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Важные судебные решения и новости для иммигрантов

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

>>> How new visa rules on invalidity will create more overstayers

The Home Office recently introduced a set of new validity requirements for visa applications under the Points Based Immigration System, such as the Skilled Worker route. This is significant because an invalid application doesn’t extend your permission to be in the UK while it is being considered (what’s called “section 3C leave”). So if you dutifully apply to extend your visa just before it expires, and the application is later rejected as invalid because you failed to meet a validity requirement, it will be like you never made an application. You’re now an overstayer.

Invalidity can be worse than a refusal

Validity requirements existed before but pretty much all the old ones (in paragraph 34 of the Immigration Rules, which still applies to non-Points Based Immigration System applications) were things that could be rectified. If you paid the wrong application fee, for example, the Home Office would send you a letter giving you two weeks to pay the correct fee. If you did that, your application was validated and considered valid from the date you lodged the application, so you had section 3C leave all along.

The new requirements are category-specific and import what used to be eligibility rules into the validity section. Many are things that cannot be rectified. So if you apply under UK Ancestry and you’re not a Commonwealth citizen, or you are applying in-country and do not already have permission in this category, your application is invalid. There is no way to rectify the failure to meet these two requirements.

Previously, such an application would have been refused on eligibility grounds. But because it was a valid application, section 3C leave meant you had time to work out your next steps — whether to leave the UK to avoid overstaying, or put in a different application. By contrast, you often don’t find out that your application is invalid until after your permission in the UK was due to expire. By the time you get the invalidity letter from the Home Office, you might well have been an overstayer for weeks or months without knowing it.

This will hit applicants who are applying without legal assistance harder than others. We at the Legal Centre (www.legalcentre.org) expects to see increasing numbers of clients who have lodged the wrong application, had it rejected as invalid, and are now overstayers.

But it will affect lawyers as well. If a new client comes to us the day their permission is due to expire, we can’t just fire off an application to trigger section 3C leave and worry about whether they meet all the requirements later. Previously, once we had ensured that our client’s leave was extended pending a decision, we always had the option of varying the application to another category if we discovered that they did not meet the rules for the application that had just gone in. That won’t be an option in circumstances where the initial application is invalid — you cannot vary an invalid application.

How easy is it to fall foul of a validity requirement?

Some of the new validity requirements are tricky. If you apply in the Skilled Worker route and you currently have leave outside the Rules, that’s an invalid application. If a new client shows their lawyer a residence permit endorsed with “leave to remain”, they have no way of knowing just from looking at the permit whether it’s leave outside the Rules.

This makes it more important than ever for employers to do right to work checks on time. An employee could produce evidence that they made an in-time application but it can later turn out to be invalid so they never actually made an application before their permission expired. A timely right to work check will protect the employer if that turns out to be the case.

The Validation, variation and withdrawal of applications guidance has been updated in light of the new category-specific validity requirements and is definitely worth reading. It’s useful to note that if you apply on the wrong form, you will at least be given the chance to rectify that:

    "If an applicant has not applied on the correct specified form, you must contact them using the validation warning template ICD 4944 on Doc Gen or the IC and OOC validation reminder on Atlas telling them, (indicating what the correct form is) and give them 10 working days to submit an application on that form."

But when it comes to requirements that cannot be met, even if you were given the opportunity to rectify the error, your application will just be rejected as invalid:

    "Where it is clear that the applicant cannot meet the validity requirement, for example, where the applicant did not meet a minimum age requirement or a nationality requirement, and you do not consider it appropriate to exercise discretion (for example if they missed the age requirement by one day), providing a further opportunity to provide evidence that they do meet the requirement would be futile. In these cases you may reject the application without seeking further evidence using the ‘Validation rejection no write out’ template on Atlas."

Is there anything that can be done in such circumstances?

Validity hacks

If one had a case where it became clear that the client wouldn’t meet an unfixable requirement (such as having to be a Commonwealth citizen) after they submitted their application, one would be tempted to put in a covering letter that said, for example, “This is an application for leave outside the Rules”. This might allow the Home Office to treat the application as invalid because the wrong form was used and give the applicant an opportunity to remedy the invalidity by lodging a different form, rather than reject it as irreparably invalid because they’re not a Commonwealth citizen. Note that it is difficut to be sure that this option will work for sure, but if the alternative is invalidity, it might be worth a try.

Of course, if by the time that you discover that one of the validity requirements is not met, the applicant still has permission, the simple solution is just to lodge a different, valid, application before permission expires.

In cases where there is any doubt about whether a validity requirement is met, and expiry of permission is imminent, one approach could be to lodge a different application — one to which the old paragraph 34 validity requirements apply. The one could then vary it to the right application once the one has had the chance to properly assess the validity requirements of that route.

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

>>> Home Office floats automatic deportation after six-month sentence

The Home Office may cut the minimum prison sentence required to trigger automatic deportation from 12 months to six months, it emerged over the holidays. The Mail and Times appear to have been briefed independently on the idea, with the former reporting that “the measures are likely to form part of the Sovereign Borders Bill, which is due to be published within the next few months”.

>>> Important Court of Appeal judgment on expert evidence and “credibility”: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1746.html

The Court of Appeal has handed down a major judgment on the correct approach to assessing whether a person is a victim of trafficking: MN v Secretary of State for the Home Department [2020] EWCA Civ 1746. Although this was the central question in the case and huge resources were devoted to addressing it, the judgment is of much wider interest for what it says about expert evidence and so-called “credibility”.

>>> Immigration Rules changes – CP 361: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&ved=2ahUKEwitsd7tsoLuAhWmzoUKHUaGALMQFjAAegQIAxAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F948598%2FCCS207_CCS1220730834-001_-__CP_361__-_EXPLANATORY_MEMORANDUM__Web_Accessible_.pdf&usg=AOvVaw3cGeAu6jHdce-1N7XeAJLT

The changes came into effect on 31 December 2020, the day that the statement of changes was published, and as summarised in the Explanatory Memorandum the Immigration Rules were amended as follows:

• Implement commitments made in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility and make changes on Mode IV commitments (the part of a trade agreement which sets out what persons of one party in an agreement can do in the other for the purpose of providing a service) within the UK-EU Trade and Co-Operation Agreement.

• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments on contractual service suppliers and independent professionals in the Temporary Agreement between the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland on Services Mobility. This agreement requires us to grant entry for up to 12 months and extend our provisions to nationals and permanent residents of Switzerland.

• Make changes to Appendix T5 (Temporary Worker) International Agreement Worker to implement commitments made in the Services chapter of the UK-EU Trade and Co-Operation Agreement on length of stay for European Union contractual service suppliers and independent professionals.

• Amend the Visitor rules to implement the United Kingdom’s commitments on short-term business visitors in the Services chapter of the UK-EU Trade and Co-Operation Agreement.

• Correct a small number of minor drafting errors made in the Statement of Changes to the Immigration Rules (HC 813) laid on 22 October 2020.

 

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0 January 2021 – 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)

>>> Return to the biometric re-use ?

From the ILPA briefing, re: Home Office biometrics re-used (currently suspended for most of the immigration categiries)

"In that meeting, the Home Office provided an operational update. They confirmed that biometric reuse would form part of UKVI’s strategy moving forward. Appointment availability and the conduct of staff (in particular offering legal advice) was discussed. It was agreed that ILPA would continue to act as a conduit for Members' issues. From the end of January, ILPA will have fortnightly meetings with Sopra Steria, where we will continue to press for improvements to their services, in particular regarding appointment availability."

08 January 2021 – 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 Simplification - Response to the Review Committee

For those who likes to "dig deeper" - read the full review here: https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=&cad=rja&uact=8&ved=2ahUKEwiIgta48ozuAhVGyYUKHcYKBD4QFjAAegQIARAC&url=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F914010%2F24-03-2020_-_Response_to_Law_Commission_for_publication.pdf&usg=AOvVaw1gQWFphZoaoeZV0QAdH6n_

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11 January 2021 – 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 new UK approach to refugees and safe third countries: https://www.gov.uk/government/publications/inadmissibility-third-country-cases

The government has introduced important new rules on the handling of claims for asylum with effect from 1 January 2021. Guidance for Home Office asylum caseworkers was published the day before, on 31 December, fleshing out some of the operational details. What is not in the policy document is as revealing as what is.

The headline is that any person who travelled to the UK through a safe country will have their asylum case declared inadmissible and in theory face removal to any other safe country around the world willing to accept them. The likely reality of what happens in practice is very different: more delays in the asylum process and very few if any third country removals.

The overall impression is that the rules are completely unworkable as they stand, even if there were removal agreements with other countries. Which there are not, and a person cannot be sent to a country of which they are not a citizen without the agreement of that country. The rules build in an automatic period of delay in the processing of new asylum claims and are replete with opportunities for legal challenge. The civil servants who drafted them expect the rules to be “workable” in the sense of removals actually taking place to safe third countries. The rules are about politics and presentation, not governance.

 

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14 January 2021 – 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)

>>>  Does the Irish Republic citizens require visas now to enter, live and work in the UK ?

The answer is "No" in most cases:

Section 3ZA of  the Immigration and Social Security Co-ordination (EU Withdrawal) Act 2020 states that:

"Irish citizens

(1)An Irish citizen does not require leave to enter or remain in the United Kingdom, unless subsection (2), (3) or (4) applies to that citizen."

>>> A student cannot sponsor a partner or children unless such a student is doing a postgraduate degree. This excludes undergraduate bachelor’s degrees as well as the sponsorship by the foreign government.

You have been warned !

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18 January 2021 – 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)

>>>  Criminal Court of Appeal ignores immigration judge’s trafficking determination: https://www.bailii.org/ew/cases/EWCA/Crim/2021/4.html

In BTT v R [2021] EWCA Crim 4 the Court of Appeal (Criminal Division) required a man appealing a conviction for growing cannabis to give oral evidence about his account of human trafficking. It then relied on this evidence to depart from the Upper Tribunal’s decision that he was a victim of trafficking at the time he committed the offence and during the subsequent trial. The court commented:

    "Having heard and seen the applicant give evidence, this Court is not really assisted by the decision of the Upper Tribunal which was dependent upon witness statements untested by cross-examination which put forward an account which cannot stand with what the applicant said in the witness box. Likewise, the expert evidence cannot lend credibility to the account which the applicant has now put forward."

A concerning case which suggests that the Court of Appeal might be becoming more reluctant to entertain criminal appeals by trafficking victims.

 

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20 January 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>>  Home Office can make exceptions to rules stopping asylum seekers working

The Upper Tribunal has declared the government’s strict policy on asylum seekers working to be unlawful insofar as it doesn’t mention that exceptions can be made. The case is R (C6) v Secretary of State for the Home Department (JR/1414/2020) and comes hard on the heels of a very similar decision by the High Court last month.

 

 

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22 January 2021 – 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)

>>>  Minor offence can trigger deportation, human rights court confirms

The European Court of Human Rights has confirmed that the final offence committed by someone before deportation action is taken against them does not need to be particularly significant if they have a history of serious offending. In Munir Johanna v Denmark (application no. 56803/18) and Khan v Denmark (application no. 26957/19) the court has confirmed the earlier decision of Miah v the United Kingdom (application no. 53080/07).

 

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23 January 2021 – 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 can an immigration decision involving human rights be appealed? https://www.bailii.org/uk/cases/UKUT/IAC/2020/377.html

The distinction between a “claim” and an “application” was at the heart of the Upper Tribunal’s recent decision in Yerokun (Refusal of claim; Mujahid) Nigeria [2020] UKUT 377 (IAC).

Mr Yerokun made an application for permission to remain in the UK based on his human right to private and family life. This application was refused, but he was granted leave “outside the Immigration Rules” for a period of six months. Since his human rights application for a longer stay had been refused, he appealed. In 2018, the First-tier Tribunal agreed that he had a right of appeal against the refusal and proceeded to allow his appeal.

The Upper Tribunal has now reversed that decision on the basis that there is no right to appeal against the refusal of a human rights application, only against refusal of a human rights claim.

What’s the difference?

Section 82(1) of the Nationality, Immigration and Asylum Act 2002 provides:

    "A person (“P”) may appeal to the Tribunal where—

    (a) the Secretary of State has decided to refuse a protection claim made by P,

    (b) the Secretary of State has decided to refuse a human rights claim made by P, or

    (c) the Secretary of State has decided to revoke P’s protection status."

It was not disputed that Mr Yerokun had made a human rights claim (i.e. a claim that removing him from the UK would breach his human rights). But that claim was not refused. It was accepted: he was granted permission to remain in the UK for six months. It was the application to stay for a longer period which was refused. As such, there was no right of appeal:

    "A person who makes an application by reference to a claim seeks some particular benefit arising from the circumstances of his case. The decision-maker may recognise the circumstances but be disinclined to grant the particular benefit sought. There is nothing contradictory, therefore, in refusing the application while recognising (and so not refusing) the claim. The statute provides a right of appeal against refusals of claims… but it says nothing about a right of appeal against the refusal of an application. [Paragraph 12] "

This conclusion was reinforced by the fact that, under section 104(4B) of the 2002 Act, an appeal must be treated as abandoned if the appellant is granted permission whilst his appeal is pending:

    "The effect of this is that if a person’s human rights claim is refused, and he appeals, the grant of a period of leave, however short, brings his appeal to an end. It is inconceivable that there was intended to be a right of appeal where the same grant was made before the appeal could be launched. [11] "

A similar issue arose in Mujahid [2020] UKUT 85 (IAC) which involved the Home Office refusing an application for indefinite leave to remain (a permanent visa) but granting limited leave (a temporary visa). There was also no right of appeal in that case. The only way to challenge such a refusal is the much more restrictive and expensive judicial review process.

The official headnote

The reasons given by the President in R (Mujahid) v First-tier Tribunal and SSHD [2020] UKUT 85 (IAC) are reinforced by two further factors:

(1) Under s 104(4A) a human rights appeal is deemed to be abandoned if a period of leave, however short, is granted after the appeal is brought. It is inconceivable that it was intended that a refusal of an application accompanied by a grant of leave was intended to generate a right of appeal.
(2) There is an inherent difference between an application and a claim and the refusal of the one does not imply or entail the refusal of the other, even where the application includes a claim.

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23 January 2021 – 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 (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_medium=email&utm_campaign=govuk-notifications&utm_source=5dd1eccb-71c6-4194-b4b4-2ef3aef3d22f&utm_content=daily

Updated exceptional assurance visa expiry dates to 1 January 2021 and 28 February 2021.

Updated content under ‘If you intend to stay in the UK’ section:

"If you decide to stay in the UK, you should apply for the necessary permission to stay to regularise your stay. You’ll be able to submit an application form from within the UK, whereas you would usually need to apply for a visa from your home country.

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

The terms of your permission will remain the same until your application is decided. If you are switching into work or study routes you may be able to commence work or study whilst your application is under consideration, depending on the terms of your current permission.

You are also able to apply for leave to remain to regularise your stay if you have been issued with ‘exceptional assurance’. You must submit your application before the expiry of your ‘exceptional assurance’."

>>>  3C and 3D leave

Immigration staff guidance on how to prevent an individual from becoming an overstayer while they are awaiting or appealing a decision: https://www.gov.uk/government/publications/3c-and-3d-leave?utm_medium=email&utm_campaign=govuk-notifications&utm_source=687bbb87-7e80-402e-8bc6-c851d1237f98&utm_content=daily

The guidance has been amended to reflect caselaw that where a decision is withdrawn section 3C resurrects from the time the decision is withdrawn. Where an out of time appeal or administrative review application is accepted section 3C resurrects from the time the decision to admit the out of time appeal or administrative review is made.

>>> EU Settlement Scheme caseworker guidance: https://www.gov.uk/government/publications/eu-settlement-scheme-caseworker-guidance?utm_medium=email&utm_campaign=govuk-notifications&utm_source=a7a68fca-8810-4b1c-a0de-d2bc104fb293&utm_content=daily

Updated EU Settlement Scheme: EU, other EEA and Swiss citizens and their family members with amendments to appendix EU made in statement of changes in immigration rules: HC 813, laid on 22 October 2020.

>>> Global Talent caseworker guidance: https://www.gov.uk/government/publications/global-talent-appendix-w-workers?utm_medium=email&utm_campaign=govuk-notifications&utm_source=3ed14d10-b08f-4f45-89a4-44ef947837c7&utm_content=daily

Simplified stage 2 application form guidance in key facts, updated Isle of Man guidance, and redirected hyperlinks to appropriate government guidance.

>> Points-based system: evidential flexibility: https://www.gov.uk/government/publications/points-based-system-evidential-flexibility?utm_medium=email&utm_campaign=govuk-notifications&utm_source=28342015-69f7-409e-9a37-492d45f36c34&utm_content=daily

Changes made to reflect the Immigration Rules made in October 2020.

>>> Immigration Skills Charge process guidance: https://www.gov.uk/government/publications/immigration-skills-charge-process-guidance?utm_medium=email&utm_campaign=govuk-notifications&utm_source=522d6e14-5190-4614-947f-83aee064f15c&utm_content=daily

Updated guidance on who is exempt from paying the immigration skills charge, priority visa details and the ISC refund process.
 
>> Criminal investigation: sham marriage: https://www.gov.uk/government/publications/criminal-investigation-sham-marriage?utm_medium=email&utm_campaign=govuk-notifications&utm_source=30e98ae9-8294-42fe-ac0d-da5922c0e77d&utm_content=daily

Revised to include up-to-date definition of sham marriage, update of links to legislation and guidance.

 

 

 

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25 January 2021 – 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)

>>>  Procedural unfairness arguments unlikely to help in Points Based System refusals: https://www.bailii.org/ew/cases/EWCA/Civ/2021/19.html

The Court of Appeal has held that there is no right based on procedural fairness for a migrant to be offered a chance to cure deficiencies in his or her Points Based System application before it is refused. The relevant case is the case of R (Taj) v Secretary of State for the Home Department [2021] EWCA Civ 19.

>>> Care home workers at risk of missing out on EU settled status: https://www.jcwi.org.uk/when-the-clapping-stops-eu-care-workers-after-brexit

Care workers eligible for the EU Settlement Scheme seem unaware of the need to apply, a new report has found.

The Joint Council for the Welfare of Immigrants (JCWI) surveyed 290 care home workers and found that as many as one in three had never heard of the Settlement Scheme, which allows EU citizens and their family members who apply before 30 June 2021 to remain in the UK despite Brexit.

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27 January 2021 – 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)

>>> Sopra Steria - release of free appointments

The Sopra Steria has confirmed that they have been releasing the free appointments at 09.00 rather than at midnight.

>>>  A person who lived in UK under assumed identity for over a decade wins right to stay: https://www.bailii.org/uk/cases/UKUT/IAC/2020/376.html

Stealing someone’s identity is not a “false representation” for the purposes of a 20-year long residence application, the Upper Tribunal has found. The case is Mahmood (paras. S-LTR.1.6. & S-LTR.4.2.; Scope) Bangladesh [2020] UKUT 376 (IAC).

The official headnote:

1. Paragraph S-LTR.1.6. of Appendix FM does not cover the use of false representations or a failure to disclose material facts in an application for leave to remain or in a previous application for immigration status.

2. Paragraph S-LTR.4.2. of Appendix FM is disjunctive with two independent clauses. The Home Office is consequently obliged to plead and reason her exercise of discretion to refuse an application for leave to remain based on one or both of those clauses.

3. The natural meaning of the first clause in paragraph S-LTR.4.2 requires that the false representation or the failure to disclose any material fact must have been made in support of a previous application and not be peripheral to that application.

4. The use of the words ‘required to support’ in the second clause in paragraph S-LTR.4.2 confirms a compulsory element to the use of the document(s) within the application or claim process, and the obtaining of the document(s) must be for the purposes of the immigration application or claim.

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28 January 2021 – 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)

>>> Some overstayers (children) may be eligible for Settlement (ILR): https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-8-family-members#requirements-for-indefinite-leave-to-remain-in-the-united-kingdom-as-the-child-of-a-parent-parents-or-a-relative-present-and-settled-or-being-admitted-for-settlement-in-the-united-kingdom

Overstayers may apply for ILR under Para 298.

The enormous complexity of the UK Immigration Rules. Have a look at the Paragraph 298, for example, as an illustration of the irregular way/exception when "impossible for some is possible for the other". Go figure (c).

>>> Visa and immigration reconsideration requests: https://www.gov.uk/visa-and-immigration-reconsideration-requests

You might be able to ask for the decision on your visa or immigration application to be reviewed if you applied in the UK.

This is known as a ‘reconsideration request’. It isn’t a formal appeal or an administrative review. You can’t ask for a reconsideration if you have a right to an appeal or a review.

 

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29 January 2021 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org - +44(0)3300010342, +44(0)7791145023 (WhatsApp/Viber)

>>> Upper Tribunal has no jurisdiction to correct appeal deadline error: https://www.bailii.org/uk/cases/UKUT/IAC/2020/378.html

Ndwanyi (Permission to appeal; challenging decision on timeliness) Rwanda [2020] UKUT 378 (IAC) is about how a respondent can challenge a decision that an application for permission to appeal is in time, when in fact it is not in time.

In this case the Home Office had lost the appeal in the First-tier Tribunal and sought permission to appeal. They had 14 calendar days to do so. The decision was promulgated on 20 December 2019, which meant the deadline for filing the application for permission to appeal was 6 January 2020. The Home Office filed the application on 7 January 2020 and asked for an extension of time, saying that it did not have enough staff available over Christmas to apply on time.

A clerk put a sticker on the file confirming that the Home Office required a one-day extension of time. The judge who received the application countermanded this, wrongly believing that the Christmas and New Year bank holidays meant that the Home Office did not require an extension. He considered (and granted) the application as though it were in time.

Mr Ndwanyi asked the Upper Tribunal to refuse to hear the appeal because of the timeliness issue. The Home Office agreed that the permission application was out of time but that the Upper Tribunal itself could exercise discretion to extend the deadline.

The Upper Tribunal held that it had no jurisdiction to fix the judge’s decision because of the Appeals (Excluded Decisions) Order 2009 (SI 2009/275). President Lane also held that there is no jurisdiction to exercise the discretion to extend time enjoyed by the First-tier Tribunal if that tribunal has considered the issue of timeliness already and that it would be inappropriate to use the slip rule for this type of error.

As a result, the only option for challenging this type of decision is judicial review.

The official headnote:

"If a decision of the First-tier Tribunal that an application for permission to appeal was in time represents the clear and settled intention of the judge then, as it is an ‘excluded decision’ (see the Appeals (Excluded Decisions) Order 2009 (SI 2009/275, as amended), it may only be challenged by way of judicial review; that remains so even if both parties agree that the decision is wrong in law. Only if the judge has overlooked the question of timeliness and any explanation for delay will the grant be conditional upon the Upper Tribunal exercising a discretion to extend time (see Boktor and Wanis (late application for permission) Egypt [2011] UKUT 442 (IAC))."

>>> BNO visa app launches in February 2021: https://www.gov.uk/government/news/hong-kong-bno-visa-uk-government-to-honour-historic-commitment

The Home Office has confirmed that the special visa scheme for people from Hong Kong with British National (Overseas) citizenship opens for applications from 31 January 2021.

The application process is digital first: applicants with a biometric chip in their passport will be able to use a smartphone app, just like with the EU Settlement Scheme, rather than turn up to a visa appointment in person. This Covid-friendly process only starts up on 23 February, though. In that sense you could argue that the start of the scheme has in fact been delayed by a few weeks.

As a holding measure, BNO citizens have been able to get leave outside the Rules at the border since last summer. This allows people to enter and stay in the UK legally while waiting for the BNO visa scheme proper to begin. The Home Office has extended that concession until “after the route becomes fully digital”. So far, around 7,000 BNO citizens and their family members have been granted leave outside the Rules in this way.

The Home Office press release draws attention to the economic benefits expected from any influx of Hongkongers. While precise forecasting is impossible, the central estimate is that between 258,000 and 322,000 BNO citizens and their family members could come to the UK. “This”, the department proclaims, “would suggest a net benefit to the UK of between £2.4 billion and £2.9 billion over five years”.

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02 February 2021 – 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)

>>> Appeal judges reject challenge to domestic abuse policy: https://www.bailii.org/ew/cases/EWCA/Civ/2021/59.html

In FA (Sudan) v Secretary of State for the Home Department [2021] EWCA Civ 59, the Court of Appeal has confirmed that someone applying to stay in the UK under the domestic abuse rules must have had permission to remain as a partner. This appeal was a bold challenge to the validity of that requirement, on the basis that it was discriminatory.

This decision leaves intact the bright-line rule that a migrant must have had a spouse or partner visa to be able to use the domestic abuse scheme. The route remains closed off to those with the wrong immigration history.

 

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08 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Home Office immigration and nationality fees: 31 January 2021: https://www.gov.uk/government/publications/visa-regulations-revised-table/home-office-immigration-and-nationality-fees-31-january-2021

Updated Home Office immigration and nationality fees from 31 January 2021.

>>>  Coronavirus (COVID-19): Covid Visa Concession Scheme (CVCS): https://www.gov.uk/government/publications/coronavirus-covid-19-covid-visa-concession-scheme-cvcs?utm_medium=email&utm_campaign=govuk-notifications&utm_source=7a537abf-dc14-4599-8e3a-2503063f8799&utm_content=daily

The Home Office have clarified the Covid Visa Concession Scheme (at the bottom of page 7). It is now clear that those granted 3 months leave outside the rules will not be prejudiced by that status in future applications e.g. Skilled Workers cannot normally have last held leave outside the rules.

>>> 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_medium=email&utm_campaign=govuk-notifications&utm_source=ece9d335-d6d3-4130-b326-987a4a84232a&utm_content=daily

Updated covid concessions.

"A commitment has been made to ensure family and private life applicants are not unduly affected by reasons beyond their control due to COVID-19. The pandemic may have caused disruption to travel plans, causing breaks in continuous lawful immigration status/residence requirements.

Due to the impact of COVID-19, some applicants seeking to start, extend or complete a route to settlement on the basis of family or private life, may be unable to meet the immigration status/continuous residence eligibility requirements of Appendix FM. This may be due to travel restrictions, closure or inaccessibility to a visa application centre (VAC) or illness.

Ordinarily, there is no flexibility for you to exercise discretion in allowing the lawful immigration status and continuous residence eligibility requirements to be met. However, you may exercise discretion to allow an applicant to start, stay on (extend – apply for further leave) or complete a route to settlement despite them being in the UK as a visitor or with leave of six-months or less, in-country or overseas for a short period without leave, where it is shown that they were not able to travel or apply due to COVID-19 between March and 31 August 2020.

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 or for them to provide a valid reason why they cannot apply from outside the UK as a result of COVID-19.
 
If a person is in the UK with 6 months’ leave as a fiancé, fiancée or proposed civil partner and their wedding or civil ceremony has been delayed due to coronavirus they may be granted additional time to stay, also known as ‘exceptional assurance’, to complete their wedding or civil partnership if their ceremony has been disrupted by COVID-19. Any period of stay under exceptional assurance will extend the same conditions as their initial leave granted under this route.

You can disregard a short period of time spent overseas where leave to enter or remain expired and an applicant could not return to the UK to renew their leave due to COVID-19, provided an applicant extends their leave and/or makes an application for leave to enter as soon as practicable. The break in continuous residence may be because a VAC was closed or inaccessible, and the applicant was unable to apply for further leave to enter – where they should have been applying for leave to remain, or the applicant returned to the UK as a visitor or following a visa waiver or carrier waiver in order to complete an application for further leave once back in the UK. In some cases, an applicant with leave, applying for further leave or ready to apply for settlement, may not have been able to travel back to the UK, but instead was able to access a VAC to apply for indefinite leave. Appendix FM would not ordinarily allow for a period of leave to enter or remain, followed by another period of leave to enter in order to be eligible to apply for settlement after five-years. However, where the application was made in order to maintain a continuous period of lawful residence, you may take that period of leave to enter into account.

You may disregard a period of leave outside the Immigration Rules granted by Border Force to allow an applicant to re-enter the UK following a period of being stranded overseas due to COVID-19 when their leave expired between 1 March 2020 and 31 May 2021.

>>> Chapter 08: appendix FM family members (immigration staff guidance): https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members?utm_medium=email&utm_campaign=govuk-notifications&utm_source=e21f303e-7ec6-4769-a852-7ee98636786f&utm_content=daily

"Instruction for handling cases which raise the impact of the 2020/21 COVID-19 pandemic as grounds for not meeting the minimum income requirement in an entry clearance, leave to remain or indefinite leave to remain applications under the family Immigration Rules.

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

Income received via the Coronavirus Job Retention Scheme or the Coronavirus Self-Employment Income Support Scheme can count as employment or self-employment income. Where there is evidence of a temporary loss of income due to COVID-19 during the period 1 March 2020 and 31 May 2021 you will apply the following concessions:

• a temporary loss of employment income between 1 March and 31 May 2021 due to COVID-19, will be disregarded provided the minimum income requirement was met for at least 6 months immediately prior to the date the income was lost - this is for a loss of employment income between 1 March 2020 to 31 May 2021 due to COVID-19 an applicant or sponsor furloughed under the Government’s Coronavirus Job Retention Scheme will be deemed as earning 100% of their salary
• a temporary loss of annual income due to COVID-19 between 1 March 2020 and 31 May2021 will generally be disregarded for self-employment income, along with the impact on employment income from the same period for future applications.
• evidential flexibility may be applied where an applicant or sponsor experiences difficulty accessing specified evidence due to COVID-19 restrictions

>>> Family migration: adequate maintenance and accommodation: https://www.gov.uk/government/publications/family-migration-adequate-maintenance-and-accommodation?utm_medium=email&utm_campaign=govuk-notifications&utm_source=3623efb7-ae97-4c3f-8e98-1c6770000988&utm_content=daily

Updated covid concessions.

>>> Returning residents: https://www.gov.uk/government/publications/returning-residents?utm_medium=email&utm_campaign=govuk-notifications&utm_source=057535ea-72a5-4822-b24d-49f3f55dce32&utm_content=daily

Added amendments relating to COVID related absences (see p. 12).

 

 

 

 

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10 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Criminal courts scrap rule requiring defendants to state their nationality pre-trial: https://www.legislation.gov.uk/uksi/2021/40/contents/made

As of yesterday, the nationality requirement is no more. This is thanks to the Criminal Procedure (Amendment) Rules 2021 (SI 2021 No. 40 (L. 1)), the relevant provisions of which came into force on 8 February 2021.

>>> Government unlawfully denied refugee status to Egyptian dissident on national security grounds: https://www.bailii.org/ew/cases/EWCA/Civ/2021/113.html

In the latest round of the legal saga involving Egyptian dissident Yasser Al-Siri, the Court of Appeal has ruled that the Home Office acted unlawfully in only granting him restricted leave to remain after an earlier First-tier Tribunal decision that he is a refugee. There was, the court found, no fresh evidence allowing the Home Office to get around the First-tier Tribunal’s decision (the Ladd v Marshall test). The case is Al-Siri v Secretary of State for the Home Department [2021] EWCA Civ 113.

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11 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Get a faster decision on your visa or settlement application: https://www.gov.uk/faster-decision-visa-settlement/eligible-visas-when-applying-inside-the-uk

 Eligible visas when applying from inside the UK

You can apply for a faster decision on certain visa applications or applications to settle in the UK.

The table lists the eligible visas and whether you can pay to get a decision:

    - within 5 working days
    - by the end of the next working day

>>> Home Office given 48 hours to release immigration detainee despite coronavirus: R (SH) v Secretary of State for the Home Department [2021] EWHC 177 (Admin)

In an interim relief decision the High Court has ordered the release of an immigration detainee within 48 hours, indicating that judges will not allow the Home Office to use the pandemic as cover to justify long “grace period” delays in releasing detainees. As regular readers and practitioners know, those delays were common even before the pandemic.

>>> High Court judge threatens Priti Patel with contempt of court proceedings: https://www.bailii.org/ew/cases/EWHC/Admin/2021/240.html

A High Court judge has raised the prospect of contempt of court proceedings against the Home Secretary, Priti Patel, after her department breached a mandatory injunction. Mr Justice Chamberlain made the ominous comments in the case of Mohammad v Secretary of State for the Home Department [2021] EWHC 240 (Admin).

 

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12 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Reintroduction of some in-country priority visa services: https://www.gov.uk/faster-decision-visa-settlement/eligible-visas-when-applying-inside-the-uk

From 20 January we have reintroduced the next working day Super Priority (SPV) service and the 5 working day Priority (PV) to in-country work and student application routes.
All other in-country immigration application routes will continue to offer a standard service at this time. The service will be reintroduced to further in-country routes as and when those factors allow.

>>> Administrative fee for cancelling appointments

Sopra Steria have introduced a £10.00 admin free for cancelling appointments, even where it is cancelled more than 48 hours before the appointment. This is preventing applicants from being able to search for better appointment availability.

>>> 240 days to submit the biometrics

From the UK BA:

Completing the application and booking a UKVCAS appointment

Customers are reminded that once they have completed their application on Access UK and have been transferred to the UKVCAS website, that they have 240 days to submit their biometrics.

If customers do not complete their biometric enrolment within 240 days their application will be closed, and they will need to recommence their application process.

>>> Unusual costs decision against the Home Office: https://www.bailii.org/ew/cases/EWCA/Civ/2021/138.html

In R (Mozumder) v Secretary of State for the Home Department [2021] EWCA Civ 138, the Court of Appeal has dealt with an unusual costs issue arising from the furore over alleged cheating in English language tests.

The issue was how costs should be apportioned from a judicial review which challenged removal on the ground that an out-of-country appeal was not an effective remedy where the individual had been accused of cheating on his English language test. After the judicial review, the appellant had subsequently made a separate appeal against removal on the basis of his human rights and the First-tier Tribunal found that he had not cheated. The Court of Appeal decided that it could take into account the later tribunal decision, even though it had not been available to the judge at first instance, and that therefore the appellant had been successful and was entitled to his costs:

    "If Mr Mozumder had been found by the FTT judge to have cheated and thus had his appeal rejected I for my part would have been extremely reluctant to award him any costs at all. Since it has now been held by the appropriate tribunal that he had not cheated, I consider he should be treated as the winner in substance as well as on the procedural issue and should be awarded his costs of the judicial review which led to that result being achieved."

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15 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Indefinite leave to remain can be revoked, but not cancelled: https://www.bailii.org/ew/cases/EWHC/Admin/2021/242.html

Briefly, the Home Office has no power to cancel indefinite leave to remain (ILR) under Article 13 of the Immigration (Leave to Enter & Remain) Order 2000.

The judgment brings into sharp focus how complex primary and secondary immigration legislation has become. The Law Commission has tried to simplify the Immigration Rules, but there is a case for attempting the same with the underlying legislation from which the Rules actually derive.

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16 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Can an illiterate spouse join a British partner in the UK ?

The answer is probably, "No".

The Supreme Court dismissed the challenge brought against the introduction of pre-entry English language testing for spouses seeking to enter the UK as the family members of British citizens and those present and settled in the UK. The formal title of the case is R (on the applications of Ali and Bibi) v Secretary of State for the Home Department [2015] UKSC 68 but is will be known generally as just Ali and Bibi: https://www.supremecourt.uk/cases/uksc-2013-0270.html

 

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18 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> EU citizens with the EU pre-settled status can sponsor family members under Appendix FM

Since 31 December 2020, the list of people who can sponsor a family member under Appendix FM to the Immigration Rules has included those who are “in the UK with limited leave under Appendix EU, in accordance with paragraph GEN 1.3(d)”.

As the name suggests, GEN 1.3(d) is found in the “General” section of Appendix FM. It says:

    "References to a person being “in the UK with limited leave under Appendix EU” mean an EEA national in the UK who holds valid limited leave to enter or remain granted under paragraph EU3 of Appendix EU to these Rules on the basis of meeting condition 1 in paragraph EU14 of that Appendix."

Condition 1 of paragraph EU14 of Appendix EU is what people have to satisfy to be granted pre-settled status under the EU Settlement Scheme. The upshot is that people with pre-settled status can now use Appendix FM to sponsor family members. This applies to all family visa categories covered by Appendix FM, even “parent of a child” and adult dependent relatives applications, as pre-settled status is now a qualifying status for the child’s other parent where the child does not live with the applicant.

There are also sponsorship provisions for Turkish workers and businesspeople granted limited leave under Appendix ECAA Extension of Stay, but only for partner visas.

>>> Justice Secretary hails attack on migrants’ Article 3 and human trafficking rights: https://www.dailymail.co.uk/news/article-9260365/Deportation-lawyers-taking-ride-Justice-Secretary-warns.html

The government wants to restrict the ability of migrants to resist removal from the UK by invoking their right not to suffer inhuman or degrading treatment, the Justice Secretary has said. In an interview with the Daily Mail, Robert Buckland “confirmed plans to restrict the use of Article 3 of the European Convention on Human Rights” in immigration and asylum cases.

 

 

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22 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>> Continuous Residence Guidance: https://www.gov.uk/government/public...uous-residence

Immigration staff guidance on assessing and calculating the continuous residence requirements under Appendix Continuous Residence.

>>> Visa decision waiting times: applications inside the UK: https://www.gov.uk/guidance/visa-dec...-inside-the-uk

>>> Grace period for overstayers cannot be relied on twice: https://www.bailii.org/ew/cases/EWCA/Civ/2021/184.html

The grace period for overstayers in paragraph 39E of the Immigration Rules cannot be relied on twice. This, in short, is the conclusion of the Court of Appeal in Kalsi & Ors v Secretary of State for the Home Department [2021] EWCA Civ 184.

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23 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>>  Upper Tribunal guidance on credible documentary evidence: https://www.bailii.org/uk/cases/UKUT/IAC/2021/33.html

The Upper Tribunal in QC (verification of documents; Mibanga duty) China [2021] UKUT 33 (IAC) has given useful guidance on how to approach documentary evidence submitted by asylum appellants.

The tribunal has also clarified the circumstances in which Home Office must make enquiries to verify an appellant’s documentary evidence before rejecting it as false (a ‘verification obligation’). In cases where the verification obligation arises, but the Home Office doesn’t do anything to verify the document’s authenticity, any complaints about whether the document is genuine will be ignored by the tribunal.

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24 February 2021 – 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)7791145923 (WhatsApp/Viber)

>>>  Supreme Court to hear appeal on EU citizens’ access to benefits: https://www.bailii.org/ew/cases/EWCA/Civ/2020/1741.html

An update on the Fratila case, which in December 2020 saw the Court of Appeal hand down a very significant decision improving access to benefits such as Universal Credit for EU citizens with pre-settled status. A stay on that decision (i.e. it didn’t take legal effect) was in place until 26 February 2021 while the government considered an appeal. Permission for that appeal has now been granted by the Supreme Court and the stay extended until it is resolved.

The Court of Justice of the European Union is also due to consider the same legal point, after a case was referred to it on 30 December 2020 by a tribunal in Northern Ireland. That could complicate things: the Supreme Court may, for example, want to wait for that decision before handing down its own. On the other hand, the EU case could represent a second bite at the cherry should the Supreme Court side with the government: “the CJEU’s ruling on a reference made by a UK court or tribunal (just) before the end of transition, will be binding on all UK courts”.

 

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