asylum interviews to commercial contractors.
 
A pilot programme designed to address the mounting backlog of asylum claims will see private outsourcing firms conduct interviews with often vulnerable asylum seekers.
 
Refugee charities are likely to oppose the move, which was unveiled yesterday in a circular from the Home Office team that processes claims for refugee status.
 
The list of strategic suppliers includes companies such as Capita, G4S, Mitie, Serco and Sopra Steria.
 
While Home Office staff will still make the final call on the asylum claim, contractors will “conduct substantive asylum interviews [and] gather evidence and information that enables a decision to be made”, according to a Q&A document circulated alongside the letter. Interview preparation will continue to be done by in-house decision makers.
 
>>> Personal data breaches by the Home Office soar to over 4,000 last year: https://www.gov.uk/government/publications/home-office-annual-report-and-accounts-2019-to-2020
 
ersonal data breaches at the Home Office rose 55% last year to over 4,000.
 
There were 4,204 “personal data related incidents” in 2019/20 compared to 1,895 in 2018/19, according to the department’s annual report and accounts. They included “loss of inadequately protected electronic equipment, devices or paper documents” and “unauthorised disclosure” of personal data.
 
Officials deemed only 25 data loss incidents significant enough to report to the Information Commissioner’s Office, down from 35 the year before.
 



 

 

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26 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)

>>> What is the legal status of EU citizens during the post-Brexit “grace period”?

Free movement will come to an end this year. From 1 January 2021, EU/EEA/Swiss citizens who wish to move to the UK to work and study will have to meet the requirements of the new points-based immigration system. Existing residents have until 30 June 2021 to apply for settled or pre-settled status under the EU Settlement Scheme.

But what of the EU/EEA/Swiss citizens and their family members who already live in the UK (or move here before 1 January), and who only make their Settlement Scheme application in the first six months of 2021? To allow for this six-month “grace period”, the Home Office has laid before Parliament the Citizens’ Rights (Application Deadline and Temporary Protection) (EU Exit) Regulations 2020.

Why is there a settled status grace period?

The grace period is crucially important. There is an unknown number of eligible people yet to apply under the Settlement Settlement, many of whom are potentially vulnerable. There are also those who erroneously believe that the scheme does not apply to them (perhaps due to living in the UK for decades) and those who have not received the necessary support to make a successful application. Added to this is the concern that there could be significant numbers of people inadvertently putting their ability to obtain settled status at risk if they have been left stranded abroad for a long time.

These problems have led to calls for the government to consider extending the grace period. If the deadline for Settlement Scheme applications is not pushed back, the risk is that those who do not meet the 30 June deadline — through no fault of their own — are forced into the hostile environment for undocumented migrants.

The Home Office’s intransigent answer to this reasonable suggestion is found in Regulation 2:

    "The end of 30 June 2021 is the deadline for submission of an application for residence status."

With the deadline emphatically stated, we turn to the immigration status of EU citizens during the grace period.
What is the legal status of existing residents during the grace period?

An explanatory memo accompanying the regulations summarises the position:

    "For those EEA citizens who are lawfully resident in the UK by virtue of free movement law immediately before the end of the transition period, and who do not yet have status under the Scheme, and for their relevant family members, this instrument saves their existing residence rights in the UK."

Regulation 3 gives effect to this. It says that for citizens to be covered, they must immediately before the end of the transition period (referred to as “Implementation Day”, be either “lawfully resident in the United Kingdom by virtue of the EEA Regulations 2016”, or “had a right of permanent residence in the United Kingdom under those Regulations”. The relevant parts of the EEA Regulations are being “saved”, so that they continue to give such people the legal right to live in the UK until the end of the grace period. By then, they should — hopefully — have been granted a replacement legal status under the Settlement Scheme.

What about people who don’t satisfy the EEA Regulations?

Not all EU citizens actually have a right to reside under the EEA Regulations: for example, self-sufficient persons and students who do not hold Comprehensive Sickness Insurance (at least on the Home Office’s interpretation). They nevertheless have the right to apply under the Settlement Scheme before 30 June 2021. As the Home Office has stated that hostile environment policies will kick in from 1 July 2021 for those who fail to meet the application deadline, the assumption is that — at least on a practical level — their presence in the UK for the grace period will be tolerated until then. But it is clear from the wording of the explanatory statement that the Home Office does not consider such people lawfully present in the UK.

Yet it is getting worse.

Most people who apply for settled/pre-settled status before 30 June 2021, but don’t receive a decision until after that date, will benefit from the equivalent of Section 3C leave. But that is only for those who have an EEA Regulations right to reside to carry over. Those without preserved residence rights are not covered by this provision. Even if they meet the Settlement Scheme — and therefore comply with the key demand made of them by the Home Office — they do not benefit from this Section 3C equivalent. This would mean facing hostile environment measures from 1 July, at least until they get a decision.

There is still time for the Home Office to reflect on the deficiencies in these regulations and make adjustments to ensure that everyone eligible for the Settlement Scheme has full legal protection during the grace period and beyond.

 

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29 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)

>>> Court of Appeal backs judge who ordered asylum seeker brought back to the UK: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1213.html

The Court of Appeal has rejected an attempt by the Home Office to overturn a High Court order to bring an asylum seeker who had been removed under the unlawful Detained Fast Track system back to the UK. The case is R (PN (Uganda)) v Secretary of State for the Home Department [2020] EWCA Civ 1213.

>>> Some 70 new job types being added to Shortage Occupation List: https://www.gov.uk/government/publications/review-of-the-shortage-occupation-list-2020

Under the government’s new Points-Based Immigration System, the minimum salary required to sponsor an overseas worker will be £25,600, unless the worker has a PhD — or is being hired for a role that appears on the Shortage Occupation List. The minimum salary for a shortage job will instead be £20,480. As the Migration Advisory Committee says in its major review of the Shortage Occupation List, published today, this “fundamentally alters the nature of the SOL”. A job being included on the list will mean that employers can sponsor someone for a visa at a salary up to 20% lower than would otherwise be allowed.

In its last review of the list in May 2019, the Migration Advisory Committee recommended that roles accounting for 9% of UK employment be listed as shortage occupations. This latest review boosts that to 14% (assuming the government accepts the committee’s recommendations, as it is expected to). 70 new job types will be added to either the UK-wide shortage list or to those specific to Scotland, Wales and Northern Ireland. They include senior care workers, nursing assistants, butchers, bricklayers and welders.

There is also good news for vent chicken sexers and deckhands working on large fishing vessels (9 metres and above). Both these jobs are to be reclassified at the RQF3 skill level, making them eligible for sponsorship. Deckhands with three years’ experience will be on the Shortage Occupation List as well.

Finally, the committee recommends that in future there should be regular annual updates of the Shortage Occupation List, instead of as and when. It suggests a minor update in 2021 and a more thorough review in 2022.

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02 October 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> NHS and social care workers can now get an Immigration Health Surcharge refund: https://www.gov.uk/government/news/health-and-care-staff-can-claim-immigration-health-surcharge-reimbursement

The government has launched an Immigration Health Surcharge refund scheme for NHS and social care workers. Migrants working in a hospital or care home who don’t have a Health and Care visa will continue to pay the surcharge up front, but can claim it back every six months.

During the pandemic, the Prime Minister promised to exempt migrants propping up the healthcare system from the £400 a year visa tax. That promise was partially fulfilled by waiving the charge for Health and Care visa applicants when that route launched in August.

The refund scheme is for people who are in the UK on a visa granting a “generic right to work”, such as Youth Mobility, and who happen to get a job with the NHS or in social care. They will be eligible for a refund for every continuous six-month period they work in qualifying roles for an average of 16 hours or more a week.

Home Office guidance gives details of the application process and the jobs that qualify (in Annex A). Unlike the Health and Care visa, which is restricted to certain healthcare professionals, a wide range of occupations is catered for, including care workers and hospital support staff.

Refunds are backdated to 31 March, so people can now apply to get their money back for the six-month period covering April-September 2020. The exception is those on a Tier 2 (General) visa, who cannot use the refund process and must instead email IHSrefunds@homeoffice.gov.uk to ask about getting their money back.

>>> Digital-only status for EU citizens “creates a real risk of harm”, experts warn: https://publiclawproject.org.uk/resources/digital-only-status/

Digital-only residence permits could make it harder for migrants to access vital services like jobs and housing, a new report warns.

Landlords and employers used to physical passports and residence permits may discriminate against migrants whose proof of immigration status only exists online, according to the Public Law Project.

Millions of EU citizens with settled and pre-settled status have been denied physical proof of their status and the Home Office is planning to go digital-only across the board.

The report calls for there to be a physical fall-back option if the digital system does lead to problems.

 

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05 October 2020 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> NHS surcharge increase has been postponed:

From the Home Office:

"The Immigration Health Surcharge increase has been postponed from 1st October due to debates being delayed. It will come into force later in October although an official date has not yet been announced.

Best regards,

Family and Asylum Support Policy | BICS Policy & International Group | Home Office"

>>>  Recruiting people from outside the UK from 1 January 2021: https://www.gov.uk/guidance/recruiting-people-from-outside-the-uk-from-1-january-2021?utm_source=add941a0-9e4a-4a05-b1f7-24d27d136b5a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Guidance for employers. From 1 January 2021 you’ll need to have a sponsor licence to hire most workers from outside the UK.

>>>  UK points-based immigration system: employer information: https://www.gov.uk/government/publications/uk-points-based-immigration-system-employer-information?utm_source=f2254bfa-32ef-4f50-a6a0-03a186ba6be5&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Information to help employers prepare for the UK’s new points-based immigration system.

>>> Tier 4 - If you’re a Student or Child Student applicant in the UK and have given your fingerprints before

If you’re applying in the UK as a Student or Child Student (including Tier 4 student), UK Visas and Immigration (UKVI) may be able to reuse your fingerprints.

If UKVI can reuse the fingerprints you’ve already given, you’ll be emailed with instructions on how to send them an image of your face and your supporting documents.

This will mean you do not have to attend a UKVCAS or an SSC service point appointment to provide biometric information.

If you cannot send the information through the instructions given, you’ll be able to book an appointment.

>>>  Application for a Visa4UK application refund: https://www.gov.uk/government/publications/application-for-a-visa4uk-application-refund?utm_source=15ca702f-39e6-4ec2-9174-394c53ace04f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Form to request to cancel a Visa4UK visa application and request for a refund if you applied outside the UK.

>>>  Coronavirus (COVID-19): jobs that qualify for travel exemptions: https://www.gov.uk/government/publications/coronavirus-covid-19-travellers-exempt-from-uk-border-rules?utm_source=1441b950-aba2-4dc0-936b-c2c4d91f66b8&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Jobs that qualify for exemptions from self-isolation or passenger locator form requirements.

>>>  Immigration health surcharge: applying for reimbursement: https://www.gov.uk/government/publications/immigration-health-surcharge-applying-for-a-refund?utm_source=7ce78ec1-5e7b-43a0-a285-66d9636e8770&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

How to apply for your immigration health surcharge (IHS) reimbursement if you work in health and care.

>>>  Frontier workers in the UK: rights and status: https://www.gov.uk/guidance/frontier-workers-in-the-uk-rights-and-status?utm_source=892abfbe-4da6-48cd-a3ca-6c3191f49e3d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

>>>  Points-based system sponsor licensing: renewals: https://www.gov.uk/government/publications/points-based-system-sponsor-licensing-renewals?utm_source=4753b99b-d35e-4726-9422-32d612ed6cf8&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Immigration staff guidance on renewing a sponsor’s licence.
Guidance for frontier workers who want to continue working in the UK or who wish to begin employment in the UK.

 

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07 October 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 rises to £624 from 27 October 2020: https://www.legislation.gov.uk/uksi/2020/1086/made

The Immigration Health Surcharge will increase from £400 a year to £624 a year on 27 October 2020. The Immigration (Health Charge) (Amendment) Order 2020 (SI 2020 No. 1086) was made yesterday, 6 October, and comes into force 21 days later. As a result, UK immigration applications sent in before the 27th will be hundreds of pounds cheaper than those completed after that date.

The order also provides that applicants for a Health and Care visa are exempt from paying the surcharge. A reduced rate of £470 will apply to students, dependants of students, Youth Mobility visa holders and anyone under 18.

The Conservatives first promised to increase the surcharge during the 2019 general election campaign and gave more details in the March 2020 budget. A draft order originally set the date of increase as 1 October but was later replaced by the version that has just passed into law.

Migrants already pay for the NHS through their taxes, so what the surcharge really represents is a tax on UK visas. It is levied in addition to Home Office administration fees.

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08 October 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 even more difficult for EU nationals to get British citizenship: https://www.gov.uk/government/publications/good-character-nationality-policy-guidance and https://www.gov.uk/government/publications/naturalisation-as-a-british-citizen-by-discretion-nationality-policy-guidance

On 30 September 2020 the Home Office updated its good character policy for naturalisation to make it even harder for EU nationals to become British citizens.

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 Brit). 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 residence up to the point of getting settled status 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).

None of this appeared in previous editions of the naturalisation policy.

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 having been lawfully resident.

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.

It should also be possible to rely on residence since being granted pre-settled or settled status without supporting evidence. The policy says that “once granted pre-settled status, [citizenship applicants] will not need to demonstrate that they were exercising a treaty right”. Compliance with the EEA Regulations is relevant to “residence prior to the grant of pre-settled status, or settled status”.

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

>>> Extra guidance for Health and Care Visa sponsors: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers

New government guidance sets out additional steps for employers when sponsoring foreign medical workers applying for the new Health and Care Visa.

The visa launched on 4 August 2020 as a subcategory of the existing Tier 2 (General) route for sponsored workers.

The updated Tier 2 and Tier 5 guidance for sponsors explains that extra steps are required for employers assigning a Certificate of Sponsorship (CoS) in this new route.

Firstly, the job description summary must clearly state how the job meets the visa criteria – so employers must confirm which SOC code applies and expressly state which approved body will employ the worker. The full list of approved bodies appears at A2 of the separate Tier 2 policy guidance (also just updated) which contains detailed information on who qualifies for the visa.

Secondly, private organisations assigning a CoS must include details about their arrangements with the relevant NHS body to provide medical services. Sponsors who forget to include this information at the time of assigning the CoS must add it to a “sponsor note” afterwards.

Thirdly, employers must tell migrants to ensure they actually specify the Health and Care subcategory in their visa application, to make sure the application is correctly processed.

These extra steps are apparently needed to ensure applicants qualify for “special treatment” during the processing stage, including fast-track entry, reduced fees and automatic exemption from the (otherwise quite high) Immigration Health Surcharge. NHS workers who don’t qualify for a Health and Care Visa have to pay the surcharge up front and claim it back.

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Британия согласилась на диалог с Украиной о взаимном безвизе, – СМИ

 

Украина должна доказать, что украинцы не представляют опасности для британцев.

Соглашение между Украиной и Великобританией, подписанное в ходе визита президента Владимира Зеленского в Лондон, предусматривает, в том числе, возможность взаимного упрощения визовых ограничений. Об этом информирует Европейская правда.

"Британское правительство впервые дало согласие начать диалог о взаимном визовом упрощении. И теперь дело за властью Украины, которая должна доказать, что безвизовые украинцы не представляют опасности для Британии, Украина гарантирует безопасность документов и тому подобное", – говорится в статье издания.

Издание подчеркивает, что "впереди долгий путь", ведь отмена виз может быть "только поэтапной".

"Так же как с ЕС, сначала будет упрощение для отдельных категорий (например, безвиз для дипломатов) и изменение визовой практики. И многое будет зависеть от украинских путешественников, которые не должны злоупотреблять правилами после первых упрощений", – объясняется в статье.

В настоящее время у Украины действует безвизовый режим с Европейским союзом.

Напомним, президент Украины Владимир Зеленский и премьер-министр Великобритании Борис Джонсон подписали двустороннее соглашение о политическом сотрудничестве, свободной торговле и стратегическом партнерстве.

 

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20 October 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 points-based immigration system: further details statement: https://www.gov.uk/government/publications/uk-points-based-immigration-system-further-details-statement

This statement provides further details on the government's plans for a new UK points-based immigration system.

>>> UK points-based immigration system: EU student information:
https://www.gov.uk/government/publications/uk-points-based-immigration-system-eu-student-information

Information for visas for EU ciziens who intends to study in the UK from 01-01-2021

>>> Most visa app-lications to be done on smartphones ?

The Home Office has been rolling out new webpages for the public on how to get a visa, in preparation for the new points-based immigration system due to come in from 1 January 2021. One such page was published yesterday- https://www.gov.uk/guidance/the-uks-points-based-immigration-system-information-for-eu-citizens - aimed at EU citizens. The overall message is “yes, you will in fact need a visa now” but there’s one section that was of a particular interest":

    "Most people will be able to complete their [visa] application, including identity verification, using a smartphone app. Some applicants may need to attend a Visa Application Centre depending on the route they are applying for and whether they have a biometric passport or are unable to use the app."

The immigration system has of course been going digital in recent years but I haven’t previously seen the government saying that it will soon be using apps for everything. While the page is addressed to EU citizens, the whole point of the new immigration system is that there are no longer special routes for Europeans, so it seems likely that app-based applications will be widely available to non-EU citizens as well.

Millions of people have applied to the EU Settlement Scheme using an EU Exit app over the past few years. More recently, during the pandemic, certain non-EU citizens trying to extend their visas have been invited to use the snappily named UKVCAS IDV app (United Kingdom Visas and Citizenship Application Services, Identity Verification). In both cases, users avoid the need for an in-person appointment.

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22 October 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)

>>> Online application forms to be deleted in 7 days unless accessed

We noted that the Home Office now advices on the online application forms that

“You must return to your form within 7 days, or it will be deleted to protect your privacy.”

You have been warned.

>>> Inbuilt obstacles and mechanisms that the Home Office use to defeat, deny and deter immigration claims: https://ukimmigrationjusticewatch.com/2017/05/09/inbuilt-obstacles-and-mechanisms-that-the-home-office-use-to-defeat-deny-and-deter-immigration-claims/

Some persons may make late human rights or protection claims that could have been made earlier. A person resisting removal may try and make a late claim because if they exercise their right of appeal it could delay removal. To make this behaviour ineffective in preventing or delaying removal, the new process under the Immigration Act 2014 requires that a section 120 notice is served in every case. This notice requires the person to make any further claim now or as soon as reasonably practicable after it arises

The consequence of not complying with the notice and making a late claim could be that the claim is certified under section 96 Nationality, Immigration and Asylum Act 2002 which removes any consequential right of appeal where the claim is refused.

 

 

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25 October 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)

>>> Supreme Court finds treatment of skilled worker unfair: https://www.bailii.org/uk/cases/UKSC/2020/41.html

The Supreme Court held in R (on the application of Pathan) v Secretary of State for the Home Department [2020] UKSC 41 that the Home Office’s treatment of a Tier 2 skilled worker, Mr Pathan, was unfair. Mr Pathan had applied for an extension of his visa as a sponsored worker in good time but his application was refused several months later after the Home Office had, without telling him, revoked his employer’s sponsorship licence. This revocation meant that Mr Pathan’s application was, ultimately, doomed to fail.

Mr Pathan was left unlawfully resident in the UK with no warning and, after reforms by Theresa May during her time as Home Secretary, no right of appeal. The Supreme Court has now, by a majority, quashed the decision to refuse Mr Pathan’s extension request.

Notably, this is the second major case one has seen on access to justice in immigration cases in as many days.

The formal outcome of the case was that Mr Pathan’s appeal was allowed. The Home Office decision to refuse his extension application was therefore unlawful and is quashed. In law, that decision has not formally yet been made, although Mr Pathan knows what the outcome is going to be. Mr Pathan’s residence since that non-decision was served on him on 7 June 2016 had seemed to be unlawful. It turns out that it was in fact lawful residence all along as leave was extended automatically by operation of law by section 3C of the Immigration Act 1971 while his valid and in-time application remains pending.

No doubt the Home Office will shortly issue a new refusal. However, Mr Pathan might well now be eligible for settlement under the ten year rule given he first arrived in 2009 and it turns out now that he has been lawfully resident ever since. One can imagine he will already have varied his application by this time.

Future cases

It is clear that the decision not to inform Mr Pathan of the revocation of his employer’s sponsorship licence was unlawful. Given that the Supreme Court was split 2-2-1 on what should happen as a consequence, though, it is less immediately clear what this means for future cases.

Lord Briggs, in his dissenting judgment, thought the appeal should be dismissed anyway because the refusal of the extension request was distinct from the procedural unfairness in failing to give notice of revocation of the sponsorship licence. Lady Arden and Lord Wilson agreed with one another that 60 days of leave should be granted, as occurs in student applications where the educational insti***ion loses its sponsorship licence. Lord Kerr and Lady Black agreed with one another that this was not necessary. They held instead that Mr Pathan should have been given sufficient notice of the revocation to give him time to do something about it:

"The duty to act procedurally fairly comprehends an obligation to tell somebody such as Mr Pathan immediately about circumstances which doomed his current application so that he could avail of the full period which would then have become available to allow him to do something about it.

Lord Kerr and Lady Black, paragraph 109"

This would have given Mr Pathan a window of time in which to make an alternative application or, at least, pack his bags — and the bags of his family, who accompanied him in the UK — and avoid the fate of becoming an overstayer and thereby committing a criminal offence. The window in this case would, on the face of it, have been three months.

Given that four members of the Court held that Mr Pathan was entitled to notice and to a chance to take action, it seems that in future cases a person in the same position as Mr Pathan will also need to be given notice and a chance to take action. The only sensible interpretation of the split outcome is that the opportunity to take action must be provided in the form of a delay between being informed of the revocation decision and refusal of the extension of leave. What period of time is necessary between these two events is unclear. In this case the period happened to be three months; that need not necessarily set a precedent for other future cases. In student cases a period of 60 days is considered adequate.

The lack of agreement between the judges means one will need to wait for the Home Office, which was quite content to give no notice at all, to decide what period is reasonable.

>>> UK visa fees (new): https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-12-november-2020

Updated Home Office immigration and nationality fees from 12 November 2020.

>>> Home Office response to ILPA on the EU grace period regulations

The Home Office confirmed that the grace period regulations will not provide a lawful basis for EEA or Swiss citizens or their family members to reside in the UK during the grace period who are resident in the UK at the end of the transition period but who do not have permanent residence and are not exercising Treaty rights.

>>> Request personal information held in the borders, immigration and citizenship system: https://www.gov.uk/government/publications/requests-for-personal-data-uk-visas-and-immigration/request-personal-information-held-by-uk-visas-and-immigration

Parts of the service previously closed to coronavirus (COVID-19) have now resumed: you can make a request by post. The service to provide paper records is still unavailable due to coronavirus.

>>> Health and Care visa: guidance for applicants: https://www.gov.uk/government/publications/health-and-care-visa-guidance-for-applicants?utm_source=2084db9f-c0e6-483a-ac95-bedb7a31d291&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

First Guidance published

>>> Coronavirus (COVID-19): advice for UK visa applicants and temporary UK residents: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents?utm_source=93366226-2655-491a-8e29-05e948a18ceb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Updated concession on p 94 including: "any visitor whose period of leave expires beyond 31 August 2020, is still allowed to make their application from within the UK where they would usually need to apply for a visa from their home country on a limited, case by case basis. We will expect applicants to prove that their application is urgent and for them to provide a valid reason why they cannot apply from outside the UK as a result of COVID-19."

>>> Appendix FM (Financial): https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members?utm_source=2c14fab8-9e2e-42f4-83c2-7915c1026e4b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Updated maintenance document in respect of the COVID-19 financial requirement concessions.

>>> Human rights claims on medical grounds : https://www.gov.uk/government/publications/human-rights-claims-on-medical-grounds?utm_source=ab903c4c-5164-4228-bee4-32dade266e55&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Changes in this version include:

- amendments for clarification of caselaw in relation to mental health; and

- amendments to the considering medical evidence section.
 

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27 October 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)

>>> Court of Appeal U-turn on ten-year lawful residence gaps: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1357.html

In Hoque & Ors v SSHD [2020] EWCA Civ 1357 the Court of Appeal addressed the issue of gaps in lawful residence in ten-year long residence applications.

It found that the previous authority of R (Masum Ahmed) v SSHD [2019] EWCA Civ 1070 – which held that any applicant who had overstayed for any period of time in between visas would be ineligible to apply for indefinite leave to remain after ten years of otherwise lawful residence – was incorrectly decided.

In the course of making its decision, both the Secretary of State and the Immigration Rules in general come in for some pretty robust criticism.

How did we get here?

To get indefinite leave to remain (ILR) on the basis of long residence, the applicant must show that they have spent ten years continuously and lawfully resident in the UK. The relevant rule is 276B:

    "276B. The requirements to be met by an applicant for indefinite leave to remain on the ground of long residence in the United Kingdom are that:

    (i) (a) he has had at least 10 years continuous lawful residence in the United Kingdom.

    …

    (v) the applicant must not be in the UK in breach of immigration laws, except that, where paragraph 39E of these Rules applies, any current period of overstaying will be disregarded. Any previous period of overstaying between periods of leave will also be disregarded where –

    (a) the previous application was made before 24 November 2016 and within 28 days of the expiry of leave; or

    (b) the further application was made on or after 24 November 2016 and paragraph 39E of these Rules applied."

If, at some stage during the ten year period, the applicant had overstayed their visa by a short period of time before making a further (successful) application, the general view (and practice) was that this period of overstaying could be disregarded by virtue of paragraph 276B(v).

That was until the Court of Appeal’s decision in Masum Ahmed.

The "two Ahmeds"

In Masum Ahmed (not to be confused with the related case of Junied Ahmed v SSHD [2019] UKUT 10 (IAC)), it was held that each of the limbs of 276B stood alone: 276B(v) could not be used to cure any previous overstaying in between periods of leave.

This meant that an applicant who had overstayed their visa by a single day during an otherwise continuous and lawful ten-year period of residence would technically fall foul of 276B(i)(a)).

At the relevant time this appeared to directly contradict the position the Secretary of State had always taken in deciding these applications, not only in practice but in her published guidance, and caused immense stress and anxiety to affected applicants.

The correct interpretation of 276B

Lord Justice Underhill gave the lead judgment of the court. He found that the part of paragraph 276B(v) allowing short periods of previous overstaying to be disregarded – referred to as ‘Element [C]’ – is flat-out in the wrong place, and should have been in paragraph 276B(i)(a). As he wrote in paragraph 35:

    "we are faced with a choice between, on the one hand, giving element [C] no effect and, on the other, treating its placing within paragraph 276B as a drafting error and applying it as if it qualified sub-paragraph (i) (a). In my view we should choose the latter. It is unfortunately not uncommon for tribunals and courts to have to grapple with provisions of the Immigration Rules which are confusingly drafted, but it is our job to try to ascertain what the drafter intended to achieve and give effect to it so far as possible. In this case it is clear from its terms what the intended effect of element [C] is, but it has been put in the wrong place. Treating it as if it appeared in sub-paragraph (i) (a) does violence to the drafting structure, but I do not believe that that is a sufficient reason not to give effect to it."

Underhill LJ was persuaded to take this view having considered the history of amendments to the provision since its introduction in 2012 (paras 36-37), the Secretary of State’s own guidance on the point (citing Pokhriyal v SSHD [2013] EWCA Civ 1568 as authority to rely on guidance where the rules are ambiguous), and also by the Secretary of State’s own representative who appeared to concede at the last minute that Masum Ahmed had been wrongly decided (paras 41-43).

It should be said that this construction was not accepted by all members of the court, with McCombe LJ taking a different approach (paras 60-96). Following argument, the other member of the panel (Dingemans LJ) appears to have initially thought Masum Ahmed was correctly decided before coming round to the construction adopted by Underhill LJ (see para 104).

Which of course is nuts and entirely goes against the idea that the law should be accessible and readily understandable to the individuals it might affect — a point not lost on their lordships.

What the Hoque?

Underhill LJ did not hold back in his criticism of the confusing state of the Rules, and is worth quoting in full (para 59):

    "This Court has very frequently in recent years had to deal with appeals arising out of difficulties in understanding the Immigration Rules. This is partly a result of their labyrinthine structure and idiosyncratic drafting conventions but sometimes it is a simple matter of the confused language and/or structure of particular provisions. This case is a particularly egregious example. The difficulty of deciding what the effect of paragraph 276B (v) is intended to be is illustrated by the facts not only that this Court itself is not unanimous but that all three members have taken a different view from that reached by a different constitution in Masum Ahmed. Likewise, the Secretary of State initially sought to uphold Masum Ahmed – contrary, it would seem to her own Guidance – but, as we have seen, shortly before the hearing executed a volte face. (This illustrates a different vice, also far from unique, that the Home Office seems to have no reliable mechanism for reaching a considered and consistent position on what its own Rules mean.) Of course mistakes will occasionally occur in any complex piece of legislation, or quasi-legislation; but I have to say that problems of this kind occur too often. The result of poor drafting is confusion and uncertainty both for those who are subject to the Rules and those who have to apply them, and consequently also a proliferation of appeals. The Secretary of State has already taken a valuable first step towards improving matters by asking the Law Commission to report on the simplification of the Immigration Rules, and I hope that action will be taken on those recommendations. But the problem goes further than matters of structure and presentation, and I would hope that thought is also being given to how to improve the general quality of the drafting of the Rules."

And despite disagreeing about the central issue in the case, McCombe LJ echoed these sentiments (para 96):  

    "After many years of trying to understand and construe infelicitous drafting in various parts of these Rules and in simply trying to see how they are supposed to work in practice, I think that there may be no solution other than to discard the present Rules and to start again."

Which will be cold comfort to the people whose appeals were dismissed in this case, but does at least leave other applicants with greater certainty on the issue of previous periods of overstaying.

 

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>>> The new SET and AN forms errors

Please be aware that there is an error in some Home Office online applications relating to the English language requirements. The forms AN and SET LR are affected. The error is that the form incorrectly states that GCSEs, A levels and Scottish National Qualifications can be relied on as evidence of satisfying the English language requirements.

The Home Office are aware of the problem and have stated that they are in the process of amending the relevant forms.

 

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02 November 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 UK’s points-based immigration system: information for EU citizens: https://www.gov.uk/guidance/the-uks-points-based-immigration-system-information-for-eu-citizens?utm_source=f3b2ab1e-9f55-42e8-8885-ba371ad8d172&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Irish citizens’ status will continue to be protected as part of Common Travel Area arrangements and therefore will not require permission to come to the UK, except in a very limited number of circumstances, and will not be eligible to apply under the new points-based immigration system.

>>> EEA nationals qualified persons: https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons?utm_source=648fb9ce-3247-4a62-ba91-fdcd1716dd60&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

This guidance document has been updated to reflect the changes introduced by the Upper Tribunal determination in KH v Bury Metropolitan Borough Council and Secretary of State for Work and Pensions (HB): [2020] UKUT 50 (AAC) which removed the requirement for EEA nationals, who have previously worked in the UK, and who subsequently become unemployed or cease activity, to provide evidence of a genuine chance of being employed in order to be recognised as a qualified person.

Please see page 24 of the guidance.

>>> Living in the UK: applying from overseas Guidance: https://www.gov.uk/guidance/living-in-the-uk-applying-from-overseas?utm_source=fc6a164f-2c34-4706-8b21-bb0ff0194f7e&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily

Added guidance for Biometric Residence Permits (BRP) expiring on 31 December 2024:

“You do not need to tell UKVI if your BRP expires on 31 December 2024 but you have leave to stay longer.
UKVI will update their information on how to update your BRP in early 2024. You do not need to do anything and your immigration status will not be affected.”

NB:  The same information has been updated for “Living in the UK: applying from within the UK”: https://www.gov.uk/guidance/living-in-the-uk-applying-from-within-the-uk?utm_source=15dc9932-a179-4296-92c4-904c5a5101a2&utm_medium=email&utm_campaign=govuk-notifications&utm_content=daily 

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04 November 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)

>>> Coronavirus and the UK immigration system

General policy (UPDATED 2 November)

People requesting exceptional indemnity/assurance need to fill in an online form to explain why they can’t leave by 30 November. 

The guidance also allows people to apply for further leave to remain in the UK even “where you would usually need to apply for a visa from your home country” — provided that the application is “urgent”.

Biometrics (UPDATED 2 November)

For a while, the Home Office stopped insisting that applicants provide a fresh set of fingerprints every time they extend their permission to stay in the UK. This concession is now limited to student visa holders.

If previous fingerprints can be reused, student applicants can send in a photo along with supporting documents. Where applicable, “this will mean you do not have to attend a UKVCAS or an SSC service point appointment to provide biometric information”.

On 3 September the Home Office published guidance on this and other changes to biometrics because of the pandemic.

Remote hearings (UPDATED 2 November)

Other appeals are being heard remotely. The Senior President of Tribunals issued an emergency practice direction on 19 March which says:

    "Where it is reasonably practicable and in accordance with the overriding objective to hear the case remotely (that is in any way that is not face-to-face, but which complies with the definition of ‘hearing’ in the relevant Chamber’s procedure rules), it should be heard remotely."

>>> Immigration judge savaged by Upper Tribunal for apparent copy-and-paste judgment

The vice-president of the Upper Tribunal has laid into a more junior immigration judge for a judgment so bad it amounted to a “failure of the judicial process”.

Vice-president Ockelton said that the judgment in question, which was littered with errors and irrelevant material apparently copy and pasted from previous judgments, was “seriously defective” and showed “serious confusion”.

The case concerned a Cameroonian woman seeking asylum in the UK. Her appeal was refused by an immigration judge named in the determination as S.T. Fox in February 2020. In a judgment dated 26 October 2020, Ockelton overturned the First-tier Tribunal decision without even the need for a hearing, sending the case back for a fresh hearing at the lower tribunal.


 

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05 November 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)

>>> Q&A for EU Settlement Scheme applications made from outside the UK

From the UK BA:

Q: If an EEA/Swiss national is granted leave to enter under the scheme, is there any requirement for them to physically enter the UK within  a certain time-frame following grant?

A: There are no additional requirements for a EEA citizen to enter the UK following a grant of status, other than those set out within AxEU;

Where an applicant is granted settled status (indefinite leave to enter or remain under Appendix EU), their status will lapse when they have been absent from the UK and Islands for a period of more than 5 consecutive years (or of more than 4 consecutive years in the case of Swiss citizens and their family members).  There are exceptions for those overseas on Crown service and those accompanying them.   
Where an applicant is granted pre-settled status (limited leave to enter or remain under Appendix EU), their status will generally lapse when they have been absent from the UK and Islands for a period of more than 2 consecutive years. There are exceptions for those overseas on Crown service and those accompanying them.

Q: If a non-EEA family member is granted leave to enter under the scheme, will they receive an entry clearance vignette in their passport? If so, will the vignette be a 30-day vignette and will they be required to enter the UK within that time-frame?

A: We provide all successful applicants to the EU Settlement Scheme with a written notification setting out their immigration status.  A non-EEA citizen will get a physical document if they do not already have a biometric residence card.  All other applicants will have their status in secure digital form.

Q: If there is no requirement for a person to physically enter the UK after they have been granted leave to enter under the scheme, will the person’s leave lapse if they do not enter the UK for the relevant period (five, four or two years) from the date the leave is granted, or from the date they last left the UK?

A: As in our response to the first question, there is a requirement for a person to physically enter the UK within timeframe dependant of the status they were granted, if they don’t wish for the status to lapse. The leave will be calculated from the time the person left the UK, unless this precedes the grant date.

Q: Appendix EU (Family Permit), para FP6(2) provides for an EU Settlement Scheme Travel Permit to be issued to a third country family member, but this is (amongst other things) only where a document previously issued to them has been lost/stolen and this has been reported to the Home Office. Is it necessary for additional Rules to be included to provide for a non-EEA/Swiss family member to be issued with a Travel Permit in a broader range of circumstances (eg where they have been granted status under EUSS following an application made from outside the UK, and do not have a valid document they could use for entry purposes)? The main concern of course is for visa nationals who may have difficulties boarding transport to the UK without a physical document confirming their valid leave under EUSS.)

A: A non-EEA national is currently only able to apply from overseas to the EUSS where they have previously been documented under the EEA regulations (otherwise they need to get an EEA or EUSS Family Permit to enter). They will be able to rely on their document under the EEA regulations until the end of the grace period after which they will need to get an EUSS family permit if they wish to join or accompany an EEA national family member to the UK. 

06 November 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)

>>> Changes to EU Settlement Scheme affect deadlines and family reunion

PART 1

Appendix EU and Appendix EU (Family Permit), which contain the rules for the EU Settlement Scheme, have received their latest revamp in the recent statement of changes (HC 813) to the Immigration Rules. The explanatory memo says that the changes “mainly reflect the end of the transition period” between the EU and the UK at 11pm on 31 December 2020.

Although the changes are necessary for the ending of the transition period, they also cater for the grace period which lasts from 1 January 2021 to 30 June 2021, and beyond. So some of the changes relate to Settlement Scheme applications made after 1 July 2021.

All the changes, with the exception of those relating to the general grounds for refusal, come into effect at 11pm on 31 December 2020. This piece covers the changes relevant to EU, EEA and Swiss citizens and does not cover Surinder Singh cases as these have different qualifying conditions.

Application deadline

By the time the grace period ends on 30 June 2021, all eligible applicants – with some exceptions covered below – are supposed to have applied to the EU Settlement Scheme. Failure to make an application by the deadline will result in the person becoming unlawfully resident in the UK (some will already be unlawfully resident). There is already significant concern about how many people will miss the deadline because they are unaware of the need to apply, or for another valid reason that has prevented them from applying.

General rule on late applications

The Brexit Withdrawal Agreement requires the UK to accept late applications where there are “reasonable grounds” for the deadline being missed. The Home Office was therefore obliged to insert a clause into Appendix EU to facilitate this.

You can see this in the new “required date” definition in Annex 1. This tells people the date that they need to apply by – not always 30 June, as discussed below – and contains a standard clause for the Home Office to accept an application after the stipulated deadline. The standard late application clause wording says:

"where the Secretary of State is satisfied that there are reasonable grounds for the person’s failure to meet the deadline [applications will still be accepted] before the end of such further period of time for the person to make an application under this Appendix as the Secretary of State considers reasonable and notifies to the person in writing".

So this is a two-part test:

- are there reasonable grounds for missing the deadline?
- has the application been made within a reasonable period from the deadline date?

Understanding how these tests will work in real life would be assisted by having a published policy. The Home Office says that there will be one “in due course” and has given a few examples of what will be in itm, yet in the meantime one needs to remain cautious about how late application requests will pan out.

The deadline is not 30 June for everyone

The usual deadline is 30 June 2021, so most people who miss that deadline will need to rely on the exception outlined in the last section. However, there are other deadlines for some categories. These are:

- Pre-settled status holders have until the end of their grant of limited leave to remain to apply for settled status (though they can apply as soon as they have five years’ continuous UK residence).
- For family members coming to join their sponsor in the UK holding an Appendix EU Family Permit, they have three months to apply if arriving after 1 April 2021.
- For a qualifying family member who holds leave to remain under another part of the Rules or outside of them, they must apply before end of that leave – even if this is after 30 June 2021.
- For a person exempt from immigration control, they have 90 days from the date they cease to be exempt to make an application (effectively deemed leave).
- Surinder Singh families where the relationship existed before 31 January 2020 (unless a child), have until 29 March 2022 to move back to the UK and apply.

The “required date” definition confirms that paragraph 39E of the Rules, which normally applies to out-of-time immigration applications, does not apply to Appendix EU. If paragraph 39E did apply, only 14 days would be allowed for late applications.

Sponsoring family members

The statement of changes also gives effect to some of the rights that the Withdrawal Agreement gives to family members of EEA citizens.

Some of these family reunion rights are already up and running under Appendix EU (Family Permit). But up until now it has only needed to cater for non-EEA family members who require permission to join their sponsoring family member in the UK. During the transition period there has been no need to have family reunion rights for EEA family members — they could simply travel to the UK under free movement law and apply to the Settlement Scheme in their own right.

From 1 January 2021, EEA citizens who have no previous UK residence to rely on – or who have had a previous UK residence that has been broken by an extended absence – will need to be sponsored by their EEA family member in the UK. It will be possible to sponsor someone under the Settlement Scheme rules so long as the family relationship existed by the time the transition period ends, or if they are a child born or adopted at any point in the future.

The types of family relationships that can be sponsored are straightforward enough. But the situation gets a touch confusing when trying to figure out which application route needs to be followed: there are options available under by Appendix EU and Appendix EU (Family Permit). Some family members have to apply from overseas, whereas others can apply in the UK.

To figure out which application route is available for the family member in question, one needs to look to the newly inserted paragraphs EU2A, EU3A, EU11A and EU14A. There are also new concepts in Annex 1: “relevant sponsor” , “joining family member of a relevant sponsor” and a second definition of “relevant EEA citizen”. This last concept now has two definitions depending on whether the application is made in the grace period or from 1 July 2021.

The purpose of having two definitions for an EEA citizen is so that, during the grace period, the sponsoring EEA citizen does not have to have their own settled or pre-settled already in place to sponsor a family member, as long as they can show that they would be granted it were they to apply. It’s still easier for the sponsoring EEA citizen to have settled or pre-settled status before the family member applies, but it is not obligatory. From 1 July 2021, this will not be the case: only those EEA citizens with settled or pre-settled status will be able to sponsor their family members under the Settlement Scheme.

PART 2

There are, roughly speaking, three possible routes for family members.

1. Existing residents

Family members who were already resident in the UK before the end of the transition period can continue to apply under Appendix EU in the way that they would do today. They will continue to meet the definition of a “family member of a relevant EEA citizen” and, importantly, do not need immigration status to apply. Their applications must be made by 30 June 2021.

2. EEA citizens applying after the grace period

Family members without UK residence before the end of the transition period, or whose continuous residence has been broken, fall under a new definition: “joining family member of a relevant sponsor”. This applies to both EEA citizens and third country nationals. Family members who meet this definition can apply for pre-settled status or settled status outside of the UK using the overseas application process. Paragraphs EU11A and EU14A say that applications made in the UK are only an option if the applicant is not in the UK on a visit visa. This is obviously designed to close off the temptation for EEA family members to enter through passport eGates and then apply.

This means in most cases, the “joining family member of a relevant sponsor” will be applying outside the UK. At this point EEA citizens have an advantage: in most cases, they will be able to use the “required application process” — the settled status app, in other words — to apply from overseas.

3. Non-EEA citizens applying after the grace period

Family members who are not EEA citizens can normally only use the app if they already have a biometric residence card issued under the EEA Regulations. If not, they will first need to apply for a family permit and then apply for pre-settled status under Appendix EU within three months of arrival (if arriving after 1 April 2021).

Dependency no longer assumed

There is a significant change for dependent parents. From 1 July 2021, such people must provide evidence of their dependency on their sponsor. The explanatory statement confirms:

"To provide that, consistent with the Agreements, in an application to the EUSS made from 1 July 2021, the dependency of a parent or grandparent on the resident EEA or Swiss citizen will not be assumed but will need to be evidenced."

Currently, any family member seeking to join as a dependent parent does not need to provide any evidence of their dependency on the sponsor. The applicant still has to declare that they are dependent, but unusually for the Home Office they are not asked for proof.

There is some indication of the level of dependency will be required set out in the definition of “dependent parent”:

"Having regard to their financial and social conditions, or health, the applicant cannot, or (as the case may be) for the relevant period could not, meet their essential living needs (in whole or in part) without the financial or other material support [from the sponsor]."

In line with EU case law, the reason that the parent has become dependent should not be investigated. All the same, this significant change could well mean a surge of applications from parents during the grace period to take advantage of the lower / non-existent evidential burden relating to dependency.

General grounds for refusal

Currently, it takes a serious amount of dedication to establish which of the general grounds for refusal in part 9 of the Immigration Rules applies to Settlement Scheme applications. So it is welcome that the general grounds for refusal that are relevant have been brought both Appendix EU and Appendix EU (Family Permit) in a new Annex 3 to each one.

The powers in Annex 3 relate to the cancellation, curtailment and revocation of leave to remain or enter. Which power is used will depend on the circumstances. To summarise, the situations where the Home Office may take action are where:

- The decision is justified on grounds of public policy, public security or public health in accordance with regulation 27 of the EEA Regulations 2016.
- The decision is justified on the ground that it is conducive to the public good for conduct after 31 December 2020.
- The decision is justified where the applicant – with or without their knowledge – provided false or misleading information, representations or documents were submitted and the reliance on this was material to the outcome of the application.
- The person ceases to meet the requirements of Appendix EU.
- There has been a change in circumstances that is, or would have been, relevant to that person’s eligibility for that entry clearance.
- The person has entered, attempted to enter or assisted another person to enter or to attempt to enter, a marriage, civil partnership or durable partnership of convenience after 31 December 2020.
- Indefinite leave to enter or remain can be revoked where the person is liable to deportation, but cannot be deported for legal reasons.
- Indefinite leave to enter or remain was obtained by deception.

All of these grounds are discretionary and are distinct from the suitability grounds of refusal. These changes come into effect on 1 December 2020.

“Smooth, transparent and simple”?

Article 18(1)(e) of the Withdrawal Agreement says:

"the host State shall ensure that any administrative procedures for applications are smooth, transparent and simple, and that any unnecessary administrative burdens are avoided."

As we approach the end of the transition period, the EU Settlement Scheme is getting more complex rather than less. Trying to negotiate the Appendices is difficult and overall we seem to be failing the transparent and simple test.

The family reunion rights in the Withdrawal Agreements are also guaranteed and are supposed to be straightforward. Instead we have three possible application routes, depending on the nationality of the family members and whether they have been resident in the UK before. One of these routes involves the family member having to make three separate applications to confirm their right to reside permanently (family permit, then pre-settled status, then settled status). Applicants are going to makes mistakes choosing the right process and refusals will happen; they might not be permanent refusals, but it will still be highly distressing for the families trying to exercise their right to reunite with each other.

In addition, despite the consequences of missing the deadline being so serious, we still do not know the detailed policy on late applications. The reasonable excuse examples given by the Home Office so far, whilst very important, may not cover the main reasons why eligible citizens will fail to apply: that they do not know that the Settlement Scheme exists or erroneously believe they are not required to apply.

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07 November 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 and asylum interviews exempt from English lockdown

A blanket lockdown began today — in England; other jurisdictions are available — and runs for 28 days. During that time, people are not to leave home “without reasonable excuse”. The lockdown regulations include a list of things that automatically qualify as a reasonable excuse, although it is non-exhaustive so other excuses that are reasonable will also qualify.

The list of reasonable excuses is in regulation 6 of the Health Protection (Coronavirus, Restrictions) (England) (No. 4) Regulations 2020 (SI 2020 No. 1200). There is a specific exception for visas and asylum:

    "(4) Exception 2 is that it is reasonably necessary for [the person concerned] to leave or be outside [their] home…

    (f) to access critical public services, including…

    (iv) asylum and immigration services and interviews.

By contrast, the regulations enforcing Lockdown 1.0 in March did not explicitly say that asylum and immigration services were “critical public services”. They did include a separate exception for people to “fulfil a legal obligation, including attending court or satisfying bail conditions, or to participate in legal proceedings”, which appears again in the new regulations.

The Home Office has also updated its guidance to emphasise that “our in-country immigration services (UK Visa and Citizenship Application Services, Service and Support Centres and English Language Test centres) will remain open” this time around: https://www.gov.uk/guidance/coronavirus-covid-19-advice-for-uk-visa-applicants-and-temporary-uk-residents#history

>>> Extra information request for newly established businesses

Questions the Home Office may ask the newly established Employers applying for a Tier 2 sponsorship licence:

"We note that you are a newly established business. In order to fully consider your application, we require the following information: 

1.      How you will conduct Right to Work checks. 
2.      How you will store passport, biometric residence permit, and visa copies. 
3.      How you will monitor visa expiry dates.
4.      Which contact details you keep for your employees.
5.      How often you check that the contact details for your employees are correct and up to date. 
6.      How you record the previous contact details for your employees. 
7.      How you intend to inform us if there are any significant changes in the sponsored migrant’s circumstance, and in what time frame.
8.      How you record absence history for your employees.
9.      What conditions a sponsored migrant would be entitled to, such as holidays, sick pay, accommodation, allowances etc."

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