UK Visas and Immigration guidance on how staff process transfer of condition applications for applicants who have limited leave endorsed in a passport that is lost, stolen, damaged or due to expire and need to transfer their visa to a biometric residence permit (BRP).
Changes from last version of this guidance: Minor housekeeping changes and placing the guidance into the new format
Recent case-law:
• Chin and Another (former BOC/Malaysian national – deportation) [2017] UKUT 00015 (IAC)
The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect.
• VA (Solicitor’s non-compliance: counsel’s duties) Sri Lanka [2017] UKUT 00012 (IAC)
(i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors.
(ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.
“With immediate effect, Youth Mobility visas can now be post-dated by a maximum of 6 months from the application date (the date the fee is paid). Please let your clients know. The website has already been updated. This only applies to the Youth Mobility Scheme. All other categories can only be post-dated up to a maximum of 3 months from the application date.”
Reent case-law
Paposhvili v Belgium, App. No. 41738/10, European Court of Human Rights
In Paposhvili v Belgium, App. No. 41738/10, the European Court of Human Rights concluded that
“the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision.” (paragraph 181)
The court proceeds to ‘clarify’ (using the word in the Home Office’s sense of ‘change’) its approach. The court holds that the reference in in N. v. the United Kingdom (Application no. 26565/05; judgment of the Grand Chamber of 28 May 2008) to “other very exceptional cases” which may raise an issue under Article 3 should be understood to refer to “situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.
At issue is the negative obligation not to expose persons to a risk of ill‑treatment proscribed by Article 3, comparing their health prior to removal and subsequent to any transfer. The court reiterates that the benchmark is not the health care system in the returning State. Instead the focus is on the individual and their suffering. That the country to which the person is to be returned is a party to the Convention is not decisive of the matter (citing M.S.S. v. Belgium and Greece, Appl. no. 30696/09, judgment of of 21 January 2001 and Tarakhel v Switzerland, Appl.no. 29217/12 , judgment of 4 November 2014. The court also found that removal would violate Article 8.
The case has the potential to put an end to the long line of injustice and suffering that has resulted from the N judgment and those with clients with terminal or chronic illnesses should consider making fresh representations and amending pleadings in the light of it.
Supreme Court on 3C leave and invalid applications
In R (Mirza, Iqbal & Ehsan) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016), the UK Supreme Court has ruled that leave is not extended under section 3C of the Immigration Act 1971 where it later turns out that the application made for further leave to enter or remain was invalid. This means that a person whose application to extend their leave turns out to be invalid after their leave has expired does not benefit from 3C leave, including during the period before the mistake is discovered.
The Supreme Court based its findings on the application of ordinary principles of statutory interpretation and considered that the drafters of the relevant legislation could be assumed to have taken its practical implications into account. However, the Court was critical of the Home Office for not having addressed the difficulties caused by the lack of flexibility.
- Changes to process for UK settlement visa applicants in Australia
UK Visas & Immigration is changing the way UK settlement visa applicants in Australia submit their supporting documents. From 30 January, 2017, all supporting documents should be sent to the UK address below by the sponsor or applicant: PO Box 5852, Sheffield, S11 0FX, United Kingdom
Applicants can also choose a new service in which their documents will be scanned and submitted by our commercial partner, VFS Global, for an additional fee. The UK BA aims to make a decision on a settlement visa in 60 working days. If you have opted for our Settlement Priority Visa Service, your application will be put at the front of the queue and the decision expedited. Further guidance on the new process will be posted on our website https://www.gov.uk/government/publications/australia-apply-for-a-uk-visa and the VFS Global website www.vfsglobal.co.uk/Australia in the coming days.
· Request for Tier 2 unrestricted CoS allocation
From th UK BA: "Due to the high demand for this service it is not always possible to get through to the payment line and we are aware of Customers needing to make multiple attempts.
Unfortunately, at present the only way to obtain the Priority service is by phone, and you will need to persist with the helpline.
UKVI are constantly looking at way to improve the services we offer and your feedback is important to us. It has been shared with the project team who are reviewing the capacity of the service and will help inform future decisions in relation to this service.
There are 20 slots available each working day, these are allocated on a first come first served basis. The telephone line opens at 9am and the first 20 people to get through and pay the fee are allocated slots, the system does not have a queuing facility and callers will receive a message when the line is engaged.
Once all slots are allocated the telephone message will be updated to advise callers of this. We will on occasions answer the telephone after all slots are allocated, this is to help us gather information on demand to help inform any future decisions on increasing the number of slots available.".
Recent case-law:
High Court declares Detained Fast Track Appeals Procedure Rules 2005 unlawful: R (TN (Vietnam) & US (Pakistan)) v SSHD [2017] EWHC 59 (Admin), 20 January 2017
The High Court has made a declaration that the Detained Fast Track Appeals Procedure Rules in force between 2005 and 2014 were unlawful.
In R (TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) (20 January 2017), the High Court has held that the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, SI 2005/560, which were in force until October 2014, were unlawful. The later fast track appeals procedure rules, in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014/2604, in force from October 2014 were found unlawful in an earlier challenge brought by Detention Action.
The judgment then considers how decisions made on cases under the fast track procedure rules in force should be dealt with.
⦁ EU nationals need to use the official 85 page permanent residence application form. From 1 February 2017 it seems likely that it will be mandatory to use the official application forms for EEA residence document applications, either online or on paper, that are provided by the Home Office. This is a new requirement introduced by paragraph 21 of the Immigration (European Economic Area) Regulations 2016, which come into force on 1 February 2017. The relevant parts of the regulation say that an application for residence documents must be made:
"(a) online, submitted electronically using the relevant pages of www.gov.uk; or
(b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk."
a. Immigration Enforcement’s strategic objectives
b. adoption criteria for high harm and volume immigration crime
c. adoption criteria for serious and organised immigration crime
d. Immigration Enforcement’s case adoption process
e. contact points for referring cases to Immigration Enforcement
f. offences commonly encountered by immigration officers
UK Visas and Immigration guidance for staff on how to manage individuals who are, or are suspected of being, subject to a UN (United Nations) or EU (European Union) travel ban.
⦁ The UK BA intends to phase out the paper based immigration forms completely:
"The service, called Access UK, is now available to those applying for leave to remain as the partner of a person present and settled in the UK or in the UK with refugee leave or humanitarian protection, and for leave to remain on the basis of their private life. This service is available here https://visas-immigration.service.gov.uk/product/family-routes
These new digital forms are being built in line with the Government Digital Service’s principles, using an ‘agile’ approach which involves a commitment to continuously improve services based on user feedback. The forms are being launched to allow some customers to benefit from applying online. We anticipate that customers will benefit because they may find it quicker and convenient to complete a digital form. In the first instance those wishing to make a fee waiver application will not be able to use this service. It is our intention however, that future releases, will allow all those making an application on the basis of family and private life to use Access UK. It is important to note that all paper forms for Family routes, including the FLR (M) and FLR (FP) forms, will remain available in the immediate future via GOV.UK.".
New guidance resource on Immigration (European Economic Area) Regulations 2016, SI 2016/1052 (3 February 2017)
The Immigration (European Economic Area) Regulations 2016, SI 2016/1052 came into force on the 25th November 2016 and the 1st February 2017.
UK Visas and Immigration guidance for staff on how they assess whether a person has misused a European Economic Area (EEA) right of residence in the UK and how to verify an EEA right of residence.
Changes from the last version of this guidance:
Completely redesigned and reformatted in line with new processes and updated in line with changes to the Immigration (European Economic Area) Regulations 2016.
UK Visas and Immigration guidance about the processes for removing an EEA national from the UK, and revoking a document issued to an EEA national confirming a right of residence in the UK.
Changes from last version of this guidance:
Changes to reflect the Immigration (European Economic Area) Regulations 2016
completely revised by the free movement policy team and the guidance, rules and forms team.
Other minor changes
UK Visas and Immigration modernised guidance for how it excludes European Economic Area (EEA) nationals and their family members from the UK under the Immigration (European Economic Area) Regulations 2006 (as amended) (’the Regulations’).
UK Visas and Immigration modernised guidance about the difference between an exclusion decision and an exclusion order and how they deal with criminal casework cases relating to the subject of exclusion.
UK Visas and Immigration guidance for staff on how decisions should be made under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016) on the grounds of public policy and public security.
This guidance applies to all public policy and public security decisions made on or after 1 February 2017.
This guidance is based on the Immigration (European Economic Area) Regulations 2016 and the Free Movement of Persons Directive 2004/38/EC. It is UK Visas and Immigration’s modernised guidance for how it considers the free movement rights of nationals of the EEA and Swiss nationals, and who can enter and live in the UK under European Community (EC) law.
Changes from last version of this guidance
1 February 2017 – Changes made to reflect commencement of Immigration (European Economic Area) Regulations 2016
Placed into the new template
Guidance on considering status and deciding action for enforcement officers dealing with immigration enforcement matters, including curtailment, within the UK.
Changes from last version of this guidance
Marriage of convenience sections updated to refer to time limited deportations under regulation 23(6)(B) as detailed in EEA guidance: decisions taken on public policy or public security grounds’.
Proportionality and vulnerability of rough sleepers clarified; update to regulation numbers and removal of sham marriage as admin removal category (now deportation) EEA Regulation changes commencing 1 Feb.
⦁ Thinking of a Surinder Singh route ? It is worth remembering the Regulation 9(3) of the new 2016 Regulations for factors to consider the genuineness of the residence in the EEA state:
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a)whether the centre of BC’s life transferred to the EEA State;
(b)the length of F and BC’s joint residence in the EEA State;
(c)the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;
(d)the degree of F and BC’s integration in the EEA State;
(e)whether F’s first lawful residence in the EU with BC was in the EEA State.
A Memorandum of Understanding was entered into earlier this month formalising the transfer of limited (non-clinical) patient information relating to ‘immigration offenders’ between the NHS and the Home Office. The MoU itself states that it is not ‘legally binding’ but ‘simply documents the processes and procedures agreed between the participants’. The NHS is permitted to disclose information under s.261 Health and Social Care Act 2012 where the disclosure is made in connection with the investigation of a criminal offence.
⦁ The Surinder Singh route is now open to employed, self-empoyed, self-sufficient or student British citizens, taking the mentioned relavant economic activity in the other EEA state. See Regulation 9: http://www.legislation.gov.uk/uksi/2016/1052/made
The Statement of Changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. These debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or Tribunal orders the other party to pay the Home Office’s costs
The book by "Reconstructing Judicial Review" by Sarah Nason (Bangor University) uses legal theory and empirical research to explore the extent to which the nature of judicial review has changed since 2007. Here she discusses the research behind the book and sets out key features of judicial review as a tool for the advancement of justice and good governance
⦁ The Recognition of Refugees Based on Sexual Orientation and Gender Identity in the UK: An Overview of Law and Procedure by Allan Briddock: http://www.bbklr.org/4-1-6.html
The article deals with people claiming asylum in the UK on the basis of a well-founded fear of persecution due to their sexual orientation or gender identity (SOGI). Although the UK is a country that respects and actively promotes SOGI rights, the UK does not always provide adequate protection to those who come to the UK in need of refuge. For many years, people persecuted because of their SOGI were not considered a member of a particular social group and were therefore not afforded international protection pursuant to the 1951 Refugee Convention. This began to change in 1999 in the House of Lords decision of Islam and Shah and in 2010 the Supreme Court in HJ (Iran) confirmed the right to refugee status even if the person could avoid persecution by concealing their sexual orientation. However, despite the Supreme Court judgment, considerable obstacles remain.
This article discusses these obstacles—namely, the continued and often unlawful use of the discretion test; that bringing criminal charges due to an individual’s SOGI does not constitute persecution; and elements of the asylum process that frustrate legitimate claims for asylum.
R (MM(Lebanon) v SSHD
R( Abdul Majid (Pakistan)) v SSHD
R (Master AF) v SSHD
R (Shabana Javed (Pakistan)) v SSHD
R(SS (Congo) v Entry Clearance Officer
The Supreme Court unanimously (i) allows SS’s appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allows the other four appeals to a limited extent. The court holds that the Minimum Income Requirement is acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8. Lady Hale and Lord Carnwath give a joint judgment, with which all the other Justices agree.
The Supreme Court unanimously dismisses the appeals. Lord Reed gives the judgment, with which the rest of the Court agrees. The Secretary of State’s decisions on the facts were lawful. The ultimate question in article 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions do not depart from that position, and are compatible with article 8.
The form now asks applicants to specify any absences from the UK of over six months rather than every single absence ever, which is incredibly helpful to many. If that is selected, however, the response generated on the final application form states:
“Have you spent more than 6 months outside the UK in total in any one year since you arrived in the UK? - "I haven't had any absences outside the UK”.
This is not necessarily accurate and raises questions as to whether the final declaration can safely be made on the form by applicants who have been outside the UK but for less than six months per year.
The UK BA UK Visas and Immigration informs that this is a mistake and intends to correct it on the on-line form early next week
⦁ Application NTL requires a previous grant of ILR/ILE status
⦁ ILR automatically lapses is a migrant is absent from the UK in excess of 2 years. Article 13(4)(a) of the Order states as follows:
"...where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse…"
Supreme Court upholds Minimum Income Rule of £18,600 to sponsor foreign spouses
In linked judgments in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10 the Supreme Court has upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support.
⦁ Following MM judgment, Home Office pauses decision-making on applications not meeting minimum income threshold (27 February 2017)
The following message has been posted on VFS Global websites (so far have seen VFS UAE, USA and India).
'Following a Supreme Court judgment, the Home Office has paused decision-making on some applications - in particular, those failing to meet the minimum threshold for British citizens sponsoring a non-EEA partner and non-EEA children. The reason for this pause is to enable the Home Office to consider the implications of the judgment. All other applications will continue to be processed and decided as normal'.
The 2012 Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 (SI 2012/6283) made provision for payment for attendance at interview by reference to centres at which the detained fast track operated. These regulations replace that reference with one to particular centres: Colnbrook, Harmondswoth,Yarls Wood.
It is highly doubtful whether the Legal Aid Agency has had power to pay for attendance at Detained Asylum Casework interviews since the fast track was suspended.
⦁ There was only one Discretionary Leave Policy pre- the 2012 changes. For extensions, those who were previously refused asylum should normally use FLR(DL), others - FLR(HRO). For settlement, FLR(DL) or SET(O). Both require a fee, neither require KoLL.
⦁ Brexit/Article 50 cut-off date ?
The following press article should hopefully provide some clarification or reassurance for those who are puzzled by this questions, unless the UK Government advsies otherwise:
At present EU law remains applicable and will do so until the UK and EU sign a withdrawal agreement.
It is very unlikely that the cut-off date on which EU residence rights could no longer be claimed in the UK would pre-date the agreement
⦁ Home Office Premium rate Phone Number 0141 555 6027 – check your phone bill !
Colleagues have recently identified a massive rise in their phone bills. The problem traced this to the above phone number which is a UK Visas and Immigration number dealing with sponsor matters. The problem arises because when you dial and the number is engaged, which it oh so frequently is, instead of an engaged tone you get a message saying it is engaged and you get charged at premium rates to hear that message. Given that firms are frequently on permanent redial for hours and hours to the number, attempting to get through, the resultant bills at 18p a pop, however quickly you put the phone down, are astronomical. The problem appears to have come about as it gets harder and harder to get through to the number. You are strongly advised to check your phone bills to see whether you are affected.
⦁ UK Visas and Immigration Guidance: Criminality guidance in article 8 ECHR cases (27 February 2017)
Version 6 of 22 February 2017, stated to contain additional sections to reflect the Supreme Court judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] and the European Court of Justice judgement in Ruiz Zambrano (European citizenship) [2011] ECJ - 34/09: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases
⦁ The UK BA recently approved an EEA(PR) application where client had 2 short gaps in his working history over the 5 years. The first gap is about 6 weeks after being in qualifying employment for about 18 months and the other is 2 months about a year later. On both occasions he had a job start arranged and that is why he did not register for JSA or apply for other jobs. The rest of the 5 years was continued employment
⦁ It may be possible to submit an out of time application under the EEA law because:
Article 25 of Directive 2004/38EC states:
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
EUN2.20 What are the visa endorsements for EEA family permits?
After entry to the UK the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder’s passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder’s right of residence in the UK – it is not a compulsory requirement.
That means that the expiry of a non-compulsory document should have no baring on the issue of an migrant's expired EEA Residence Card
⦁ What is the date of the in-country (UK) application ?
"203. For applications made in the UK, the date of application is taken to be the date of posting or, where the application form is sent by courier, the date on which it is delivered to us, for online applications this is taken to be the date of submission, or where the application form is submitted in person, the day the application form is accepted by our premium service centre (PSC).".
Recent case-law
⦁ Case note from Jed Pennington on N v SSHD CO/3882/2016, settled bail judicial review (1 March 2017)
Summary:
N applied for bail accommodation under s.4(1)(c) of the Immigration Act 1999 to facilitate his release from immigration detention. Due to delay in sourcing this, he offered the address of a friend with whom he could stay short term so as not to delay his release. He was released with electronic tagging and a residence condition at this address. He was told that his application for bail accommodation had been ‘voided’ by supplying his friend’s address, and he had been released on a Restriction Order (RO) rather than bail, so there was no power to supply bail accommodation. He was told to make an application for support under s.4(2) of the 1999 Act. However, this would be refused because he was not prepared to make a voluntary departure.
N contended that the SSHD should re-impose the conditions as bail rather than the RO so as to allow bail accommodation to be provided under s.4(1)(c) to enable him to comply with electronic monitoring conditions. He judicially reviewed the SSHD’s failure to do so, arguing that it was irrational to impose conditions without offering the means to comply. The Administrative Court ordered the SSHD to provide s.4 support on an interim basis despite N remaining on the RO. The SSHD then issued a new RO with electronic tagging at the address provided to comply with the Court’s order, yet applied to the Court to evict N. Following further submissions, the SSHD did replace the RO with a grant of bail, and ultimately conceded the JR following the grant of permission with a consent order providing for support to continue. The case demonstrates that the SSHD can move someone to bail who has been conditionally released under another statutory power if release on bail is necessary to provide him with bail accommodation to enable compliance with the conditions of his release.
⦁ UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 (3 March 2017)
Of particular interest in this case is that the Court of Appeal finds ‘the clearest obligation’ on the Secretary of State to serve her past policy documents (in this case a past country policy on Sri Lanka) and ensure that they are before the Tribunal. The Court cites AA (Afghanistan) v SSHD (2007) EWCA Civ 12 :
"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche (1997) Imm AR 610
28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator's attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives." (Keene LJ) and Mandalia v SSHD (2015 1 WLR 4546 (2015) UKSC 59):
"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19 per Lord Wilson) Lord Justice Irwin stated in UB (Sir Lanka)
“21. I deprecate any suggestion that this obligation of service is displaced or diminished by the availability of the material online. Mr Hare for the Secretary of State did not in fact mount this argument, although it seems likely from exchanges before the hearing that he was pressed to do so. He was right to decline such an argument. Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal.
22, The obligation is clear but must not be taken beyond the proper bounds. There is no obligation on the Secretary of State to serve policy or guidance which is not in truth relevant to the issues in hand, and complaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected. “
- those in the UK without the right to remain
- those on visitor visas
- those on visas as fiancé(e)s/proposed civil partners
The current NHS debt threshold (that is, to trigger a refusal) is set at £500.00
⦁ How one can increase his or her chances of success with the UK Visitor Visa application ?
The ECO will be asking whether an applicant has a good reason to return to their home country. The strength of the evidence provided in relation to this area of the application will be key in determining its outcome.
The Home Office provides guidance (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/549692/Visitor_Supporting_Documents_Guide_-_English_version.pdf) to applicants as to what type of documents they might submit. In order to demonstrate that applicants in full time work or study might be more likely to return after their visit (and are therefore genuine visitors), the guidance suggests that evidence of such full-time employment or full-time of study should be provided. Letters should be submitted from the relevant institutions on headed paper, and provide as much detail as possible on the nature of the applicant’s engagement (either work or study) in the home country.
The stronger the evidence of the tie to the home country, the more likely an ECO will be persuaded that the applicant will leave at the end of the visit to resume the activity.
In order to demonstrate that an applicant has the means to support him or herself during the course of the trip, the guidance suggests that financial documents are submitted, clearly showing access to the required funds, such as bank statements and proof of earnings such as a letter from an employer confirming the applicant’s employment details (e.g. start date of employment, salary, role, company contact details).
It is possible to receive financial support from a third party (who is legally in the UK), and if this is the case then the third party should submit documents to show they have sufficient resources to support the applicant in addition to themselves and any dependant family. If the third party has previously sponsored visitors who have complied with the terms of their visa then this would also be useful evidence to provide in the form of a covering letter from them, with details of the previous sponsored visits.
If the applicant has a good travel history – e.g. has previously complied with UK visa conditions, as well as immigration requirements in other developed countries (the guidance suggests ‘USA, Canada, Australia, New Zealand, Ireland, Schengen countries or Switzerland’) – then this will be something to make clear in the application. The guidance on documentary evidence suggests that previous passports (in addition to the current one) might be supplied to demonstrate this past compliance.
⦁ Tribunal on recorded video evidence and Article 8 considerations
Official headnote to Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) [2017] UKUT 16 (IAC):
(i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.
(ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.
(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.
(iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.
⦁ Non-EEA applicant's EEA Permanent Residence application and the need to travel overseas while the applicant's EEA(PR) application is being considered
The following scenario could be useful to some of the applications, who may find themselves in the above-mentioned circumstances. The client A's job required a lot of travelling while A's EEA(PR) application was with the UK BA. The request to return the A's original passpprt from the UK BA was duly lodged with the reasons stating that the client would lose the job if the client would not able to fulfill the job duties. A stress was put on that the client did not want to withdraw the outstanding EEA(PR) application. The client received the passport from the UK BA and simply travelled outside of the UK with the Certificate of Application along with the client partner’s documents to show that the client remained a family member of a qualified EEA national and the client did not have any problems re-entering the UK
⦁ Home Office ends policy of automatic settlement for refugees after five years: https://www.gov.uk/government/publications/asylum-under-immigration-rule-334-process
The Home Office has announced a new policy of reviewing whether all refugees require protection at the end of a five year initial period of leave. The policy appears to be effective immediately for all refugee settlement applications, including for refugees already resident in the UK and who were expecting to qualify automatically for settlement.
⦁ New Criminality Checks requirement for certain types of Tier 2 applications
- Tier 2 (General) entry clearance applicants coming to work in the education, health and social care sectors
- Partners of the main applicants as above
- Partners applying overseas to join an existing Tier 2 (General) migrant working in one of these sectors.
Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuously or in total) in the last 10 years prior to their application, while aged 18 or over
These draft Regulations impose an obligation on persons who sponsor skilled migrants from certain overseas territories to pay a charge in respect of each skilled migrant whom they sponsor - the immigration skills charge. In the light of data showing that, on average, employers in the UK under-invest in training compared with other countries, the Government have said that they want to incentivise employers to invest in training the resident workforce, through the introduction of the charge, thus reducing reliance on migrant workers.
1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.
3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR.
The Home Office can impose entry bans to individuals who have previously breached immigration law or used deception in their applications for leave. Bans can last 1 year, 2 years, 5 years or 10 years.
When does the re-entry ban period start ?
The ban period will start on the date an individual left UK or, if there in the case of a 10 year ban following the use of deception in an application, from the date of the refusal of that application.
When do re-entry bans do not apply ?
Re-entry bans do not apply to applications made under:
- Appendix FM (Immigration Rule A320)
- Appendix Armed Forces (Immigration Rule B320)
- EEA Regulations, namely applications for a European Family Permit
Under rule 320(7B), those who breached immigration law while they were minors will also not be subject to re-entry bans.
Also, there are some exemptions for other groups of individuals, where the entry bans do not apply, too. In particular, re-entry bans do not apply to those who:
- Were not aware that the documents they submitted or the representations made with previous applications were false.
- Those who have been issued with a visa despite a re-entry ban being in place.
- Those who were in the UK without permission after 17 March 2008 but who left before 1 October 2008
- Victims of trafficking
- Where a student was refused leave after 1 September 2007 solely on the basis that the made an out-of-time application.
One should bear in mind, however, that the individuals above (with the exception of those applying under the EEA Regulations), might still be caught by Immigration Rule 320(11), which gives the Secretary of State the power to refuse an applicant who has “previously contrived in a significant way to frustrate the intentions of the Rules” (i.e., as per Rule 320 (7B), an individual overstayed, breach the condition of their leave, was an illegal entrant or used deception in an application for leave, when “there are other aggravating circumstances”, such as absconding, making frivolous applications, not complying with a re-documentation process etc.
This is a discretionary ground for refusal, which means that the Secretary of State may decide whether or not to refuse an application on this ground
Вот, собственно говоря, детали (особо важное - выделено):
A new Statement of Changes to the Immigration Rules (HC 1078) was published on the 16th March 2017. The headlines are below with further details in the resource which will probably be updated as the change was generally a "massive" one (269 pages).
Headlines
· Change to Part 1 providing that an applicant can only have one outstanding application for leave to remain at a time with any subsequent application lodged while another is pending treated as a variation application
· The period of overstaying permitted before a re-entry ban is imposed is reduced from 90 days to 30 days, with certain periods disregarded
· There is a change to the language of one of the provisions where leave must be refused for those subject to the restricted leave policy
· Tier 1: in Tier 1 (Entrepreneur), there are technical changes to drafting and certain evidential requirements, including an amended definition of ‘invested funds’. Changes to Tier 1 (Graduate Entrepreneur) allow remaining allocations of places to be allocated to endorsing bodies throughout the year rather than on the fixed date of 30 September. Tier 1 (Exceptional Talent) contains changes requested by Arts Council England and Tech City UK. In Tier 1 (General), the time for applicants to respond to further information requests is reduced from 28 working days to 28 calendar days
· The second phase of changes following the MAC review is introduced to Tier 2 (General) and Tier 2 (ICT) including changes to salary thresholds and the closure of the Short Term Staff category of the ICT route. In a further change to both categories related to the Immigration Skills Charge, Certificates of Sponsorship will be considered invalid if any charge that applies is not paid in full
· Other changes to Tier 2 (General) include a new requirement for those intending to work in education, health and social care sectors and their adult dependents to provide a criminal record certificate
· There are a number of smaller changes in Tier 4, Tier 5 and on some matters relevant to all Points-Based System routes
· The problematic definition of ‘continuous’ for the purpose of residence requirements introduced in the last Statement of Changes is deleted for family members of Points-Based System migrants
· Small changes to Appendix FM and FM-SE, including on requirements for recognition of marriage, on certain evidential requirements, and to make provision that limited leave to remain granted to a child in line with their parent will be subject to the same condition on recourse to public funds, and to make changes to evidential requirements
· Visitor rules allow for applications for visit visas to be made at any post in the work that is designated to accept them. The list of Permit free Festivals is updated
⦁ The Sheffield Visa Section will also process PBS and EEA applications submitted in:
· Pakistan · Tunisia · Morocco · Russia · India (non Priority only) · Sri Lanka (non Priority only) · Minsk · Paris
⦁ Are citizens of the Republic of Ireland deemed to be Settled in the UK ?
Immigration Rule 15 states that:
15.The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:
(i) those who merely passed through the Republic of Ireland;
(ii)persons requiring visas;
(iii)persons who entered the Republic of Ireland unlawfully;
(iv)persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;
(v)persons who entered the Republic from the United Kingdom and Islands after entering there unlawfully or overstaying their leave.
Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens. Ireland is not considered to be a “foreign country” for the purpose of UK laws, and Irish citizens are not considered to be “aliens”. Irish citizens are treated as if they are settled in the UK from the date they take up “ordinary residence” here. s50(1) of the BNA 1981 describes an “alien” as a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. “Foreign country” is also defined as a country other than the United Kingdom, a British overseas territory, a country mentioned in Schedule 3 and the Republic of Ireland;
This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, they have more advantageous rights than other EU/EEA nationals in some areas.
So, it may be assumed that citizens of Ireland can apply for nationality because they have a qualifying immigration status for the purposes of Schedule 1, 2A(d) of the BNA 1981 meaning they just have to meet the other requirements of residence and good character etc.
⦁ EEA citizens need to have formally obtained Permanent Residence document in the UK on the basis of the British Nationality (General) (Amendment No. 3) Regulations 2015 in order to be able to Naturalize in the UK
⦁ The use of the Home Secretary’s power to strip a British citizen of their citizenship is on the rise.
It has been the subject of debate where its use has rendered a person stateless following a series cases in the higher courts. The case of K2 v the United Kingdom (Application No 42387/13) K2 is another said example.
In K2, the attempt focused on the applicant’s right to a private and family life under article 8 of the European Convention on Human Rights. The complaint was declared inadmissible, in a judgment in which the applicant’s private life and family feature very little indeed
⦁ Student accused of ETS fraud found to have been unlawfully detained
In R (on the application of Iqbal) v Secretary of State for the Home Department [2017] EWHC 79 (Admin) the Secretary of State for the Home Department (SSHD) was found to have unlawfully detained a claimant whom they had alleged had fraudulently obtained an Educational Test Service (ETS) certificate to show that he spoke English to the level required for his immigration application.
The Home Office decided to remove him under s.10 Immigration and Asylum Act 1999
⦁ EEA Family Permit applications - can a certified passport copy be submitted ?
The 2016 regulations have been amended to make it look like a valid passport or ID card for the EEA National is required for a family permit application as the heading of regulation 21 is Procedure for applications for documentation under this Part and regulation 12. At this time not all the UK BA caseworkers are apparently familier with this change, hence it is still advisable to lodge the original EU ID document.
What about EEA Family Permit applications re: submission of the EU sponsor's certified ID ?
The home office guidance called the "Processes and procedures for EEA documentation applications" – version 5.0 – 14 February 2017 at page 12 specifically states that a photocopy (NB ! certified !) of the passport or ID card is acceptable for the purposes of an EEA Family Permit application.
For a document to be a false document under the Immigration Rules there must have been an element of dishonesty in its creation and if this is not immediately obvious in a case of an inaccurate document then that element must be engaged with in any refusal.
Even in the absence of a “not in accordance with the law” ground of appeal, the Tribunal ought to take the Secretary of State’s guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.
What it is all about ?
The Home Office had not in this case applied its guidance on when it is reasonable to require a British Citizen child and her family members to leave the UK, an issue that only became apparent when the Presenting Officer drew the guidance to the attention of the Upper Tribunal at the hearing. Had the guidance been considered, the conclusion would have been that the appellants should have been granted a period of leave in order to enable the British citizen child to remain in the UK with them. The Upper Tribunal considered how the guidance affected the decision of the First-tier Tribunal or the Upper Tribunal.
It stated (§10):
It is clear that the appellants do not have available to them a ground of appeal on the basis that the decision was not in accordance with the law such as before the amendments made to the 2002 Act by the 2014 Act they might have had. Nevertheless it appears to us that the terms of the guidance are an important source of the Secretary of State’s view of what is to be regarded as reasonable in the circumstances, and it is important in our judgement for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control.
The Tribunal concluded (§12):
But where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, we think, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it.
The Upper Tribunal allowed the family’s appeal, setting aside the decision of the First-tier Tribunal.
1. Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a “human rights claim” albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
2. Paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.
⦁ Failure to register under WRS v Naturalization for A8 EEA Nationals
The A8 EU national may have their Naturalization applications refused is these A8 EU nationals failed to register with the WRS within the 10 years from the date of the naturalization application. There is a high chance of refusal where the non-WRS registration information has been disclosed to the Home Office, for example in an earlier Permanent Residence application
⦁ Evidence in the retained rights of residence cases
Where the non-EEA spouse has difficulty obtaining evidence, the Government MAY assist the applicant. After all, if the EEA national is working then there will be records of National Insurance payments and income tax being paid. The UK BA has the power to assist, under s.40 of the UK Borders Act 2007. It generally lacks the inclination, sadly.
This issue arose in the important case of Amos v Secretary of State for the Home Department [2011] EWCA Civ 552. The Court of Appeal left open the question of whether or how far UKBA would assist a claimant if requested to do so and how the tribunal might react if UKBA declined to assist.
⦁ 240 jobs available in Liverpool Visas and Immigration department for processing EU casework.
The Home Office has updated this guidance to remove the page on proxy marriages discussing the cases of Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC). This follows the recent Court of Appeal judgment in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017)
Guidance: https://www.gov.uk/government/publications/european-economic-area-eea-case-law-and-appeals
⦁ High Court declares unlawful the abolition of right of appeal for Turkish nationals
In the case of R (on the application of Akturk) v Secretary of State for the Home Department [2017] EWHC 297 (Admin) a Turkish wannabe window cleaner entered the UK as a visitor and then applied for leave to remain to establish his window cleaning business under the 1973 Immigration Rules, known as HC510. These rules continue to apply to self employed Turks because of the “Ankara Agreement”, the accession treaty between the EU and Turkey to which the UK signed up on joining the EU in 1973. This treaty included a “standstill clause” which prevents the imposition of additional immigration rules over and above those in place at the time of the treaty, which for the UK means the rules for self employed Turks are those that applied in 1973.
Mr Akturk made an application for judicial review. His argument was that the decision was unlawful and unfair and that he should also have been allowed a full right of appeal, as rights of appeal were available back in 1973.
The application was refused because the applicant had no bank account, but the applicant was unable to open a bank account because the Immigration Act 2014 prevented him from doing so. Various points were taken against the applicant without his having an opportunity to answer them. The decision maker assumed the applicant could not speak very good English and that this would hamper the development of his window cleaning business.
⦁ Do Schengen states have to issue humanitarian visas to refugees?
This question was asked of the Court of Justice by a Belgian court regarding an application for humanitarian visas made by a Syrian family at the Belgian consulate in Beirut: does the Schengen Visa Code in conjunction with the EU Charter on Fundamental Rights require Member States to issue humanitarian visas to refugees? (C-638/16 PPU X & X, 7 March 2017).
The Advocate General surprised everyone by finding that there was such an obligation on 7 February. A number of Member States were very anxious. But a month later the Court held that there is no EU obligation for states to issue humanitarian visas and this is a matter for national law.
The legal reasoning of the Court is:
1. There is EU competence to adopt measures on humanitarian visas;
2. The EU has not (yet) done so;
3. The Schengen Visa Code only regulates short stay visas;
4. The objective of a humanitarian visa is a long stay (well longer than 90 days);
5. The Dublin III (soon to be IV) system of allocating responsibility for asylum seekers to Member States would be undermined if refugees were entitled to humanitarian visas as that would allow them to choose which Member State they wanted to go to (a rather poor argument in my opinion).
So, no EU obligation but maybe the European Court of Human Rights will revisit the issue in due course.
Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.
In short, Ireland is not considered to be a “foreign country” for the purpose of UK laws, and Irish citizens are not considered to be “aliens”. Furthermore, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up “ordinary residence” here.
This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, they have more advantageous rights than other EU/EEA nationals in some areas.
(i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure.
(ii) A failure to discharge this onus may well defeat any argument that there was a proactive duty of enquiry on the Secretary of State in a given context.
(iii) In deprivation of citizenship cases, section 55 issues arise at two stages: at the deprivation of citizen stage and at the later stage of proposed removal or deportation.
(iv) As the subject of national citizenship lies exclusively within the competence of Member States, EU law has no role to play in deprivation cases: G1 v SSHD [2012] EWCA Civ 867 applied.
(v) The Secretary of State’s deprivation of citizenship policy confers a wide margin of appreciation on the decision maker.
(vi) Part 5A of the Nationality, Immigration and Asylum Act 2002 does not apply to deprivation of citizenship decisions as such decisions are not made under the Immigration Acts.
(vii) There would be a considerable saving of human and financial resources with consequential reduced delay if deprivation of citizenship and deportation or removal decisions were to be made jointly.
04 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, 07791145923 & 0330 001 0342, the UK Professional Immigration Assistance Epicentre
⦁ According the the UK BA Sheffield, who is now dealing with a number of Entry Clearance types of applications, such as Settlement Entry Clearance applications (spouse, fiance(e), unmarried partners) as well as EEA Family Permits and PBS applications (Tier 1,2,4,5) etc, the application target consideration times as as follows:
- Visit Visa applications: 15 working days
- Settlement Visa applications (including the EEA applications): 12 weeks
The UK BA says that in case when it is not possible to complete the consideration of the applicant's application within the mentioned time frame, a member of the UK BA team will contact the applicant to explain why the UK BA needs more time
⦁ Home Office say it is “longstanding practice” not to remove EU citizens lacking comprehensive sickness insurance:
In a written Parliamentary answer yesterday the Government stated self sufficient or studying EU citizens without comprehensive sickness insurance (CSI) are “not lawfully resident” in the UK and “may be liable for removal” but that it is “longstanding Home Office practice” not to seek removal because “it is relatively straight forward to rectify.” The implication seems to be that those without CSI are expected to “rectify” their situation.
In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former.
Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014.
⦁ Extract from the recent case-law where even the immigration judges condemm the UK BA policy
Is a 3-year old UK born child, also PBS dependant overstayer, who has failed under para 319H(m), still able to succeed under paras A277, A280(b), 304-309?
Was the refusal contrary to Section 55 and unreasonable, similar to the case of Forrester, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2307 (Admin) (05 September 2008) wrote:
"16. This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question…."
Immigration and Nationality (fees) Regulations 2017: changes to come into effect on 6 April 2017 (4 April 2017)
New fees will take effect from 6 April 2017. These are set out in the Immigration and Nationality (Fees) Regulations 2017, SI 2017/515. There are some very substantial increases, in particular in the case of ILR which will now cost over 2000.
05 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ An EEA national, who obtains a Permanent Residence status in the UK and, provided that EEA national does not become a British citizen, can still sponsor other family members so they can come to live with that EEA national in the UK under the EEA law. That means that that EEA national with the Permanent residence status is no longer required to show that he/she is a qualified person any more.
Обратите внимание, с 06 апреля 2017 года изменились многие иммиграционные формы
06 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Following the UK BA application fees rise on the 6th April 2017 (some very significant), the UK BA also introduced new application forms for quite a number of the immigration categories, including the new forms for both the UK (FLR, SET etc) and EEA (EEAFM etc) immigration laws applications 6th April 2017
Комментарии
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• Updated UK Visas and Immigration Guidance: Transfer of conditions, Version 12.0 (16 January 2016): https://www.gov.uk/government/publications/travel-documents-transfer-of-conditions
UK Visas and Immigration guidance on how staff process transfer of condition applications for applicants who have limited leave endorsed in a passport that is lost, stolen, damaged or due to expire and need to transfer their visa to a biometric residence permit (BRP).
Changes from last version of this guidance: Minor housekeeping changes and placing the guidance into the new format
Recent case-law:
• Chin and Another (former BOC/Malaysian national – deportation) [2017] UKUT 00015 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-15
The deportation of a former Malaysian national and former BOC is liable to be deemed unlawful where relevant Government Policies relating to inter-state arrangements with Malaysia have not been taken into account or given effect.
• VA (Solicitor’s non-compliance: counsel’s duties) Sri Lanka [2017] UKUT 00012 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-12
(i) Counsel’s duty is owed to the client. It does not extend to defending non-compliant instructing solicitors.
(ii) It is for non-compliant instructing solicitors to defend themselves by proactively arranging their attendance before the tribunal in appropriate circumstances.
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Tier 5 Youth Mobility (Working Holiday Maker) Visa Processing Change (19 January 2017)
“With immediate effect, Youth Mobility visas can now be post-dated by a maximum of 6 months from the application date (the date the fee is paid). Please let your clients know. The website has already been updated. This only applies to the Youth Mobility Scheme. All other categories can only be post-dated up to a maximum of 3 months from the application date.”
Reent case-law
Paposhvili v Belgium, App. No. 41738/10, European Court of Human Rights
In Paposhvili v Belgium, App. No. 41738/10, the European Court of Human Rights concluded that
“the application of Article 3 of the Convention only in cases where the person facing expulsion is close to death, which has been its practice since the judgment in N. v. the United Kingdom, has deprived aliens who are seriously ill, but whose condition is less critical, of the benefit of that provision.” (paragraph 181)
The court proceeds to ‘clarify’ (using the word in the Home Office’s sense of ‘change’) its approach. The court holds that the reference in in N. v. the United Kingdom (Application no. 26565/05; judgment of the Grand Chamber of 28 May 2008) to “other very exceptional cases” which may raise an issue under Article 3 should be understood to refer to “situations involving the removal of a seriously ill person in which substantial grounds have been shown for believing that he or she, although not at imminent risk of dying, would face a real risk, on account of the absence of appropriate treatment in the receiving country or the lack of access to such treatment, of being exposed to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy”.
At issue is the negative obligation not to expose persons to a risk of ill‑treatment proscribed by Article 3, comparing their health prior to removal and subsequent to any transfer. The court reiterates that the benchmark is not the health care system in the returning State. Instead the focus is on the individual and their suffering. That the country to which the person is to be returned is a party to the Convention is not decisive of the matter (citing M.S.S. v. Belgium and Greece, Appl. no. 30696/09, judgment of of 21 January 2001 and Tarakhel v Switzerland, Appl.no. 29217/12 , judgment of 4 November 2014. The court also found that removal would violate Article 8.
The case has the potential to put an end to the long line of injustice and suffering that has resulted from the N judgment and those with clients with terminal or chronic illnesses should consider making fresh representations and amending pleadings in the light of it.
Supreme Court on 3C leave and invalid applications
In R (Mirza, Iqbal & Ehsan) v Secretary of State for the Home Department [2016] UKSC 63 (14 December 2016), the UK Supreme Court has ruled that leave is not extended under section 3C of the Immigration Act 1971 where it later turns out that the application made for further leave to enter or remain was invalid. This means that a person whose application to extend their leave turns out to be invalid after their leave has expired does not benefit from 3C leave, including during the period before the mistake is discovered.
The Supreme Court based its findings on the application of ordinary principles of statutory interpretation and considered that the drafters of the relevant legislation could be assumed to have taken its practical implications into account. However, the Court was critical of the Home Office for not having addressed the difficulties caused by the lack of flexibility.
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· Brexit Update: The UK Prime Minister, Theresa May must seek the UK parliament's approval to trigger the Article 50 following the UK Supreme Court's Judgement today, on the 24th January 2017: https://www.theguardian.com/politics/blog/live/2017/jan/24/supreme-court-article-50-judgement-announces-its-article-50-judgment-politics-live
- Lords Library Note on 'Leaving the European Union: The Single Market, the Rights of EU Citizens in the UK and the UK’s Future Economic Requirements', LLN 2017/006, 20 January 2017 http://researchbriefings.parliament.uk/ResearchBriefing/Summary/LLN-2017-0006
- Changes to process for UK settlement visa applicants in Australia
UK Visas & Immigration is changing the way UK settlement visa applicants in Australia submit their supporting documents. From 30 January, 2017, all supporting documents should be sent to the UK address below by the sponsor or applicant: PO Box 5852, Sheffield, S11 0FX, United Kingdom
Applicants can also choose a new service in which their documents will be scanned and submitted by our commercial partner, VFS Global, for an additional fee. The UK BA aims to make a decision on a settlement visa in 60 working days. If you have opted for our Settlement Priority Visa Service, your application will be put at the front of the queue and the decision expedited. Further guidance on the new process will be posted on our website https://www.gov.uk/government/publications/australia-apply-for-a-uk-visa and the VFS Global website www.vfsglobal.co.uk/Australia in the coming days.
· Request for Tier 2 unrestricted CoS allocation
From th UK BA: "Due to the high demand for this service it is not always possible to get through to the payment line and we are aware of Customers needing to make multiple attempts.
Unfortunately, at present the only way to obtain the Priority service is by phone, and you will need to persist with the helpline.
UKVI are constantly looking at way to improve the services we offer and your feedback is important to us. It has been shared with the project team who are reviewing the capacity of the service and will help inform future decisions in relation to this service.
There are 20 slots available each working day, these are allocated on a first come first served basis. The telephone line opens at 9am and the first 20 people to get through and pay the fee are allocated slots, the system does not have a queuing facility and callers will receive a message when the line is engaged.
Once all slots are allocated the telephone message will be updated to advise callers of this. We will on occasions answer the telephone after all slots are allocated, this is to help us gather information on demand to help inform any future decisions on increasing the number of slots available.".
Recent case-law:
High Court declares Detained Fast Track Appeals Procedure Rules 2005 unlawful: R (TN (Vietnam) & US (Pakistan)) v SSHD [2017] EWHC 59 (Admin), 20 January 2017
BAILII case link: http://www.bailii.org/ew/cases/EWHC/Admin/2017/59.html
The High Court has made a declaration that the Detained Fast Track Appeals Procedure Rules in force between 2005 and 2014 were unlawful.
In R (TN (Vietnam) & US (Pakistan)) v Secretary of State for the Home Department & Anor [2017] EWHC 59 (Admin) (20 January 2017), the High Court has held that the Asylum and Immigration Tribunal (Fast Track Procedure) Rules 2005, SI 2005/560, which were in force until October 2014, were unlawful. The later fast track appeals procedure rules, in the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 SI 2014/2604, in force from October 2014 were found unlawful in an earlier challenge brought by Detention Action.
The judgment then considers how decisions made on cases under the fast track procedure rules in force should be dealt with.
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⦁ The MAC has published its report ‘Partial review of the Shortage Occupation List: Review of teachers’: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-teacher-shortages-in-the-uk
⦁ EU nationals need to use the official 85 page permanent residence application form. From 1 February 2017 it seems likely that it will be mandatory to use the official application forms for EEA residence document applications, either online or on paper, that are provided by the Home Office. This is a new requirement introduced by paragraph 21 of the Immigration (European Economic Area) Regulations 2016, which come into force on 1 February 2017. The relevant parts of the regulation say that an application for residence documents must be made:
"(a) online, submitted electronically using the relevant pages of www.gov.uk; or
(b) by post or in person, using the relevant application form specified by the Secretary of State on www.gov.uk."
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⦁ Updated guidance on international travel bans, Immigration Enforcement criminal investigation adoption criteria: https://www.gov.uk/government/publications/immigration-enforcement-criminal-investigation-criteria
This guidance includes information on:
a. Immigration Enforcement’s strategic objectives
b. adoption criteria for high harm and volume immigration crime
c. adoption criteria for serious and organised immigration crime
d. Immigration Enforcement’s case adoption process
e. contact points for referring cases to Immigration Enforcement
f. offences commonly encountered by immigration officers
⦁ International travel bans: https://www.gov.uk/government/publications/international-travel-bans
UK Visas and Immigration guidance for staff on how to manage individuals who are, or are suspected of being, subject to a UN (United Nations) or EU (European Union) travel ban.
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⦁ Correcting the incorrect (visa/BRP) endorsement guidance: https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19
⦁ The UK BA intends to phase out the paper based immigration forms completely:
"The service, called Access UK, is now available to those applying for leave to remain as the partner of a person present and settled in the UK or in the UK with refugee leave or humanitarian protection, and for leave to remain on the basis of their private life. This service is available here https://visas-immigration.service.gov.uk/product/family-routes
These new digital forms are being built in line with the Government Digital Service’s principles, using an ‘agile’ approach which involves a commitment to continuously improve services based on user feedback. The forms are being launched to allow some customers to benefit from applying online. We anticipate that customers will benefit because they may find it quicker and convenient to complete a digital form. In the first instance those wishing to make a fee waiver application will not be able to use this service. It is our intention however, that future releases, will allow all those making an application on the basis of family and private life to use Access UK. It is important to note that all paper forms for Family routes, including the FLR (M) and FLR (FP) forms, will remain available in the immediate future via GOV.UK.".
New guidance resource on Immigration (European Economic Area) Regulations 2016, SI 2016/1052 (3 February 2017)
The Immigration (European Economic Area) Regulations 2016, SI 2016/1052 came into force on the 25th November 2016 and the 1st February 2017.
⦁ European Economic Area nationals: misuse of rights and verification of EEA rights of residence Version 2.0: https://www.gov.uk/government/publications/misuse-of-rights-and-verification-of-eea-rights-of-residence
UK Visas and Immigration guidance for staff on how they assess whether a person has misused a European Economic Area (EEA) right of residence in the UK and how to verify an EEA right of residence.
Changes from the last version of this guidance:
Completely redesigned and reformatted in line with new processes and updated in line with changes to the Immigration (European Economic Area) Regulations 2016.
⦁ Guidance: Removals and revocations of EEA nationals Version 2.0: https://www.gov.uk/government/publications/removals-and-revocations-of-european-economic-area-eea-nationals
UK Visas and Immigration guidance about the processes for removing an EEA national from the UK, and revoking a document issued to an EEA national confirming a right of residence in the UK.
Changes from last version of this guidance:
Changes to reflect the Immigration (European Economic Area) Regulations 2016
completely revised by the free movement policy team and the guidance, rules and forms team.
Other minor changes
⦁ Guidance: EEA nationals qualified persons: https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons
This document explains how UK Visas and Immigration assesses if an EEA national is a qualified person.
Changes from last version of this guidance
01 February 2017 – Changes made to reflect commencement of Immigration (European Economic Area) Regulations 2016
placed into the new template
⦁ Exclusion of EEA nationals and their family members from the UK Version 5.0: https://www.gov.uk/government/publications/excluding-eea-nationals-and-their-families-from-the-uk
UK Visas and Immigration modernised guidance for how it excludes European Economic Area (EEA) nationals and their family members from the UK under the Immigration (European Economic Area) Regulations 2006 (as amended) (’the Regulations’).
Changes from last version of this guidance:
out of date appeals information redacted
⦁ Criminal casework, Exclusion decisions and exclusion orders Version 5.0: https://www.gov.uk/government/publications/exclusion-decisions-and-exclusion-orders
UK Visas and Immigration modernised guidance about the difference between an exclusion decision and an exclusion order and how they deal with criminal casework cases relating to the subject of exclusion.
Changes from last version of this guidance:
out of date appeals information removed
⦁ New guidance: EEA decisions on grounds of public policy and public security Version 1.0: https://www.gov.uk/government/publications/eea-decisions-taken-on-grounds-of-public-policy
UK Visas and Immigration guidance for staff on how decisions should be made under the Immigration (European Economic Area) Regulations 2016 (EEA Regulations 2016) on the grounds of public policy and public security.
This guidance applies to all public policy and public security decisions made on or after 1 February 2017.
⦁ European Economic Area (EEA) and Swiss nationals: free movement rights Version 15.0: https://www.gov.uk/government/publications/considering-immigration-status-and-deciding-enforcement-action
This guidance is based on the Immigration (European Economic Area) Regulations 2016 and the Free Movement of Persons Directive 2004/38/EC. It is UK Visas and Immigration’s modernised guidance for how it considers the free movement rights of nationals of the EEA and Swiss nationals, and who can enter and live in the UK under European Community (EC) law.
Changes from last version of this guidance
1 February 2017 – Changes made to reflect commencement of Immigration (European Economic Area) Regulations 2016
Placed into the new template
⦁ European Economic Area (EEA) administrative removal, Version 3.0:https://www.gov.uk/government/publications/considering-immigration-status-and-deciding-enforcement-action
Guidance on considering status and deciding action for enforcement officers dealing with immigration enforcement matters, including curtailment, within the UK.
Changes from last version of this guidance
Marriage of convenience sections updated to refer to time limited deportations under regulation 23(6)(B) as detailed in EEA guidance: decisions taken on public policy or public security grounds’.
Proportionality and vulnerability of rough sleepers clarified; update to regulation numbers and removal of sham marriage as admin removal category (now deportation) EEA Regulation changes commencing 1 Feb.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Detention services order 03/2015 about handling complaints in immigration centres (02 February 2017)
Detention services order 03/2015 about handling complaints in immigration centres has been updated since it’s last version from August 2015.
Updated is Detention services order 03/2015 on complaints handling, Annex B, Annex C and Annex D. In addition new guidance has been added: Annex H guidance on 'Serious allegations (against or about healthcare staff in England)'. https://www.gov.uk/government/publications/handling-complaints-in-immigration-removal-centres
⦁ Thinking of a Surinder Singh route ? It is worth remembering the Regulation 9(3) of the new 2016 Regulations for factors to consider the genuineness of the residence in the EEA state:
(3) Factors relevant to whether residence in the EEA State is or was genuine include—
(a)whether the centre of BC’s life transferred to the EEA State;
(b)the length of F and BC’s joint residence in the EEA State;
(c)the nature and quality of the F and BC’s accommodation in the EEA State, and whether it is or was BC’s principal residence;
(d)the degree of F and BC’s integration in the EEA State;
(e)whether F’s first lawful residence in the EU with BC was in the EEA State.
⦁ NHS shares patient data of suspected immigration offenders with Home Office: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/585928/MOU_v3.pdf
A Memorandum of Understanding was entered into earlier this month formalising the transfer of limited (non-clinical) patient information relating to ‘immigration offenders’ between the NHS and the Home Office. The MoU itself states that it is not ‘legally binding’ but ‘simply documents the processes and procedures agreed between the participants’. The NHS is permitted to disclose information under s.261 Health and Social Care Act 2012 where the disclosure is made in connection with the investigation of a criminal offence.
⦁ The Surinder Singh route is now open to employed, self-empoyed, self-sufficient or student British citizens, taking the mentioned relavant economic activity in the other EEA state. See Regulation 9: http://www.legislation.gov.uk/uksi/2016/1052/made
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Refusals due to the "litigation debts to the UK Border Agency": https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/512690/54729_HC_877_Web_Accessible_v.2.pdf
The Statement of Changes HC877, of 11 March 2016, gave the Home Office yet another power to refuse applications for leave to enter or remain in the UK. For all applications made on or after 6 April 2016, having a “litigation debt” to the Home Office may be a ground for refusal. These debts may arise in the course of any litigation against the Home Office (e.g. judicial reviews, claims for unlawful detention and appeals), where the court or Tribunal orders the other party to pay the Home Office’s costs
⦁ Reconstructing Judicial Review By Sarah Nason: http://www.bloomsburyprofessional.com/uk/reconstructing-judicial-review-9781509904624/
The book by "Reconstructing Judicial Review" by Sarah Nason (Bangor University) uses legal theory and empirical research to explore the extent to which the nature of judicial review has changed since 2007. Here she discusses the research behind the book and sets out key features of judicial review as a tool for the advancement of justice and good governance
⦁ The Recognition of Refugees Based on Sexual Orientation and Gender Identity in the UK: An Overview of Law and Procedure by Allan Briddock: http://www.bbklr.org/4-1-6.html
The article deals with people claiming asylum in the UK on the basis of a well-founded fear of persecution due to their sexual orientation or gender identity (SOGI). Although the UK is a country that respects and actively promotes SOGI rights, the UK does not always provide adequate protection to those who come to the UK in need of refuge. For many years, people persecuted because of their SOGI were not considered a member of a particular social group and were therefore not afforded international protection pursuant to the 1951 Refugee Convention. This began to change in 1999 in the House of Lords decision of Islam and Shah and in 2010 the Supreme Court in HJ (Iran) confirmed the right to refugee status even if the person could avoid persecution by concealing their sexual orientation. However, despite the Supreme Court judgment, considerable obstacles remain.
This article discusses these obstacles—namely, the continued and often unlawful use of the discretion test; that bringing criminal charges due to an individual’s SOGI does not constitute persecution; and elements of the asylum process that frustrate legitimate claims for asylum.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
ILR/ILE key points
⦁ Dependants cannot apply for ILR independently of main applicant, prior to the latter having ILR, unless eligible under Long residence
⦁ Child may be granted ILE if the requirements of A280(b), 297 are met
⦁ UK Visas and Immigration, Guidance on applying for UK visa in the USA (22 February 2017)
This guidance was updated on 22 February 2017 to include that the super priority service is now available for Houston, San Francisco and Boston: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa
⦁ Contact details for immigration compliance and enforcement teams, UK Visas and Immigration (22 February 2017)
Changes on 22 February 2017: Contact details for North London updated: https://www.gov.uk/government/publications/contact-details-for-immigration-compliance-and-enforcement-teams
UK Supreme Court judgments - minimum income requirement, insurmountable obstacles, article 8 ECHR, 22 February 2017
The Supreme Court has today handed down judgments in the following cases.
⦁ R (on the application of MM (Lebanon) and others) v Secretary of State for the Home Department [2017] UKSC 10, 22 February 2017: https://www.supremecourt.uk/cases/uksc-2015-0011.html
In the linked appeals before the Supreme Court:
R (MM(Lebanon) v SSHD
R( Abdul Majid (Pakistan)) v SSHD
R (Master AF) v SSHD
R (Shabana Javed (Pakistan)) v SSHD
R(SS (Congo) v Entry Clearance Officer
The Supreme Court unanimously (i) allows SS’s appeal, restoring the decision of the Upper Tribunal in her case, and (ii) allows the other four appeals to a limited extent. The court holds that the Minimum Income Requirement is acceptable in principle but that the Rules and the Instructions unlawfully fail to take proper account of the s 55 duty. The Instructions also require amendment to allow consideration of alternative sources of funding when evaluating a claim under article 8. Lady Hale and Lord Carnwath give a joint judgment, with which all the other Justices agree.
⦁ R (on the application of Agyarko), R (on the application of Ikuga) v Secretary of State for the Home Department [2017] UKSC 11, 22 February 2017: https://www.supremecourt.uk/cases/uksc-2015-0129.html
The Supreme Court unanimously dismisses the appeals. Lord Reed gives the judgment, with which the rest of the Court agrees. The Secretary of State’s decisions on the facts were lawful. The ultimate question in article 8 cases is whether a fair balance has been struck between the competing public and individual interests involved, applying a proportionality test. The Rules and Instructions do not depart from that position, and are compatible with article 8.
The form now asks applicants to specify any absences from the UK of over six months rather than every single absence ever, which is incredibly helpful to many. If that is selected, however, the response generated on the final application form states:
“Have you spent more than 6 months outside the UK in total in any one year since you arrived in the UK? - "I haven't had any absences outside the UK”.
This is not necessarily accurate and raises questions as to whether the final declaration can safely be made on the form by applicants who have been outside the UK but for less than six months per year.
The UK BA UK Visas and Immigration informs that this is a mistake and intends to correct it on the on-line form early next week
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Application NTL requires a previous grant of ILR/ILE status
⦁ ILR automatically lapses is a migrant is absent from the UK in excess of 2 years. Article 13(4)(a) of the Order states as follows:
"...where the holder has stayed outside the United Kingdom for a continuous period of more than two years, the leave (where the leave is unlimited) or any leave then remaining (where the leave is limited) shall thereupon lapse…"
⦁ Returning Residents Guidance: https://www.gov.uk/government/publications/returning-residents-set09/returning-residents-set-09
⦁ UK Visas and Immigration Guidance: Employer sponsorship: restricted certificate allocations (23 February 2017) : https://www.gov.uk/government/publications/employer-sponsorship-restricted-certificate-allocations
In linked judgments in the case of MM and others v Secretary of State for the Home Department [2017] UKSC 10 the Supreme Court has upheld in principle the Minimum Income Rule which requires an income of at least £18,600 for British citizens and others to sponsor a foreign spouse. However, the court also held that the rules and policies used by the Home Office to assess such cases would need to be amended to take proper account of the impact on children and other possible sources of income and support.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Following MM judgment, Home Office pauses decision-making on applications not meeting minimum income threshold (27 February 2017)
The following message has been posted on VFS Global websites (so far have seen VFS UAE, USA and India).
'Following a Supreme Court judgment, the Home Office has paused decision-making on some applications - in particular, those failing to meet the minimum threshold for British citizens sponsoring a non-EEA partner and non-EEA children. The reason for this pause is to enable the Home Office to consider the implications of the judgment. All other applications will continue to be processed and decided as normal'.
⦁ The Civil Legal Aid (Immigration Interviews) (Exceptions) (Amendment) Regulations 2017 (27 February 2017): ⦁ http://www.legislation.gov.uk/uksi/2017/192/contents/made
The 2012 Civil Legal Aid (Immigration Interviews) (Exceptions) Regulations 2012 (SI 2012/6283) made provision for payment for attendance at interview by reference to centres at which the detained fast track operated. These regulations replace that reference with one to particular centres: Colnbrook, Harmondswoth,Yarls Wood.
It is highly doubtful whether the Legal Aid Agency has had power to pay for attendance at Detained Asylum Casework interviews since the fast track was suspended.
⦁ There was only one Discretionary Leave Policy pre- the 2012 changes. For extensions, those who were previously refused asylum should normally use FLR(DL), others - FLR(HRO). For settlement, FLR(DL) or SET(O). Both require a fee, neither require KoLL.
⦁ Brexit/Article 50 cut-off date ?
The following press article should hopefully provide some clarification or reassurance for those who are puzzled by this questions, unless the UK Government advsies otherwise:
https://www.theguardian.com/politics/2017/feb/27/article-50-day-wont-be-cut-off-date-for-eu-migrants-no-10-suggests
At present EU law remains applicable and will do so until the UK and EU sign a withdrawal agreement.
It is very unlikely that the cut-off date on which EU residence rights could no longer be claimed in the UK would pre-date the agreement
⦁ Home Office Premium rate Phone Number 0141 555 6027 – check your phone bill !
Colleagues have recently identified a massive rise in their phone bills. The problem traced this to the above phone number which is a UK Visas and Immigration number dealing with sponsor matters. The problem arises because when you dial and the number is engaged, which it oh so frequently is, instead of an engaged tone you get a message saying it is engaged and you get charged at premium rates to hear that message. Given that firms are frequently on permanent redial for hours and hours to the number, attempting to get through, the resultant bills at 18p a pop, however quickly you put the phone down, are astronomical. The problem appears to have come about as it gets harder and harder to get through to the number. You are strongly advised to check your phone bills to see whether you are affected.
⦁ UK Visas and Immigration Guidance: Criminality guidance in article 8 ECHR cases (27 February 2017)
Version 6 of 22 February 2017, stated to contain additional sections to reflect the Supreme Court judgment in Hesham Ali (Iraq) v Secretary of State for the Home Department [2016] and the European Court of Justice judgement in Ruiz Zambrano (European citizenship) [2011] ECJ - 34/09: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ The UK BA recently approved an EEA(PR) application where client had 2 short gaps in his working history over the 5 years. The first gap is about 6 weeks after being in qualifying employment for about 18 months and the other is 2 months about a year later. On both occasions he had a job start arranged and that is why he did not register for JSA or apply for other jobs. The rest of the 5 years was continued employment
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ It may be possible to submit an out of time application under the EEA law because:
Article 25 of Directive 2004/38EC states:
1. Possession of a registration certificate as referred to in Article 8, of a document certifying permanent residence, of a certificate attesting submission of an application for a family member residence card, of a residence card or of a permanent residence card, may under no circumstances be made a precondition for the exercise of a right or the completion of an administrative formality, as entitlement to rights may be attested by any other means of proof.
EUN2.20 What are the visa endorsements for EEA family permits?
After entry to the UK the holder can apply to the Home Office for a residence card. A residence card (an endorsement in the holder’s passport) enables the holder to re-enter the UK without the need for an EEA family permit for as long as they are the family member of an EEA national with a right of residence in the UK. A residence card, which is normally valid for five years, is simply a confirmation of the holder’s right of residence in the UK – it is not a compulsory requirement.
That means that the expiry of a non-compulsory document should have no baring on the issue of an migrant's expired EEA Residence Card
⦁ What is the date of the in-country (UK) application ?
"203. For applications made in the UK, the date of application is taken to be the date of posting or, where the application form is sent by courier, the date on which it is delivered to us, for online applications this is taken to be the date of submission, or where the application form is submitted in person, the day the application form is accepted by our premium service centre (PSC).".
Recent case-law
⦁ Case note from Jed Pennington on N v SSHD CO/3882/2016, settled bail judicial review (1 March 2017)
Summary:
N applied for bail accommodation under s.4(1)(c) of the Immigration Act 1999 to facilitate his release from immigration detention. Due to delay in sourcing this, he offered the address of a friend with whom he could stay short term so as not to delay his release. He was released with electronic tagging and a residence condition at this address. He was told that his application for bail accommodation had been ‘voided’ by supplying his friend’s address, and he had been released on a Restriction Order (RO) rather than bail, so there was no power to supply bail accommodation. He was told to make an application for support under s.4(2) of the 1999 Act. However, this would be refused because he was not prepared to make a voluntary departure.
N contended that the SSHD should re-impose the conditions as bail rather than the RO so as to allow bail accommodation to be provided under s.4(1)(c) to enable him to comply with electronic monitoring conditions. He judicially reviewed the SSHD’s failure to do so, arguing that it was irrational to impose conditions without offering the means to comply. The Administrative Court ordered the SSHD to provide s.4 support on an interim basis despite N remaining on the RO. The SSHD then issued a new RO with electronic tagging at the address provided to comply with the Court’s order, yet applied to the Court to evict N. Following further submissions, the SSHD did replace the RO with a grant of bail, and ultimately conceded the JR following the grant of permission with a consent order providing for support to continue. The case demonstrates that the SSHD can move someone to bail who has been conditionally released under another statutory power if release on bail is necessary to provide him with bail accommodation to enable compliance with the conditions of his release.
⦁ UB (Sri Lanka) v SSHD [2017] EWCA Civ 85 (3 March 2017)
Of particular interest in this case is that the Court of Appeal finds ‘the clearest obligation’ on the Secretary of State to serve her past policy documents (in this case a past country policy on Sri Lanka) and ensure that they are before the Tribunal. The Court cites AA (Afghanistan) v SSHD (2007) EWCA Civ 12 :
"27. [It was submitted by the appellant that] the attention of the adjudicator should have been drawn by the Secretary of State's representative to the policy on interviewing unaccompanied minors, so as to avoid him being misled: see R v. Special Adjudicator, ex parte Kerrouche (1997) Imm AR 610
28. As a matter of law, that is right. The Secretary of State should draw relevant parts of his policy to the adjudicator's attention. Merely because those policy documents are publicly available in print or on a website is not enough: where issues of risk of persecution are involved, a decision to return a person or not to his country of origin should not depend on the diligence of that person's representatives." (Keene LJ) and Mandalia v SSHD (2015 1 WLR 4546 (2015) UKSC 59):
"irrespective of whether the specialist judge might reasonably be expected himself to have been aware of it, the Home Office presenting officer clearly failed to discharge his duty to draw it to the tribunal's attention as policy of the agency which was at least arguably relevant to Mr Mandalia's appeal." (paragraph 19 per Lord Wilson) Lord Justice Irwin stated in UB (Sir Lanka)
“21. I deprecate any suggestion that this obligation of service is displaced or diminished by the availability of the material online. Mr Hare for the Secretary of State did not in fact mount this argument, although it seems likely from exchanges before the hearing that he was pressed to do so. He was right to decline such an argument. Apart from the clear obligation in law derived from authority, many appellants in immigration and asylum cases are unrepresented. In a number of cases where there is legal representation, the quality of representation is less than optimal.
22, The obligation is clear but must not be taken beyond the proper bounds. There is no obligation on the Secretary of State to serve policy or guidance which is not in truth relevant to the issues in hand, and complaints as to alleged failures of disclosure of material which is truly peripheral or irrelevant should readily be rejected. “
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Who may not use the NHS and whose immigration applications may be refused by the UK BA/UK VAC if there was recourse to NHS in the past ?
The Department of Health’s guidance (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/496951/Overseas_visitor_hospital_charging_accs.pdf) is useful in listing those who are “overseas chargeable patients”, which include:
- those in the UK without the right to remain
- those on visitor visas
- those on visas as fiancé(e)s/proposed civil partners
The current NHS debt threshold (that is, to trigger a refusal) is set at £500.00
⦁ How one can increase his or her chances of success with the UK Visitor Visa application ?
The ECO will be asking whether an applicant has a good reason to return to their home country. The strength of the evidence provided in relation to this area of the application will be key in determining its outcome.
The Home Office provides guidance (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/549692/Visitor_Supporting_Documents_Guide_-_English_version.pdf) to applicants as to what type of documents they might submit. In order to demonstrate that applicants in full time work or study might be more likely to return after their visit (and are therefore genuine visitors), the guidance suggests that evidence of such full-time employment or full-time of study should be provided. Letters should be submitted from the relevant institutions on headed paper, and provide as much detail as possible on the nature of the applicant’s engagement (either work or study) in the home country.
The stronger the evidence of the tie to the home country, the more likely an ECO will be persuaded that the applicant will leave at the end of the visit to resume the activity.
In order to demonstrate that an applicant has the means to support him or herself during the course of the trip, the guidance suggests that financial documents are submitted, clearly showing access to the required funds, such as bank statements and proof of earnings such as a letter from an employer confirming the applicant’s employment details (e.g. start date of employment, salary, role, company contact details).
It is possible to receive financial support from a third party (who is legally in the UK), and if this is the case then the third party should submit documents to show they have sufficient resources to support the applicant in addition to themselves and any dependant family. If the third party has previously sponsored visitors who have complied with the terms of their visa then this would also be useful evidence to provide in the form of a covering letter from them, with details of the previous sponsored visits.
If the applicant has a good travel history – e.g. has previously complied with UK visa conditions, as well as immigration requirements in other developed countries (the guidance suggests ‘USA, Canada, Australia, New Zealand, Ireland, Schengen countries or Switzerland’) – then this will be something to make clear in the application. The guidance on documentary evidence suggests that previous passports (in addition to the current one) might be supplied to demonstrate this past compliance.
⦁ Tribunal on recorded video evidence and Article 8 considerations
Official headnote to Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) [2017] UKUT 16 (IAC):
(i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.
(ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.
(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.
(iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.
⦁ Updated Home Office guidance on criminality in article 8 ECHR cases: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Non-EEA applicant's EEA Permanent Residence application and the need to travel overseas while the applicant's EEA(PR) application is being considered
The following scenario could be useful to some of the applications, who may find themselves in the above-mentioned circumstances. The client A's job required a lot of travelling while A's EEA(PR) application was with the UK BA. The request to return the A's original passpprt from the UK BA was duly lodged with the reasons stating that the client would lose the job if the client would not able to fulfill the job duties. A stress was put on that the client did not want to withdraw the outstanding EEA(PR) application. The client received the passport from the UK BA and simply travelled outside of the UK with the Certificate of Application along with the client partner’s documents to show that the client remained a family member of a qualified EEA national and the client did not have any problems re-entering the UK
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Home Office ends policy of automatic settlement for refugees after five years: https://www.gov.uk/government/publications/asylum-under-immigration-rule-334-process
The Home Office has announced a new policy of reviewing whether all refugees require protection at the end of a five year initial period of leave. The policy appears to be effective immediately for all refugee settlement applications, including for refugees already resident in the UK and who were expecting to qualify automatically for settlement.
⦁ New Criminality Checks requirement for certain types of Tier 2 applications
From April 2017, the Government plans to extend the requirement to provide a criminal record certificate to the following applicants: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/596072/Tier_2_Policy_Guidance.pdf
- Tier 2 (General) entry clearance applicants coming to work in the education, health and social care sectors
- Partners of the main applicants as above
- Partners applying overseas to join an existing Tier 2 (General) migrant working in one of these sectors.
Certificates must be provided for any country in which the applicant has resided for 12 months or more (whether continuously or in total) in the last 10 years prior to their application, while aged 18 or over
⦁ Draft Immigration Skills Charge Regulations 2017 - The Immigration Skills Charge: https://www.publications.parliament.uk/pa/ld201617/ldselect/ldsecleg/126/12602.htm
These draft Regulations impose an obligation on persons who sponsor skilled migrants from certain overseas territories to pay a charge in respect of each skilled migrant whom they sponsor - the immigration skills charge. In the light of data showing that, on average, employers in the UK under-invest in training compared with other countries, the Government have said that they want to incentivise employers to invest in training the resident workforce, through the introduction of the charge, thus reducing reliance on migrant workers.
⦁ UK BA requirements in relation to documents certification: https://www.gov.uk/certifying-a-document
⦁ UK BA interactive tool in relation to the so-called "Right to Rent": https://www.gov.uk/landlord-immigration-check
⦁ Ukrainian prison conditions breach Article 3 but draft evaders can still be sent back says Upper Tribunal: http://www.bailii.org/uk/cases/UKUT/IAC/2017/79.html
1. At the current time it is not reasonably likely that a draft-evader avoiding conscription or mobilisation in Ukraine would face criminal or administrative proceedings for that act, although if a draft-evader did face prosecution proceedings the Criminal Code of Ukraine does provide, in Articles 335, 336 and 409, for a prison sentence for such an offence. It would be a matter for any Tribunal to consider, in the light of developing evidence, whether there were aggravating matters which might lead to imposition of an immediate custodial sentence, rather than a suspended sentence or the matter proceeding as an administrative offence and a fine being sought by a prosecutor.
2. There is a real risk of anyone being returned to Ukraine as a convicted criminal sentenced to a term of imprisonment in that country being detained on arrival, although anyone convicted in absentia would probably be entitled thereafter to a retrial in accordance with Article 412 of the Criminal Procedure Code of Ukraine.
3. There is a real risk that the conditions of detention and imprisonment in Ukraine would subject a person returned to be detained or imprisoned to a breach of Article 3 ECHR.
⦁ UK BA re-entry bans: https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-9-grounds-for-refusal
The Home Office can impose entry bans to individuals who have previously breached immigration law or used deception in their applications for leave. Bans can last 1 year, 2 years, 5 years or 10 years.
When does the re-entry ban period start ?
The ban period will start on the date an individual left UK or, if there in the case of a 10 year ban following the use of deception in an application, from the date of the refusal of that application.
When do re-entry bans do not apply ?
Re-entry bans do not apply to applications made under:
- Appendix FM (Immigration Rule A320)
- Appendix Armed Forces (Immigration Rule B320)
- EEA Regulations, namely applications for a European Family Permit
Under rule 320(7B), those who breached immigration law while they were minors will also not be subject to re-entry bans.
Also, there are some exemptions for other groups of individuals, where the entry bans do not apply, too. In particular, re-entry bans do not apply to those who:
- Were not aware that the documents they submitted or the representations made with previous applications were false.
- Those who have been issued with a visa despite a re-entry ban being in place.
- Those who were in the UK without permission after 17 March 2008 but who left before 1 October 2008
- Victims of trafficking
- Where a student was refused leave after 1 September 2007 solely on the basis that the made an out-of-time application.
One should bear in mind, however, that the individuals above (with the exception of those applying under the EEA Regulations), might still be caught by Immigration Rule 320(11), which gives the Secretary of State the power to refuse an applicant who has “previously contrived in a significant way to frustrate the intentions of the Rules” (i.e., as per Rule 320 (7B), an individual overstayed, breach the condition of their leave, was an illegal entrant or used deception in an application for leave, when “there are other aggravating circumstances”, such as absconding, making frivolous applications, not complying with a re-documentation process etc.
This is a discretionary ground for refusal, which means that the Secretary of State may decide whether or not to refuse an application on this ground
A new Statement of Changes to the Immigration Rules (HC 1078) was published on the 16th March 2017. The headlines are below with further details in the resource which will probably be updated as the change was generally a "massive" one (269 pages).
Headlines
· Change to Part 1 providing that an applicant can only have one outstanding application for leave to remain at a time with any subsequent application lodged while another is pending treated as a variation application
· The period of overstaying permitted before a re-entry ban is imposed is reduced from 90 days to 30 days, with certain periods disregarded
· There is a change to the language of one of the provisions where leave must be refused for those subject to the restricted leave policy
· Tier 1: in Tier 1 (Entrepreneur), there are technical changes to drafting and certain evidential requirements, including an amended definition of ‘invested funds’. Changes to Tier 1 (Graduate Entrepreneur) allow remaining allocations of places to be allocated to endorsing bodies throughout the year rather than on the fixed date of 30 September. Tier 1 (Exceptional Talent) contains changes requested by Arts Council England and Tech City UK. In Tier 1 (General), the time for applicants to respond to further information requests is reduced from 28 working days to 28 calendar days
· The second phase of changes following the MAC review is introduced to Tier 2 (General) and Tier 2 (ICT) including changes to salary thresholds and the closure of the Short Term Staff category of the ICT route. In a further change to both categories related to the Immigration Skills Charge, Certificates of Sponsorship will be considered invalid if any charge that applies is not paid in full
· Other changes to Tier 2 (General) include a new requirement for those intending to work in education, health and social care sectors and their adult dependents to provide a criminal record certificate
· There are a number of smaller changes in Tier 4, Tier 5 and on some matters relevant to all Points-Based System routes
· The problematic definition of ‘continuous’ for the purpose of residence requirements introduced in the last Statement of Changes is deleted for family members of Points-Based System migrants
· Small changes to Appendix FM and FM-SE, including on requirements for recognition of marriage, on certain evidential requirements, and to make provision that limited leave to remain granted to a child in line with their parent will be subject to the same condition on recourse to public funds, and to make changes to evidential requirements
· Visitor rules allow for applications for visit visas to be made at any post in the work that is designated to accept them. The list of Permit free Festivals is updated
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ The Sheffield Visa Section will also process PBS and EEA applications submitted in:
· Pakistan · Tunisia · Morocco · Russia · India (non Priority only) · Sri Lanka (non Priority only) · Minsk · Paris
⦁ Are citizens of the Republic of Ireland deemed to be Settled in the UK ?
Immigration Rule 15 states that:
15.The United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland collectively form a common travel area. A person who has been examined for the purpose of immigration control at the point at which he entered the area does not normally require leave to enter any other part of it. However certain persons subject to the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended) who enter the United Kingdom through the Republic of Ireland do require leave to enter. This includes:
(i) those who merely passed through the Republic of Ireland;
(ii)persons requiring visas;
(iii)persons who entered the Republic of Ireland unlawfully;
(iv)persons who are subject to directions given by the Secretary of State for their exclusion from the United Kingdom on the ground that their exclusion is conducive to the public good;
(v)persons who entered the Republic from the United Kingdom and Islands after entering there unlawfully or overstaying their leave.
Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens. Ireland is not considered to be a “foreign country” for the purpose of UK laws, and Irish citizens are not considered to be “aliens”. Irish citizens are treated as if they are settled in the UK from the date they take up “ordinary residence” here. s50(1) of the BNA 1981 describes an “alien” as a person who is neither a Commonwealth citizen nor a British protected person nor a citizen of the Republic of Ireland. “Foreign country” is also defined as a country other than the United Kingdom, a British overseas territory, a country mentioned in Schedule 3 and the Republic of Ireland;
This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, they have more advantageous rights than other EU/EEA nationals in some areas.
So, it may be assumed that citizens of Ireland can apply for nationality because they have a qualifying immigration status for the purposes of Schedule 1, 2A(d) of the BNA 1981 meaning they just have to meet the other requirements of residence and good character etc.
⦁ EEA citizens need to have formally obtained Permanent Residence document in the UK on the basis of the British Nationality (General) (Amendment No. 3) Regulations 2015 in order to be able to Naturalize in the UK
⦁ The use of the Home Secretary’s power to strip a British citizen of their citizenship is on the rise.
It has been the subject of debate where its use has rendered a person stateless following a series cases in the higher courts. The case of K2 v the United Kingdom (Application No 42387/13) K2 is another said example.
In K2, the attempt focused on the applicant’s right to a private and family life under article 8 of the European Convention on Human Rights. The complaint was declared inadmissible, in a judgment in which the applicant’s private life and family feature very little indeed
⦁ Student accused of ETS fraud found to have been unlawfully detained
In R (on the application of Iqbal) v Secretary of State for the Home Department [2017] EWHC 79 (Admin) the Secretary of State for the Home Department (SSHD) was found to have unlawfully detained a claimant whom they had alleged had fraudulently obtained an Educational Test Service (ETS) certificate to show that he spoke English to the level required for his immigration application.
The Home Office decided to remove him under s.10 Immigration and Asylum Act 1999
⦁ The UK’s spousal and family visa regime: some reflections after the Supreme Court judgment in the MM case: http://legalresearch.blogs.bris.ac.uk/2017/03/the-uks-spousal-and-family-visa-regime-some-reflections-after-the-supreme-court-judgment-in-the-mm-case/
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ As from 1 May 2017, non-EEA nationals will need to pass a Secure English Language Test (SELT) in speaking and listening at level A2 after two-and-a-half years in the UK in order to qualify for further leave to remain on the five-year partner or parent route to settlement: https://www.gov.uk/government/news/changes-to-the-immigration-rules?dm_i=1IYR,4TZQR,82XG5F,I8S2J,1
⦁ EEA Family Permit applications - can a certified passport copy be submitted ?
The 2016 regulations have been amended to make it look like a valid passport or ID card for the EEA National is required for a family permit application as the heading of regulation 21 is Procedure for applications for documentation under this Part and regulation 12. At this time not all the UK BA caseworkers are apparently familier with this change, hence it is still advisable to lodge the original EU ID document.
What about EEA Family Permit applications re: submission of the EU sponsor's certified ID ?
The home office guidance called the "Processes and procedures for EEA documentation applications" – version 5.0 – 14 February 2017 at page 12 specifically states that a photocopy (NB ! certified !) of the passport or ID card is acceptable for the purposes of an EEA Family Permit application.
⦁ Draft Immigration Skills Charge Regulations 2017 House of Commons and House of Lords Debate hansard (22 March 2017):https://hansard.parliament.uk/Commons/2017-03-22/debates/20d23f8e-c893-4012-980f-5a699d5f9ea1/DraftImmigrationSkillsChargeRegulations2017
⦁ The House of Commons Justice Committee has published its report on the implications of Brexit for the justice system: https://www.publications.parliament.uk/pa/cm201617/cmselect/cmjust/750/75002.htm
Recent case law
⦁ R (on the application of Agha v Secretary of State for the Home Department (False document) [2017] UKUT 00121(IAC: https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-121
For a document to be a false document under the Immigration Rules there must have been an element of dishonesty in its creation and if this is not immediately obvious in a case of an inaccurate document then that element must be engaged with in any refusal.
⦁ SF and others (Guidance, post–2014 Act) Albania [2017] UKUT 00120 (IAC): ⦁ https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-120
Head note
Even in the absence of a “not in accordance with the law” ground of appeal, the Tribunal ought to take the Secretary of State’s guidance into account if it points clearly to a particular outcome in the instant case. Only in that way can consistency be obtained between those cases that do, and those cases that do not, come before the Tribunal.
What it is all about ?
The Home Office had not in this case applied its guidance on when it is reasonable to require a British Citizen child and her family members to leave the UK, an issue that only became apparent when the Presenting Officer drew the guidance to the attention of the Upper Tribunal at the hearing. Had the guidance been considered, the conclusion would have been that the appellants should have been granted a period of leave in order to enable the British citizen child to remain in the UK with them. The Upper Tribunal considered how the guidance affected the decision of the First-tier Tribunal or the Upper Tribunal.
It stated (§10):
It is clear that the appellants do not have available to them a ground of appeal on the basis that the decision was not in accordance with the law such as before the amendments made to the 2002 Act by the 2014 Act they might have had. Nevertheless it appears to us that the terms of the guidance are an important source of the Secretary of State’s view of what is to be regarded as reasonable in the circumstances, and it is important in our judgement for the Tribunal at both levels to make decisions which are, as far as possible, consistent with decisions made in other areas of the process of immigration control.
The Tribunal concluded (§12):
But where there is clear guidance which covers a case where an assessment has to be made, and where the guidance clearly demonstrates what the outcome of the assessment would have been made by the Secretary of State, it would, we think, be the normal practice for the Tribunal to take such guidance into account and to apply it in assessing the same consideration in a case that came before it.
The Upper Tribunal allowed the family’s appeal, setting aside the decision of the First-tier Tribunal.
⦁ R (on the application of Ayache) v The Secretary of State for the Home Department (paragraph 353 and s94B relationship) [2017] UKUT 00122 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-122
1. Although paragraph 353 does not refer in terms to certification, a decision certified pursuant to s 94b is plainly a decision on a “human rights claim” albeit a claim regarding temporary removal as opposed to removal for a more lengthy period if a statutory appeal is unsuccessful. In deciding whether to certify under s94B the respondent, and the Tribunal, cannot act in a way which is incompatible with the applicant’s Convention rights. It must follow that further submissions made and considered in accordance with paragraph 353 Immigration Rules would fall within their ambit, including the appropriateness of certification. Certification is a response to the human rights claim, albeit focused upon temporary removal rather than the main claim.
2. Paragraph 353 Immigration Rules provides the appropriate remedy where further information and evidence is sought to be placed before the respondent, rather than such material being considered in judicial review proceedings.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
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⦁ IHS and Children Entry Clearance applications: a child is subject to to IHS, unless the child is granted ILE
⦁ UK Visas and Immigration (UKVI) Guidance: Domestic workers in private households (24 March 2017)
Guidance on applications for leave from domestic workers in private households: https://www.gov.uk/government/publications/domestic-workers-in-private-households
⦁ Failure to register under WRS v Naturalization for A8 EEA Nationals
The A8 EU national may have their Naturalization applications refused is these A8 EU nationals failed to register with the WRS within the 10 years from the date of the naturalization application. There is a high chance of refusal where the non-WRS registration information has been disclosed to the Home Office, for example in an earlier Permanent Residence application
⦁ Evidence in the retained rights of residence cases
Where the non-EEA spouse has difficulty obtaining evidence, the Government MAY assist the applicant. After all, if the EEA national is working then there will be records of National Insurance payments and income tax being paid. The UK BA has the power to assist, under s.40 of the UK Borders Act 2007. It generally lacks the inclination, sadly.
This issue arose in the important case of Amos v Secretary of State for the Home Department [2011] EWCA Civ 552. The Court of Appeal left open the question of whether or how far UKBA would assist a claimant if requested to do so and how the tribunal might react if UKBA declined to assist.
⦁ 240 jobs available in Liverpool Visas and Immigration department for processing EU casework.
Do not get surprised is your case is delayed: http://www.liverpoolecho.co.uk/news/liverpool-news/240-civil-service-jobs-available-12782093
Recent case-law
UK Visas and Immigration, Guidance: EEA case law and appeals, 27 March 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2017/178.html
The Home Office has updated this guidance to remove the page on proxy marriages discussing the cases of Kareem [2014] UKUT 24 (IAC) and TA [2014] UKUT 316 (IAC). This follows the recent Court of Appeal judgment in Awuku v Secretary of State for the Home Department [2017] EWCA Civ 178 (23 March 2017)
Guidance: https://www.gov.uk/government/publications/european-economic-area-eea-case-law-and-appeals
⦁ High Court declares unlawful the abolition of right of appeal for Turkish nationals
In the case of R (on the application of Akturk) v Secretary of State for the Home Department [2017] EWHC 297 (Admin) a Turkish wannabe window cleaner entered the UK as a visitor and then applied for leave to remain to establish his window cleaning business under the 1973 Immigration Rules, known as HC510. These rules continue to apply to self employed Turks because of the “Ankara Agreement”, the accession treaty between the EU and Turkey to which the UK signed up on joining the EU in 1973. This treaty included a “standstill clause” which prevents the imposition of additional immigration rules over and above those in place at the time of the treaty, which for the UK means the rules for self employed Turks are those that applied in 1973.
Mr Akturk made an application for judicial review. His argument was that the decision was unlawful and unfair and that he should also have been allowed a full right of appeal, as rights of appeal were available back in 1973.
The application was refused because the applicant had no bank account, but the applicant was unable to open a bank account because the Immigration Act 2014 prevented him from doing so. Various points were taken against the applicant without his having an opportunity to answer them. The decision maker assumed the applicant could not speak very good English and that this would hamper the development of his window cleaning business.
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Do Schengen states have to issue humanitarian visas to refugees?
This question was asked of the Court of Justice by a Belgian court regarding an application for humanitarian visas made by a Syrian family at the Belgian consulate in Beirut: does the Schengen Visa Code in conjunction with the EU Charter on Fundamental Rights require Member States to issue humanitarian visas to refugees? (C-638/16 PPU X & X, 7 March 2017).
The Advocate General surprised everyone by finding that there was such an obligation on 7 February. A number of Member States were very anxious. But a month later the Court held that there is no EU obligation for states to issue humanitarian visas and this is a matter for national law.
The legal reasoning of the Court is:
1. There is EU competence to adopt measures on humanitarian visas;
2. The EU has not (yet) done so;
3. The Schengen Visa Code only regulates short stay visas;
4. The objective of a humanitarian visa is a long stay (well longer than 90 days);
5. The Dublin III (soon to be IV) system of allocating responsibility for asylum seekers to Member States would be undermined if refugees were entitled to humanitarian visas as that would allow them to choose which Member State they wanted to go to (a rather poor argument in my opinion).
So, no EU obligation but maybe the European Court of Human Rights will revisit the issue in due course.
⦁ Irish nationals’ special status in UK law and other useful immigration news
ENG: Legal Centre’s Services at a glance: https://legalcentre.org/
RUS: Вкраце об услугах Legal Centre: https://legalcentre.org/language.php?lang=ru
⦁ Irish nationals’ special status in UK law: https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&ved=0ahUKEwjIjr-tpoHTAhVlLMAKHR6ABB0QFggjMAE&url=http://researchbriefings.files.parliament.uk/documents/CBP-7661/CBP-7661.pdf&usg=AFQjCNFr0ucIVOiS-ewVInqJ-R77GQzmWQ&sig2=5ubqODNKiUj-W_aA6lb04g
Irish nationals have a special status in UK law which is separate to and pre-dates the rights they have as EU citizens.
In short, Ireland is not considered to be a “foreign country” for the purpose of UK laws, and Irish citizens are not considered to be “aliens”. Furthermore, Irish citizens are treated as if they have permanent immigration permission to remain in the UK from the date they take up “ordinary residence” here.
This special status affects Irish nationals’ rights across a number of areas, including eligibility for British citizenship, eligibility to vote and stand for election, and eligibility for certain welfare benefits. As a result, they have more advantageous rights than other EU/EEA nationals in some areas.
Recent case-law
⦁ Ahmed and Others (deprivation of citizenship) [2017] UKUT 00118 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-118
(i) While the two fold duties enshrined in section 55 of the Borders, Citizenship and Immigration Act 2009 are imposed on the Secretary of State, the onus of making representations and providing relevant evidence relating to a child’s best interests rests on the appropriate parental figure.
(ii) A failure to discharge this onus may well defeat any argument that there was a proactive duty of enquiry on the Secretary of State in a given context.
(iii) In deprivation of citizenship cases, section 55 issues arise at two stages: at the deprivation of citizen stage and at the later stage of proposed removal or deportation.
(iv) As the subject of national citizenship lies exclusively within the competence of Member States, EU law has no role to play in deprivation cases: G1 v SSHD [2012] EWCA Civ 867 applied.
(v) The Secretary of State’s deprivation of citizenship policy confers a wide margin of appreciation on the decision maker.
(vi) Part 5A of the Nationality, Immigration and Asylum Act 2002 does not apply to deprivation of citizenship decisions as such decisions are not made under the Immigration Acts.
(vii) There would be a considerable saving of human and financial resources with consequential reduced delay if deprivation of citizenship and deportation or removal decisions were to be made jointly.
⦁ According the the UK BA Sheffield, who is now dealing with a number of Entry Clearance types of applications, such as Settlement Entry Clearance applications (spouse, fiance(e), unmarried partners) as well as EEA Family Permits and PBS applications (Tier 1,2,4,5) etc, the application target consideration times as as follows:
- Visit Visa applications: 15 working days
- Settlement Visa applications (including the EEA applications): 12 weeks
The UK BA says that in case when it is not possible to complete the consideration of the applicant's application within the mentioned time frame, a member of the UK BA team will contact the applicant to explain why the UK BA needs more time
⦁ Modernized guidance for how UK Visas and Immigration considers applications from dependents of part 5 migrants: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/489255/Dependants_of_part_5_migrants_v1.0_EXT_clean.pdf
⦁ Home Office say it is “longstanding practice” not to remove EU citizens lacking comprehensive sickness insurance:
In a written Parliamentary answer yesterday the Government stated self sufficient or studying EU citizens without comprehensive sickness insurance (CSI) are “not lawfully resident” in the UK and “may be liable for removal” but that it is “longstanding Home Office practice” not to seek removal because “it is relatively straight forward to rectify.” The implication seems to be that those without CSI are expected to “rectify” their situation.
Recent case-law
⦁ Court of Appeal reaffirms position on adult dependent relatives: http://www.bailii.org/ew/cases/EWCA/Civ/2017/184.html#back7
In Butt v SSHD [2017] EWCA Civ 184 the Court of Appeal considers the weight to be given to the relationship between parents and their adult dependent children in the Article 8 balancing exercise. It is notable – and this was the principle reason it managed to reach the Court of Appeal – because of the original decision of the First-Tier Tribunal (FTT) to make separate findings in relation to parents and those adult dependent children: allowing the appeals of the latter, while rejecting the former.
⦁ When is it reasonable to require British citizen children to leave Britain: http://www.bailii.org/uk/cases/UKUT/IAC/2017/120.html
Two interesting and important legal points emerge from the Upper Tribunal’s determination in SF and others (Guidance, post-2014 Act) [2017] UKUT 120 (IAC). The first is on the issue of when, if at all, a British child might be required by immigration policy to leave the UK and the second is how far, if at all, the tribunal might take account of policies of the Secretary of State under the new appeals regime established by the Immigration Act 2014.
⦁ Extract from the recent case-law where even the immigration judges condemm the UK BA policy
Is a 3-year old UK born child, also PBS dependant overstayer, who has failed under para 319H(m), still able to succeed under paras A277, A280(b), 304-309?
Was the refusal contrary to Section 55 and unreasonable, similar to the case of Forrester, R (on the application of) v Secretary of State for the Home Department [2008] EWHC 2307 (Admin) (05 September 2008) wrote:
"16. This is a classic example of a thoroughly unreasonable and disproportionate, inflexible, application of a policy, without the slightest regard for the facts of the case, or indeed elementary common sense and humanity. Such an approach diminishes, rather than encourages, respect for the policy in question…."
Immigration and Nationality (fees) Regulations 2017: changes to come into effect on 6 April 2017 (4 April 2017)
New fees will take effect from 6 April 2017. These are set out in the Immigration and Nationality (Fees) Regulations 2017, SI 2017/515. There are some very substantial increases, in particular in the case of ILR which will now cost over 2000.
⦁ Marriages and civil partnerships in the UK Guidance: https://www.gov.uk/marriages-civil-partnerships/foreign-national
⦁ List of the designated Register Offices in the UK for visa nationals to give Notices of Marriage to: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/224796/DROs_GOV_UK..pdf
⦁ How to cancel a (partner/dependent etc) visa when you separate or divorce ?
One can write to the Manchester Curtailment Team: https://www.gov.uk/visas-when-you-separate-or-divorce/tell-home-office and request the other party's visa to be cancelled
⦁ An EEA national, who obtains a Permanent Residence status in the UK and, provided that EEA national does not become a British citizen, can still sponsor other family members so they can come to live with that EEA national in the UK under the EEA law. That means that that EEA national with the Permanent residence status is no longer required to show that he/she is a qualified person any more.
06 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Following the UK BA application fees rise on the 6th April 2017 (some very significant), the UK BA also introduced new application forms for quite a number of the immigration categories, including the new forms for both the UK (FLR, SET etc) and EEA (EEAFM etc) immigration laws applications 6th April 2017