07 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 from the 6th April 2017
⦁ Immigration Skills Charge Regulations 2017 finalised version (5 April 2017)
The finalised version of the Immigration Skills Charge Regulations 2017 has been published after having been laid before parliament. The Immigration Skills Charge Regulations 2017 SI 2017/499 were made on 29 March 2017 and will come into force on tomorrow, 06 April 2017.
According to the UK BA, the Immigration Skills Charge will not apply to the following category of migrants:
- a non-EEA national who was sponsored in Tier 2 before 6 April 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
- a Tier 2 (Intra-Company Transfer) Graduate Trainee
- a worker to do a specified PhD level occupation
- a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
⦁ New sets of UK BA Guidances published 5 April 2017 (6 April 2017)
⦁ It has been reported that migrants can be detained if, following their immigration applicataton, when are being called to receive a decision in person at one of the UK BA offices
⦁ A child visiting a parent, who has ILR and also has sole responsibility for that child, may potentionally apply in the UK to switch into a dependent's category under the paragraphs A277, A280(b), 298, 299, etc,. However, it shold be noted that the UK BA may refuse such a switching application under the paragraph 322(7) because of V4.2 (a) & (c), unless there was an acceptable change of circumstances
11 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 Permanent Residence status in the UK, does not need to maintain qualified person status in the future in order to reside in the UK, sponsor other family members etc
⦁ General grounds for refusal: criminal convictions, public good, character, conduct and associations
Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. This has always been so, but in December 2012 the rules were changed to permanently ban entry of those with serious convictions, other than in certain very narrow circumstances, and to impose entry bans of various lengths in other cases.
General grounds for refusal of applications for entry clearance or leave to enter are set out at paragraph 320 of the Immigration Rules and general grounds for refusal of applications to extend or vary leave are set out at paragraph 322
⦁ The UK BA is clearly profiteering on the migrants
New fees for immigration and nationality applications come into effect on 6 April 2017. The changes include an increase of 18% in settlement (ILR) applications to £2,297 and dependent relative applications to a huge £3,250.
Many suspect the Home Office makes a hefty profit on these fees. They are correct. The actual cost of processing an ILR application is £252 and a naturalisation application cost the Home Office £386. Most outrageous is the application fee for registering a child as British. The fee in 2017 is £973, which has just gone up yet again, but the actual cost was £386.
It is not just individual migrants who are being squeezed for fees. The Immigration Skills Charge Regulations 2017 have also been published, coming into effect on 6 April 2017. These impose on employers who recruit foreign workers from outside the EU a charge of £1,000 per worker per year. A lower charge of £364 per worker per year is applicable to small businesses and universities and some exemptions apply. The charge only applies to new recruits, not existing ones.
⦁ Upper Tribunal dismisses appeal against deprivation of citizenship of Rotherham sex gang: Ahmed and Others (deprivation of citizenship) [2017] UKUT 118 (IAC)
The official headnote:
(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.
⦁ The recent changes in the UK Immigration Law in relation to lodging concurrent applications and/or variation of the existing application
The pare 34BB states that:
“34BB :
(1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.
(3) Where more than one application for leave to remain is submitted on the same day then subject to sub-paragraph (4), each application will be invalid and will not be considered.
(4) The Secretary of State may give the applicant a single opportunity to withdraw all but one of the applications within 10 working days of the date on which the notification was sent. If all but one of the applications are not withdrawn by the specified date each application will be invalid and will not be considered.
(5) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules.”
These changes are intended to ensure that applicants are aware that they cannot submit applications simultaneously. The UK BA is also making changes to the online and paper application forms to make this much clearer for the applicant and, of course has updated their guidance on validity to reflect this position. The guidance can be found on the UK BA web-site. Where an application is varied it must meet all the requirements of paragraph 34 of the Immigration Rules for the variation to be valid.
An applicant can still submit one application while a previous application is outstanding. The second application will have the effect of varying the first and, accordingly, only one fee is payable.
⦁ According to Dave Hollings Tennant, Immigration and Border Policy Directorate Home Office, there are no fees for settlement applications from stateless persons, despite the earlier UK BA fee increase announcement implying that it would
12 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) (10 April 2017)
The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) came into force at noon on 15 March 2017.
Under article 28 of the Dublin III Regulation, Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013, a person who has made an application for international protection may only be detained where they present a significant risk of absconding. Article 2(n) provides that “risk of absconding” means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that the individual who is subject to a transfer procedure may abscond.
These regulations set out the criteria which will be considered to determine whether a person who has claimed asylum in the UK, but whose application is subject to the Dublin III Regulation procedure, presents a significant risk of absconding for the purpose of considering whether they should be detained. The Explanatory Note says "The urgency arises from the handing down on 15 March 2017 of a ruling by the Court of Justice of the European Union in the case of Al Chodor C-528/15 on the interpretation of the Dublin III Regulation".
In its 15 March 2017 judgment on that case, the Court of Justice considered the case of an Iraqi father and his two children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act. The detention was challenged before a Regional Court, which ruled it to be unlawful since the Czech legislation contained no objective criteria defining “risk of absconding”. The Supreme Administrative Court referred a question for a preliminary ruling on the need for objective criteria in legislation to define a ‘risk of absconding’.
The Court held that Article 2(n) of the Dublin III Regulation requires the criteria to establish a ‘risk of absconding’ to be ‘defined by law’, in a binding provision of general application. In the absence of that, Article 28(2) does not apply and detention on this ground must be declared unlawful. that “settled case-law confirming a consistent administrative practice . . . cannot suffice.”
13 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ What happens if you paid a UK BA fee before the UK BA fee increase but your PEO application date is after the fee increase date
Not to panic. See para 17 below. This happens each year and from our experience we have never had a need to pay a further fee. We in fact make sure clients have paid and booked for the PEO appointments before the fee increase comes in where possible (typically for slots up to 6 weeks after 5 April but sometimes the fee increase can be implemented earlier – end of March, for example).
Payments for in person applications
17.—(1) Where—
(a) an application is made in person; and
(b) the applicant pays the fee in relation to such an application prior to the date that the application is made,
the fee payable is that in relation to the relevant application on the date of payment.
(2) In this regulation, the date of payment means the date on which the payment is made by the applicant, unless it is made by post, in which case it means the date that the payment is posted.
⦁ Does the Trinity College English language certificate expire if a test was taken in 2014 ?
It does. After the 6th April 2015, SELT test were introduced. Anyone submitting an application required to do a new SELT test. They have a 2 year expiry date. See Appendix O of the Immigration Rules and FM 1.21 English Language Guidance
18 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
This guidance is issued for frontline staff, mainly immigration officers, who will use the new powers in the Immigration Act 2016 to issue closure notices and apply for compliance orders to prevent illegal working.
Quite a helpful guide to the technical aspects of immigration applications.
This guidance is for decision makers and describes how to decide whether an application for leave to remain in the UK is valid, and what to do if it is not. It also describes how an applicant can vary and withdraw an application and how to calculate the date of application.
The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area.
"After that, targets increased to the point that almost everything became subservient to the end-decision. We were set a target of 220 “units” a year. Only an interview or a decision would count as a unit – any casework would not.
If I had to call social services because I was concerned about a child, it didn’t count towards this target. It might be an afternoon’s work to do all the right referrals, but ultimately this wouldn’t be credited. That sort of work was disincentivised.
If you wanted to do the right thing, you would have to take the productivity hit and risk performance management procedures, ultimately with the threat of dismissal.".
21 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ An application for entry clearance is deemed to be made on the date on which payment of the relevant fee is made: Kaur (Entry Clearance – date of application) [2013] UKUT 00381 (IAC)
⦁ For the UK Spouse, Fiancee and Unmarried Partner's applications the sponsor's employment can be permanent, a fixed-term contract or with an agency: Paragraph 5.5.2 of Appendix FM 1.7: Financial Requirement
⦁ Section 94B certification: presence of adult children in the UK (19 April 2017) - this does not include a child aged over 18, as clarified by the UK BA
⦁ If an Entry Clearance application for Settlement (spouse) is refused and then the decision is overturned on appeal, the successful appellant may get the so-called Leave outside of the Rules, which implies not a 5 year route to Settlement but a 10 year route to Settlement.
" Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings"
Recent case-law
R (on the application of RSM and Another) v Secretary of State for the Home Department (unaccompanied minors – Art 17 Dublin Regulation – remedies) [2017] UKUT 00124 (IAC)
(I) The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential.
(II) Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived.
(III) Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State.
(IV) Relevant government policy statements constitute, as a minimum, material considerations to be taken into account in deciding whether to exercise the discretionary power in Article 17. The Lumba principle is also engaged.
(V) The judicial assessment of the efficacy of the Dublin systems and procedures in the host Member State will invariably be fact sensitive and will take into account the overarching aims and objectives of the Dublin Regulation, including the maintenance of inter-Member State solidarity and mutual trust and respect, together with expedition.
(VI) Expedition has special force in the case of unaccompanied children.
(VII) The discretion to judicially determine essentially academic issues in judicial review proceedings will normally be informed by the overriding objective.
26 April 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Extension of the post July 2012 Discretionary Leave is usually done via the FLR(HRO) form
⦁ Extension of a UK Spouse Visa on the FLR(M) form when the UK sponsor is a Seafarer who is out of the UK for more than 183 days ? Still may be possible on the basis of the Appendix FM 1.7:
5.5.4. Where the applicant’s partner is a seafarer resident in the UK but spends most of their time working at sea and qualifies for the HMRC Seafarers Earnings Deduction (which is evidenced, for example, by a letter from their accountant or from HMRC), they will be considered as a person resident in the UK for the purposes of assessing their income from salaried or non-salaried employment. They will not be treated as an overseas sponsor returning to the UK.
5.5.11. Where the applicant’s partner (and/or the applicant if they are in the UK with permission to work) is in salaried or non-salaried employment, this may include work undertaken overseas, subject to the couple meeting the requirement in paragraph E-LTRP.1.10 of Appendix FM that they intend to live together permanently in the UK and subject to the other requirements of Appendix FM-SE being met.
⦁ A person who overstayed their previous grant of leave under para 284 can apply for ILR (application form SETM) when they meet all the requirements. That presumes they were last granted 24 months leave under the Part 8 rules. In other words, the applications for ILR usually do not come under the general grounds for refusal
02 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Appendix FM (UK spouse visa etc applications). Savings account situation when the joint account is held by the sponsor and his mother, for example. The Home Office insists that the account must be in the sponsor’s name, the applicant’s name, or their joint names only. The mother, therefore, went to the bank and removed her name from the joint account, thus enabling the UK sponsor to meet the financial (savings) requirement to sponsor a foreign spouse
⦁ The UK BA is introducing new bail forms and guidance:
The forms are not being sent for formal consultation but for awareness however views are welcome:
- B1 – is the revised bail application form
- B2 – is a new addition and is the application of the person on bail to vary the conditions of bail previously granted by the Tribunal in cases where the Tribunal has not directed that future management of bail in that case should be transferred to the Home Office
- B3 – is another new addition and is the application of the person on bail to vary the conditions of bail previously granted by the Tribunal in cases where the Tribunal has not directed that future management of bail in that case should be transferred to the Home Office
Recent case-law
⦁ Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children: Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 00162 (IAC)
In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000.
The main argument that appears to have been advanced in support of the case against the CPS is that their initial decision to prosecute was in breach of the claimant’s rights under Article 8 ECHR. This is given very short shrift by the Supreme Court, as it appears to have been by the Court of Appeal and the High Court before that, all of whom find that a decision to prosecute is not capable of engaging the right to private and family life.
(i) In cases involving convictions for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, the Secretary of State’s policy, as expressed in paragraph 391(a) of the Immigration Rules, is that the public interest does not require continuation of a deportation order after a period of ten years has elapsed.
(ii) However, paragraph 391(a) allows the Secretary of State to consider on a case by case basis whether a deportation order should be maintained. The mere fact of past convictions is unlikely to be sufficient to maintain an order if the ‘prescribed period’ has elapsed. Strong public policy reasons would be needed to justify continuing an order in such circumstances.
(iii) Paragraph 391(a) will only be engaged in a ‘post-deportation’ case if the person is applying for revocation of the order from outside the UK. Nothing in the strict wording of the rule requires the ten-year period to be spent outside the UK. However, the main purpose of deportation is to exclude a person from the UK. Any breach of the deportation order is likely to be a strong public policy ground for maintaining the order even though a period of ten years has elapsed since it was made.
(iv) In ‘post-deportation’ applications involving sentences of less than four years made before the end of the ten-year period, and ‘post-deportation’ applications involving sentences of four years or more, appropriate weight should be given to the Secretary of State’s policy as expressed in the ‘Conventions exception’ and ‘sweep-up exception’ with reference to paragraphs 398-399A and 390A of the Immigration Rules.
04 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Is it possible to submit a passport application for a child born abroad in the UK (first passport) if father is in the UK but child is abroad? Apparently, yes, on the basis of: https://www.gov.uk/overseas-passports
The documentary evidence is submitted in the UK and you pay a courier charge for it to be sent by HMPO to the child overseas
⦁ Can the Tier 1 (Graduate Entrepreneur) be made from outside of the UK ?
"The maximum time available as a Tier 1 (Graduate entrepreneur) migrant is 2 years in total, not necessarily 2 consecutive periods of leave. An applicant can therefore
have an extension which may be with their original or new endorsing body.".
Which suggests that the application for leave to enter can be made provided all other requirements are met.
⦁ UK BA intended ETA/Digital Permissions
The UK BA potentialy intends to introduce an Electronic Travel Authority (ETA) for non-visa nationals looking to travel to the UK for short periods. This would be similar to the ESTA system used by the US and the ETA system used by Australia. Canada has also introduced a similar system. It will also be similar to the proposed European Travel Information and Authorisation System (ETIAS).
"What are EU agencies and what do they do? Will the UK be able to participate in their activities after Brexit? And what will happen to the two that are based in the UK? This paper looks at the roles and functions of EU agencies, the issues surrounding the two UK-based agencies, and whether there are options for continued UK participation after Brexit."."
When the UK leaves the EU Gibraltar, a British Overseas Territory, will leave too. But could special arrangements be negotiated for Gibraltar? Will Spain cooperate in the negotiations between the EU and the UK or could Gibraltar become a bargaining chip for Spain to push its sovereignty claim? This paper considers Gibraltar's constitutional status and some of the possible impacts of Brexit.".
To ask the Secretary of State for the Home Department, whether procedures have changed as a result of recent successful prosecutions for unlawful immigration detention.
Mr Robert Goodwill:
The cross-system Detention Gatekeeper has now been introduced to scrutinise all proposed detentions independently of an arresting team. Individuals can now only enter immigration detention with the authority of the Detention Gatekeeper, who will ensure that there is no evidence of vulnerability which would be exacerbated by detention, that return will occur within a reasonable timeframe and check that any proposed detention is lawful.
Separately, Case Progression Panels have been introduced to review all cases within immigration detention by a peer-led panel. These panels focus on ensuring that there is progression toward return for all individuals detained, and that detention remains lawful
That this House calls on the Government immediately to grant Zambrano carers the right to remain in the UK; notes the 2012 ECJ judgement in the case Zambrano v Office national de l'emploi provided non-EU nationals with primary caring responsibilities (Zambrano carers) the right to reside in the Member State of which their dependent child or adult is a national; further notes that such rights derived from EU case law will be revocable through primary legislation following the Government's Great Repeal Bill; is concerned that current Zambrano carers or individuals in a similar position in the future may lose their right to remain in the UK; and demands that the Government now makes an immediate and unequivocal guarantee that Zambrano carers can remain in the UK with the same rights which they currently enjoy.
(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of bail. In such a situation, it is the responsibility of the parties (in particular, the respondent) immediately to draw the defect to the attention of the Tribunal, so that it can be corrected.
(2) Paragraph 2 of Schedule 3 to the 1971 Act gives the respondent power to impose restrictions on taking employment etc in respect of persons who are subject to immigration control. It is difficult to see how any condition of bail granted by the First-tier Tribunal could affect this freestanding power.
(3) Licence conditions imposed by the National Probation Service serve aims wider and different from the conditions that may be imposed by the First-tier Tribunal on a grant of bail. Rather than imposing bail conditions “in the same terms as the licence”, which is what the First-tier Tribunal’s Bail Guidance recommends, the better course is for the First-tier Tribunal to state that its conditions of bail are without prejudice to any conditions contained in the licence, and for judges to ensure there is no conflict between bail conditions and licence conditions.
(I) The settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause” in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol;
(II) Where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional Protocol.
1. Schedule 1, paragraph 1 (d) of the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) amended the definition of EEA national to exclude those who are also British Citizens, but that changewas subject to the transitional provisions set out in Schedule 3 of those regulations. Similar provisions were added to the Immigration (European Economic Area) Regulations 2016 by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1) which amended schedule 6 of the 2016 Regulations by adding a new paragraph 9.
2. Although the reg 1 (2) of the 2016 regulations revoked the Immigration (European Economic Area) Regulations 2006, they are preserved for the purposes of appeals, as are the rights of appeal by an amendment to Schedule 4 of the new EEA Regulations made by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1).
3. While the representatives regulated by OISC and members of the Bar of Northern Ireland are both entitled under section 84 of the Immigration and Asylum Act 1999 to provide immigration services, section 11 of the Code of Conduct of the Bar of Northern Ireland precludes barristers from taking instructions from persons other than lawyers who are governed by a professional body (which does not include OISC).
⦁ Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 20 February 2017 – Secretary of State for the Home Department v Rozanne Banger (Case C-89/17) (2 May 2017)
Questions referred
Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC1 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
08 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
- The EEA(PR) form is now mandatory
- If you are applying as an employed person, you do not need to provide corresponding proof of residence for the same period
- If you are applying in another capacity (for example, as a self-employed person) you only need one piece of residence evidence for every 12 month period instead of the previous two.
- You are now not required to provide proof of residence if your 5 year qualifying period ends less than two years before your application for a permanent residence document
- You no longer need to list absences less than 6 months in length or absences prior to the 5 year qualifying period
- If you have P60s for each year, this will be sufficient on its own to evidence employment (employment caregory)
- If you do not have P60s and intend to rely on payslips the guidance clears up how many payslips you need to provide, stating that 3 payslips for each year would be sufficient, with rules about which payslips and intervals between them (employment)
- If you were not registered under Worker Registration Scheme (WRS), you can not count any periods of residence prior to 30 April 2011. However, if you were not registered or not exempt you may face questions of good character under this requirement when you apply for British citizenship
- Self-employed applications needs to provide many more other documents
⦁ Retained right of residence applications (application EEA(FM)) - when the EEA sponsor has left the UK
The new EEA (FM) at section 4.2 offer the option of choosing “I have retained my rights because the EEA national has died or left the UK, OR my marriage has ended in divorce”
One can wonder, where does the “has left the UK” come in to force in such an application? The answer is that the direct descendant under the Regulation 10(3)(a)(ii), where they are in education, and that person’s parent under 10(4), can only benefit from this provision
⦁ PBS dependents & absences in excess of 6 months vs Settlement applications
It may be possible for a PBS (Tier 1 and 2) Migrant partner to apply for Settlement (ILR) at the same time as the main PBS applicant if that PBS partner has spent more than 6 months in each of the previous 5 years outside of the UK. The PBS partner must have continuous leave under para 319E(d), etc., but there are no restrictions on periods of absences.
⦁ Is it possible to get a Permanent Residence for an EEA national without economic activity etc ?
The new EEA Regulation 17(3) implies so:
Reg 17(3):
(3) The Secretary of State must issue a registration certificate to an EEA national who is the family member of a qualified person or of an EEA national with a right of permanent residence under regulation 15 immediately on application and production of—
(a)a valid national identity card or passport issued by an EEA State; and
(b)proof that the applicant is such a family member
It means that an EEA spouse of an economically active EEA citizen may be issued with Permanent Residence on the bases of just being a family member of a qualified EEA citizen
10 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Applying as the Family Member of a Tier 1, 2 or 5 migrant in the UK
33.If you are the family member of a Tier 1, 2, or 5 migrant, you cannot apply in the UK if you:
- were last granted entry clearance or leave as a visitor, including where they entered the United Kingdom from the Republic of Ireland to stay under the terms of articles 3A and 4 of the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended by the Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014) on the basis of a visa issued by the Republic of Ireland authorities endorsed with the letters “BIVS” for the purpose of travelling and staying in the Republic for a period of 90 days or fewer; or
- were last granted entry clearance or leave as a short-term student or a short-term student (child)
- were last granted entry clearance or leave as a parent of a Tier 4 (child) student unless the Relevant Points Based System Migrant has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii); or
- are on temporary admission or temporary release
⦁ Appendix FM vs Academic Grants
The appendix FM states that:
Income from a maintenance grant or stipend (not a loan) associated with undergraduate study or postgraduate study or research received by the applicant’s partner or the applicant can be counted towards the financial requirement. The person must be currently in receipt of the grant or stipend or will be within 3 months of the date of application, and the grant or stipend must be payable for a period of at least 12 months, or for at least one full academic year, from the date of application or from the date on which payment of the grant or stipend will commence.
The interpretation from the above is that the sponsor must to be in receipt of the grant for 12 months from the date of the entry clearance application regardless of how long the sponsor has been receiving the grant for.
⦁ Waiting time in the immigration tribunal now 84 weeks (1.6 years !) for some appeals
The latest tribunal statistics, published in March 2017, show that the average waiting time for appeals to be heard in the immigration tribunal is now 48 weeks. This is the time between the appeal being lodged and the appeal being decided, it seems.
The breakdown for different types of appeal reveals major disparities between different types of appeal, though, with waiting times for entry clearance appeals — for example for spouses or children applying to join family members in the UK — as high as 84 weeks. That is over a year and a half. With 51% of all entry clearance appeals being allowed in Q3 2016, that is a very considerable impact on a lot people wrongly kept apart by poor quality immigration decisions.
(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.
(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.
(iii) Every decision upon an application to reinstate must give effect to the overriding objective.
(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.
The directions in these and hundreds of other cases, many of which will have been handled by the same small firms of solicitors, were that cases would automatically be struck out if the claimant did not serve within 7 days amended grounds for judicial review distinguishing the facts of an individual case from complex Court of Appeal and Upper Tribunal authorities.
Just 7 days to read, understand, get money from client and draft amended grounds or instruct Counsel. Automatic strike out. Hundreds of cases.
On the face of it, the giving of these directions seems like unbelievably arbitrary behaviour by the tribunal which was obviously contrary to the overriding objective. The directions seem to be deliberately designed to lead to strike out in as many cases as possible. Why 7 days? What was the hurry? Why not 14 days or 28 days? It is impossible to imagine the Secretary of State for the Home Department being treated in similar manner. Perhaps there is more to it, but that is certainly how it looks to an external observer.
This guidance has been completely re-formatted and deals with the exclusion of both non-Economic European Area (non-EEA) nationals and European Economic Area (EEA) nationals and their family members. It replaces Exclusion decisions and exclusion orders guidance which has been archived. It includes:
- advice on the Authority to Carry Scheme 2015
- explanation of unacceptable behaviour
- updated guidance on rights of appeal
- advice on notification of decisions
- advice on excluding EEA nationals or their family members under the Immigration (European Economic Area) Regulations 2016
- advice on deprivation of citizenship in exclusion cases
In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process.
In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending the outcome of another, lead case.
12 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Non-working EEA family members of a working EEA national - ability for those non-working EEA family members to still apply for Permanent Residence in the UK
If the main EEA applicant qualifies as a worker, then his/her EEA spouse/ civil partner (though not exercising treaty rights themselves) may qualify for PR “in line” with the main Applicant.Hence would not need CSI. This is applying Immigration (EEA) Regs 2006 para 15.(1) (b). This is also supported by HO Guidance 21/4/17 on Free Movement Rights: direct family members of EEA nationals Permanent rights of residence scenario 4.
(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.
(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.
(iii) Every decision upon an application to reinstate must give effect to the overriding objective.
(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.
15 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Her Majesty's Courts and Tribunals pilots test virtual hearings this week
The proposed first round of the Virtual Hearings research is on Weds 17 May at Surherland Labs, 52 Shorts Gardens, WC2H 9AN (Covent Garden tube).
The aim is to hold 3-4 research sessions, in the afternoon/early evening (exact timings to be finalised). Each session will be run as a virtual meeting so that we IAC can start exploring the technology from the perspective of IAC participants. The aim is to have three participants in each research session, one of whom will be an IAC advocate (the others being judge and presenting officer).
(i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981.
(ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good.
(iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. The deception referred to must have motivated the grant of (in the present case) citizenship, and therefore necessarily preceded that grant.
(iv) The separation of sub-ss (2) and (3) makes it clear that obtaining naturalisation by one of the means of deception set out in sub-s (3) cannot of itself amount to a reason enabling the Secretary of State to be satisfied that deprivation is conducive to the public good for the purposes of sub-s (2); but, in an appropriate case, there would appear to be no reason why the Secretary of State should not be satisfied that the conditions under both subsections exist.
(v) The restrictions on the rights of appeal imposed by s 84 of the 2002 Act do not apply to appeals against a s 40 decision: therefore, any proper ground of appeal is available to an applicant. The grounds of appeal are, however, limited by the formulation of s 40 and must be directed to whether the Secretary of State’s decision was in fact empowered by that section. There is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State’s discretion.
(i) The commonly used forms of consent order do not expose either party to possible contempt action or other sanction.
(ii) The remedy for non – compliance with a consent order will normally be the initiation of a fresh judicial review claim.
17 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
The judgment in OO (Nigeria), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 338 is one of a series of cases challenging the lawfulness of the certification regime under s.94B Nationality Immigration Asylum Act 2002 (as amended).
This case is notable for its treatment of family life issues in respect of a (potentially) temporary absence from the United Kingdom whilst an appeal is ongoing, and a reminder that specific evidence documenting the best interests of any children involved in a deportation case will be crucially important.
The Home Office has relied on outdated guidance to determine asylum applications from Albanian nationals, the Court of Appeal has held. The judgment in LC (Albania) will have far-reaching effects for those people denied protection under bad law over a number of years.
The judgment also reiterates the approach to be taken when considering the future behaviour of asylum applicants if they return to their home country.
R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) concerns a successful claim for damages by an individual unlawfully detained under immigration powers. It is notable for its restatement of the importance of the third Hardial Singh principle, and as a further example of the Secretary of State’s ‘enduring casualness’ [23] when dealing with cases involving immigration detention.
The Home Office proposed to remove the father of a family and three children to India and the wife and mother to Pakistan, thus separating the family. The family argued that they would be permanently separated because the immigration laws of India would not allow entry for the mother. The Home Office argued to the contrary, but the evidence on which the Home Office arguments was based was found to be, um, a bit flawed:
"It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid of foundation. The expectation on which the Secretary of State’s decision was based is misconceived".
The official headnote:
"The content of any material foreign law is a question of fact normally determined on the basis of expert evidence".
It does rather feel as if the burden of proof may have been reversed here on the foreign laws question, but a good result for the long suffering and unrepresented family nonetheless.
19 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Court of Justice of the EU (CJEU) on Zambrano children (16 May 2017)
Last week the CJEU handed down a judgment on Zambrano children and whether their third country national parent (primary carers) can be deported. The case was on a reference from the Netherlands. It is rather long and quite complex so difficult to summarise in a few lines. The brief is as follows below.
Everything depends on whether the EU citizen child is genuinely dependent on the third country national parent. If this is the case then the best interest of the child obligation kicks in and the parent has a right of residence (and to social benefits). Even if there is an EU citizen parent who might be able to care for the child, the key is still and always the dependency relationship of the child with the third country national parent.
The CJEU provides some guidance on the factors to take into account to make the assessment (and yes, there is a light burden of proof on the parent to provide the evidence):
In order to assess that risk, the Court instructs the authorities to consider:
⦁ which parent is the primary carer of the child;
⦁ is there in fact a relationship of dependency between the child and the third country national parent;
⦁ the right to respect for family life (Article 7 EU Charter of Fundamental Rights);
⦁ the best interests of the child (Article 24(2) EU Charter of Fundamental rights.
The fact that the other, EU citizen parent is actually able and willing to assume the role of sole responsibility for the primary day-to-day care of the child is only a relevant factor. It is not a sufficient ground to conclude that the dependency relationship of the child and the third country national is not such as to compel the child to leave the EU if that parent was expelled. Specific circumstances must be taken into account:
⦁ the best interests of the child;
⦁ the child’s age;
⦁ the child’s physical and emotional development;
⦁ the extent of the child’s emotional ties with the Union citizen parent and the third country national parent;
⦁ the risks which separation from the third country national parent might entail for the child’s equilibrium (para 71).
23 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Tier 2 (General) ILR v £35K earning shortly: salary increase shortly before the ILR date ?
It is worth noting that the paragraph 245HF of the current Immigration Rules doe not say for how long the Tier 2 migrant should be paid at least £35,000 and the Paragraph 245HH of the Rules requires only the most recent pay slip. Therefore it seams there is no minimum length of period the applicant should have been getting the minimum basic salary of £35,000 before an application for ILR is made. The Rules implies that someone who is getting £25,000 per annum but 4 months before he makes an application for ILR his salary is increased to £35,000, he may then be considered to satisfy the minimum threshold of £35,000. This is backed up by the (subject to the specified evidence requirements in the Paragraph 245HH of the Rules) need for the employer to certify in writing that ‘that this salary will be paid for the foreseeable future’, so some scope for refusal under the general grounds if the HO does not believe the certification. All in all, one must understand that the Home Office can get suspicious on the steep rise in the salary, therefore the speed salary increase shortly before the ILR application is unadvised yet technically possible.
⦁ EEA applications when the EEA sponsor is refusing to provide documents (Retained Right of Residence (RRRP, Permanent Residence (PR))
So, is it all over for the non-EEA national when his/her EEA national sponsor is refusing to cooperate ? Not really. The only way to win for that non-EEA national is to make an application for RRR/PR (NB depending ob the circumstances, of course) and request the Secretary of State to obtain information from the HMRC, PWD etc in relation to the EEA national. The Secretary of State is not obliged to do so, and if the application fails, then during the appeal before the Tribunal seek directions from the Tribunal against the Secretary of State using the Rule 5 and the Rule 15 applications (The Tribunal Procedure Rules 2014) to obtain the information in connection with the EEA nation from other government departments (see paragraph 40 of Amos v Secretary of State for the Home Department [2011] EWCA Civ 55).
⦁ Is the TB test required for fiance(e) applications ?
The TB test is required under the paragraph A39 of the Immigration Rules:
"A39. Any person making an application for entry clearance to come to the UK for more than six months or as a fiancé(e) or proposed civil partner applying for leave to enter under Section EC-P:Entry clearance as a partner under Appendix FM, having been present in a country listed in Appendix T for more than six months immediately prior to their application, must present, at the time of application, a valid medical certificate issued by a medical practitioner approved by the Secretary of State for these purposes, as listed on the Gov.uk website, confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in the applicant.".
⦁ UK BA's random requests for the so-called Statement of Additional Grounds (RED0003) questionnaires
It seems that the UK BA have started routinely sending out additional Statement of Additional Grounds (RED0003) questionnaires, following the submission of the application for Settlement etc, despite the applications being approved at a later stage.
⦁ What is the migrant's rights if the Settlement application (SET(DV)) on the basis of Domestic Violence is refused and the migrant has a new partner at the same time ?
The DV application will not give rise to a right of appeal. The remedy is Admin Review. If the AR is not pursued, or refused, the person will be able to make another application (so long as they have not overstayed by more than 14 days). It is understood that the UK BA might curtail the person’s spouse leave on refusing the DV application, so that the person will become an overstayer on receiving the decision. One should note that the Section 3C leave will not kick in in these circumstances. They will need to make an application in line with para 39E (which is vert poorly drafted, by the way). It appears that the applicant will have 14 days to lodge an AR, and then 14 days after the AR has been refused to make another application.
Recent case-law
⦁ Tribunal rules a Big Issue seller has no right of residence in EU law: http://www.bailii.org/uk/cases/UKUT/AAC/2017/155.html
The appellant was earning a steady £50 per week working a 40 hour week and the First-tier dismissed the appeal on the basis that the work was not “genuine and effective”.
The case of GE v. SSWP (ESA) [2017] UKUT 145 (ACC) sets out how the Immigration (European Economic Area) Regulations 2006 (since replaced with the 2016 version), are in some areas, more generous than EU law itself by concluding that an initial right of residence or status as a job-seeker could count towards permanent residence for an EEA national.
In September 2015, the Upper Tribunal decided the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). The decision states that if an appeal is brought in the First-Tier Tribunal against an EEA decision then the only relevant issues that can be raised during the appeal are those directly connected to that EEA decision. Human rights issues, the Upper Tribunal ruled, were not justifiable.
Interesting case on deprivation of citizenship, not least as the Home Office spectacularly messed up by refusing on an unjustifiable grounds when there was a justifiable one staring them in the face.
⦁ Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 20 February 2017 – Secretary of State for the Home Department v Rozanne Banger (Case C-89/17) (2 May 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-125
Questions referred
Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC1 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
25 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ The long established case of DR Morocco is no longer relevant as the Tribunal can consider post-decision facts even in an entry clearance appeal
⦁ The form SET(O) can generally be used for those Discretionary Leave (DL) Settlement cases where the applicant was not previously refused asylum. The form FLR(DL) is generally to be used in both further leave and Settlement cases where the applicant was previously refused asylum
26 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ The Court of Appeal has dismissed the BritCits challenge to the adult dependent relative rule. The challenge to the general rule was dismissed on all three grounds: http://www.bailii.org/ew/cases/EWCA/Civ/2017/368.html
In response to BritCits submissions on the treatment of care being considered adequate regardless of emotional ties and the extent to which care provided by the family would improve the elderly relative's quality of life, the Court indicated that evidence of psychological and emotional requirements are capable of being considered in the assessment:
59. Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be "reasonably" provided and to "the required level" in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.
31 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Emails to UKVI outside the UK will be charged from the 1st June 2017
From 1 June, all customer enquiries will be handled by a new commercial partner Sitel UK.
The new contract will see a number of changes for customers.
These changes help the government reduce costs and ensure those who benefit directly from the UK immigration system make an appropriate contribution.
The main changes for customers applying from outside the UK are:
- all phone numbers and opening hours will change
- the number of languages offered is reducing to 8 including English
- customers who contact UK Visas and Immigration by email will be charged £5.48
You will need to pay using a credit or debit card for contacting us by email. The charge includes the first email enquiry you send and any follow-up emails to and from the contact centre relating to the same enquiry.
The way you pay to use the telephone service will remain the same using a credit or debit card.
If you do not have access to a credit or debit card, you may choose to use a trusted 3rd party such as an agent or sponsor.
There are no changes to services if you are contacting us from inside the UK.
The case of Stoly Jankovic recently attracted a lot of press attention and a great deal of sympathy. He had apparently been living and working in the UK since 1999, for a period of 26 years. How can it be right that he be detained for removal after all that time? Well, the rules on acquiring lawful status after long residence are very tightly drawn and it sounds as if he has fallen foul of them.
07 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ EEA(PR) applications - can the electronic eP60s be provided by the applicants ?
The UK BA's answer is "yes": The EP60s will be acceptable as long as the full detail of the employer’s name and address is shown.
This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members.
Advocate General Opinions
The Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. The Advocate-General provides an initial opinion before the judges deliberate and give their own verdict. As the Advocate-General opinion is advisory and do not bind the court, the judges are not obliged to follow them, but they are nonetheless very influential and are followed in most cases.
⦁ Indefinite detention does not breach ECHR says European Court of Human Rights : http://hudoc.echr.coe.int/eng#{%22appno%22:[%2233341/13%22]}
Unlike most other European countries, there is no time limit on immigration detention in the UK. In addition, the law does not provide for an automatic judicial review of the lawfulness of detention. Instead, detainees must proactively challenge the lawfulness of their detention. In an admissibility decision of 18 May 2017, the European Court of Human Rights found that this system does not violate the European Convention of Human Rights, an in particular article 5 on the right to liberty.
Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law?
Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017).
The EU does not want asylum seekers to ‘shop around’ its Member States. To this end, various Regulations exist to prevent someone who has already claimed asylum in one Member State from subsequently doing so in another.
But what if an applicant has claimed before, the result of which was being granted not refugee status, but subsidiary protection (‘humanitarian protection’ in the UK)? The CJEU has replied to a reference from the German administrative court to deliver its answer.
08 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org, the UK Professional Immigration Assistance Epicentre
⦁ Is it a requirement for a non EEA national to hold a residence card before applying for permanent residency (on the basis of a 2 year durable relationship) ?
Apparently yes, as only direct family members (usually spouses and children under 21 etc) have automatic entitlement into EU law. For extended family members (like unmarried partners etc), they are at the discretion of the UK BA.
⦁ Is it possible to make an application under the EEA Regulations and also a private/family life application under the Immigration Rules for the same applicant before the EEA application is decided ?
Apparently yes, as an EEA application is not an application for leave to remain
⦁ Get a faster reply to your visa application, if your postal application is long time outstanding (or you you now regret that you did not apply in person initially):https://www.gov.uk/faster-reply-visa-application
You may be able to get a decision on your visa within 5 working days if you’ve sent your application by post and the payment has cleared.
If you’re applying for limited leave to remain (using Tier 4 or FLR forms for example) then you won’t be able to get a faster reply using this service.
You can also use this service to apply for a biometric residence permit (BRP) if you’re settled in the UK with no time limit.
Who can apply
You can only use this service if you made your application from within the UK and used one of the following forms:
SET (AF)
SET (F)
SET (LR)
SET (M)
SET (O) - apart from exceptions
SET(O) exceptions
If you use the SET(O) form you won’t get a faster reply if you’re:
a Tier 1 (Investor)
a Tier 1 (Graduate Entrepreneur)
a Tier 1 (Entrepreneur)
a self-employed lawyer
a seaman
a Gurkha
a Turkish business person
an elderly dependant
someone whose case isn’t covered by immigration rules
If you’re applying for discretionary leave to remain or humanitarian protection you can only apply through the SET(O) form if you’re:
under the transitional arrangements to extend your discretionary leave after 3 years
applying to settle in the UK after 6 years discretionary leave
Fees
You must pay £490 per person, in addition to the application fee you’ve already paid.
⦁ Electronic payslips & the UK BA opinion
Appendix A of the Sponsor Guidance states that payslips must be provided for employees already employed who need to be sponsored.
Most payslips are now issued electronically. According to the UK BA, the electronic printouts of payslip are perfectly acceptable in line with the requirements of Appendix A
13 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
⦁ Can the EEA's national passport be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
Theoretically - yes, in line with the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which states that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national.
Yet practically NO, as it appears that the UK BA is unaware (?) of the case of Barnet and keeps refusing such PR applications...
⦁ Visitor and the Section 3C benefits ?
May the Section 3C benefit a visitor who then makes a human rights application before their visa expires? Apparently, yes. The Section 3C may not discriminate between the type of leave as long as the leave was extant at the time of making the application.
⦁ What documents a person born in the UK before 1983 to British parents needs to produce to get a passport if that person started living outside of the UK shortly after his birth ?
⦁ Can a migrant ask for a refund of the "unused" part of the UK BA IHS fees paid such a migrant then subsequently obtains Settlement (ILR) or switches into another category where another UK BA IHS fee has to paid ?
14 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
⦁ Can the EEA's national passpprt be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
It used to be possible in the recent past in reliance to the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which statd that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national. Then the Immigration (EEA) Regulations 2016 came into force and under the Regulation 21(5) when one of the applicants in a non-EEA national the EEA national's valid ID msut still be provided:
"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."
The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.
The agriculture industry warns of post-Brexit labour shortages. This Commons Library briefing looks at the sector's reliance on migrant labour, the Seasonal Agricultural Workers Scheme and the implications of the UK's exit from the EU.
This document lists the number of restricted certificates allocated to employer sponsors by month, for foreign workers in Tier 2 (General).
It seems that there might be an error in the latest version of the Tiers 2 and 5 sponsor guidance (version 04/17). Para.6.26 of the updated guidance provides as follows:
"You must always have a minimum of one level 1 user who is a settled worker. The only exception to this rule is if you are a diplomatic mission or international organisation licensed under the Tier 5 (Temporary Worker) International Agreement sub category."
The UK BA has been duly requested to clarify this point.
Recent case-law
The UK BA's principle of "remove first - appeal later" was found to be unlawful - the case of the R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, 14 June 2017: https://www.supremecourt.uk/cases/uksc-2016-0009.html
The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).
Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).
Below is a brief summary of the judgement:
Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.
Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.
The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.
It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.
The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.
Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.
14 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
⦁ Can the EEA's national passpprt be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
It used to be possible in the recent past in reliance to the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which statd that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national. Then the Immigration (EEA) Regulations 2016 came into force and under the Regulation 21(5) when one of the applicants in a non-EEA national the EEA national's valid ID msut still be provided:
"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."
The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.
The agriculture industry warns of post-Brexit labour shortages. This Commons Library briefing looks at the sector's reliance on migrant labour, the Seasonal Agricultural Workers Scheme and the implications of the UK's exit from the EU.
This document lists the number of restricted certificates allocated to employer sponsors by month, for foreign workers in Tier 2 (General).
It seems that there might be an error in the latest version of the Tiers 2 and 5 sponsor guidance (version 04/17). Para.6.26 of the updated guidance provides as follows:
"You must always have a minimum of one level 1 user who is a settled worker. The only exception to this rule is if you are a diplomatic mission or international organisation licensed under the Tier 5 (Temporary Worker) International Agreement sub category."
The UK BA has been duly requested to clarify this point.
Recent case-law
The UK BA's principle of "remove first - appeal later" was found to be unlawful - the case of the R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, 14 June 2017: https://www.supremecourt.uk/cases/uksc-2016-0009.html
The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).
Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).
Below is a brief summary of the judgement:
Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.
Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.
The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.
It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.
The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.
Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.
19 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
21 May 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
Some parts of the Queen's speech may be of interest to migrants, as follows:
Some areas that may be of particular interest to ILPA members are described below, including the proposed Immigration Bill and non-legislative measures on migration.
Brexit
It is proposed that there will be eight Bills to deliver Brexit: a Repeal Bill and separate Bills on immigration, trade, customs, agriculture, fisheries, nuclear safeguards and international sanctions.
The Government states that the Repeal Bill will
⦁ repeal the European Communities Act 1972 and convert EU law into UK law as the UK leaves the EU;
⦁ create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once the UK has left the EU. It will also allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Article 50;
⦁ replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision-making powers immediately after exit. This will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.
It proposes that an Immigration Bill will be brought forward:
⦁ To allow the Government to repeal EU law on immigration, primarily free movement, that will be saved and converted into UK law by the Repeal Bill.
⦁ To allow the Government to make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.
The Government states that the Customs Bill will ensure:
⦁ that the UK has a standalone UK customs regime on exit;
⦁ flexibility to accommodate future trade agreements with the EU and others;
⦁ that changes can be made to the UK’s VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit.
A separate Trade Bill would put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union.
Courts Bill
The Government proposes a Bill to reform the courts and tribunal system, making better use of technology and modernising working practices. It will include measures to:
⦁ end the direct cross examination of domestic violence victims by their alleged perpetrators in the family courts and extending the use of virtual hearings to victims to participate in trials without meeting their alleged assailant face-to-face.
⦁ enable those charged with some less serious criminal offences to opt to plead guilty, accept a conviction and pay a statutory fixed penalty online and free up court time for more serious cases. Defendants would need to actively opt into this process and could still choose to have their case heard in court instead. The reforms will also introduce digital services which will allow businesses to pursue their cases quickly, enabling them to recover debts more easily.
⦁ provide a better working environment for judges by allowing more leadership positions in the judiciary to be offered on a fixed term, and enabling judges to be deployed more flexibly to improve opportunities for career progression.
The Government expects to make steady state savings to the taxpayer of £226 million once the reforms to make better use of technology and modernising working practices are implemented.
Data Protection Bill
The Government proposes to bring forward a new Data Protection Bill to replace the Data Protection 1998. As data protection is a reserved matter, this would apply throughout the UK. The Bill would include measures to:
⦁ To establish a new data protection regime for non-law enforcement data processing, replacing the Data Protection Act 1998. The new rules strengthen rights and empower individuals to have more control over their personal data, including a right to be forgotten when individuals no longer want their data to be processed, provided that there are no legitimate grounds for retaining it.
⦁ To modernise and update the regime for data processing by law enforcement agencies. The regime will cover both domestic processing and cross-border transfers of personal data.
⦁ To update the powers and sanctions available to the Information Commissioner.
Domestic Violence and Abuse Bill
⦁ To establish a Domestic Violence and Abuse Commissioner, to stand up for victims and survivors, raise public awareness, monitor the response of statutory agencies and local authorities and hold the justice system to account in tackling domestic abuse.
⦁ To define domestic abuse in law to underpin all other measures in the Bill.
⦁ To create a consolidated new domestic abuse civil prevention and protection order regime.
⦁ To ensure that if abusive behaviour involves a child, then the court can hand down a sentence that reflects the devastating life-long impact that abuse can have on the child.
Non-legislative measures (including on migration)
The Government has also set out policy approaches and measures that do not involve primary legislation. On migration, it states:
⦁ The UK is committed to improving the international response to mass movements of refugees and migrants. We want to embed the principle of ‘first safe country’ to encourage migrants to seek protection in the first safe country they can reach and reduce dangerous secondary movements, which threaten migrants’ lives and open them to exploitation.
⦁ We must strengthen international adherence to legal frameworks that distinguish between refugees and economic migrants, so we can provide proper protection for refugees and reap the economic benefits controlled migration can bring while discouraging abuse of the immigration system. All states should maintain the right to control their borders and accept returns of their nationals when they have no right to remain elsewhere.
Other non-legislative measures proposed in the Queen’s speech include:
⦁ a review of counter-terrorism legislation;
⦁ the establishment of a statutory Commission for Countering Extremism;
⦁ a public inquiry into the Grenfell Disaster;
⦁ measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests;
⦁ a review of mental health legislation with a view to future reform and changes in implementation, alongside efforts to make mental health provision a priority for the NHS.
Next steps
The Government’s plans will be debated by both the House of Commons and the House of Lords over the coming days, looking at different subject areas. MPs can table amendments to the speech and the debate concludes with votes on these amendments next week. The Queen’s Speech is voted on by the Commons but rarely in the Lords. As the Government does not have a majority in the House of Commons, it remains to be seen whether the legislative programme will be agreed by parliament as proposed.
23 June 2016 - UK & EEA Immigration Law News and Updates from the Legal Centre, www.legalcentre.org from the family run top category UK & EEA Immigration Law practice who can help
⦁ Can a refugee make a Family Reunion Entry Clearance application without a passport ?
Apparently, he/she may, as it is fairly common for those applying under the Family Reunion Route to not have a passport. The applicant needs to request in the his/her cover letter that the Entry Clearance visa be issued on the so-called Uniform Format Form (UFF) as the applicant does not have a passport.
Задержки по заявлениям невест, жен, мужей британских граждан/лиц с ILR (ПМЖ)
Обратите внимание, что UK BA начал стандартно задерживать рассмотрение всех заявлений на ПМЖ по категории «невеста, жена, муж» британского гражданина/лица с ILR (ПМЖ), если один из заявителей – ребенок. Это происходит потому, что UK BA проиграли судебное дело (“MM”) и теперь должны изменить соответствующие Правила.
На данный момент я столкнулся с задержками в рассмотрении заявления по категории «виза жены британца» уже в 15 недель.
Сколько будут продолжаться задержки в таких рассмотрениях – сказать трудно. К сожалению, даже если заявители (например, мама и ребенок) подадут по системе т.н. ускоренного рассмотрения заявления на ПМЖ за 14 дней, это так же не гарантирует быстрое рассмотрение заявления.
26 June 2016 - Useful UK & EEA Immigration News from the Legal Centre, www.legalcentre.org Ph: 0330 001 0342
⦁ Importance of completing Section 120 on lodging the appeal
Often the appellants fail to complete the Section 120 while lodging the appeal. This Section 120 is a very important piece of document and must be well think of, as it allows to bring forward (the last stop, so to speak) any remaining or new facts that the appellant wishes to rely upon. The Secretary of State for the Home Department (SSHD) is oblidged to consider the Section 120 at the point of lodging the appeal by the Appellant. Then, if the appellant fails to complete the Section 120 and later attempts to put forward any other new arguments, information ect, the SSHD is unusally not in a position to consider such information/documents.
⦁ Interesting and possible useful decision by the SIJ Ockelton that the child who is not able to get passport form his parents national country is eligible for British passport as stateless. That is, the children from India, as apparently the Indian High Commission refuses to give passport to children of overstayers or who do not have leave to remain in the UK: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1365.html
⦁ Do Irish citizens need to apply for Permanent Residence before they can apply to become British citizens ?
Apparently not, on the basis of Schedule 1, 2A(d) of the BNA 1981, meaning they just have to meet the other requirements of residence and good character etc.
The Immigration Rule 15 states:
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.
⦁ Tier 1 (Entrepreneur) applications for Settlement - the applicants may not need to to provide company accounts to prove investments
As per the UK BA's reply:
Q: Could you confirm that an applicant applying for settlement under the 5 years route Tier 1 (Entrepreneur) does not require to provide company accounts to prove investment as this was provided in the extension application. Appendix A attributes ?
Therefore, the only specified documents in relation to the business would be the employees’ documents and evidence that he remains a director of a business.
UK BA: This is correct. If this information was already provided during the application for last grant of leave it should not be required again. This is with the usual caveat that we cannot pre-assess any part of an application.
The Government has published its offer for EU citizens in the UK and UK nationals in the EU on their rights and status after the UK leaves the EU. Its summary proposals are below and the full policy paper is attached at the above link.
Summary proposals
1) In the Article 50 negotiations for the United Kingdom (UK) leaving the European Union (EU), our first priority is to reach agreement on the post-exit position of EU citizens1 now living in the UK and of UK nationals 2 living in other EU countries. We will put those citizens first, and do all we can to provide reassurance to the EU citizens who have made the UK their home, and likewise for UK nationals who have done the same in countries across the EU.
2) EU citizens are valued members of their communities here, and we know that UK nationals abroad are viewed in the same way by their host countries.
3) The UK is one of the most tolerant and welcoming places in the world and will remain that way. EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation. The choice made in the Referendum was about our arrangements going forward, not about unravelling previous commitments.
4) Over one million UK nationals have moved to other countries in the EU, and many have built their lives there. Their ability to stay, and for life to continue much as it does now, depends on the agreement that is reached between the UK and the EU.
5) Our proposals as set out below are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each others’ countries rooted in the Ireland Act 1949. These arrangements reflect the long-standing social and economic ties between the UK and Ireland and pre-date both countries’ membership of the EU. As such, we want to protect the Common Travel Area arrangements, and Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. We have also been clear that our exit will in no way impact on the terms of the Belfast Agreement. We will continue to uphold in that context the rights of the people of Northern Ireland to be able to identify as British or Irish, or both, and to hold citizenship accordingly.
6) The Government undertakes to treat EU citizens in the UK according to the principles below, in the expectation that the EU will offer reciprocal treatment for UK nationals resident in its member states:
⦁ until the UK’s exit, while the UK remains a member of the EU, EU citizens resident here will continue to enjoy the rights they have under EU Treaties. We will comply in full with our legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights;
⦁ after we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;
⦁ these rights will apply to all EU citizens equally and we will not treat citizens of one member state differently to those of another;
⦁ qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;
⦁ the application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;
⦁ all qualifying EU citizens will be given adequate time to apply for their new residence status after our exit. There will be no cliff-edge at the point of the UK’s withdrawal from the EU;
⦁ we guarantee that qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship;
⦁ to qualify, the EU citizen must have been resident in the UK before a specified date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident;
⦁ those EU citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status;
⦁ those EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status;
⦁ family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after our exit), irrespective of the specified date. Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;
⦁ the ‘specified date’ will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal; and
⦁ we will apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.
7) In relation to benefits, pensions, healthcare, economic and other rights, in the expectation that these rights will be reciprocated by EU member states, the Government intends that:
⦁ EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law;
⦁ EU citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/the self-employed and limited access for those not working). If these individuals go on to acquire settled status, they will then be able to access benefits on the same terms as comparable UK residents;
⦁ existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit;
⦁ the UK will continue to export and uprate the UK State Pension within the EU;
⦁ the UK will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, even where entitlement to these rights may be exercised after exit;
⦁ the UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date;
⦁ the UK will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU;
⦁ the UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK⦁ 3. Such persons will also be eligible to apply for maintenance support on the same basis they do now;
⦁ to help provide certainty for EU students starting courses as we implement the UK’s exit (including those who are not currently living in the UK), we have already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. We will also ensure that these students have a parallel right to remain in the UK to complete their course; and
⦁ the UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).
8) The reciprocal agreement on citizens’ rights will apply to the entire United Kingdom, covering Scotland, Wales, Northern Ireland and all parts of England, and Gibraltar. Decisions that are currently made by the devolved administrations and the Government of Gibraltar will continue to be made by them.
9) Obtaining documentation showing their settled status will enable EU citizens resident here to carry on living here lawfully. Moreover it will help them to demonstrate to employers and other service providers their ongoing rights to be in the UK and to enjoy entitlements to benefits and public services. It will demonstrate (to employers, for example) that the holder continues to enjoy these rights, irrespective of any different migration controls the Government may introduce with regard to newly arriving EU citizens following the UK’s departure from the EU.
10) There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for their new British settled status before our exit. However, we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.
11) We will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.
12) After the UK leaves the EU, free movement will end but migration between the UK and the EU will continue. We will continue to welcome the contribution EU citizens bring to our economy and society; the UK will remain a hub for international talent. The Government is carefully considering a range of options as to how EU migration will work for new arrivals post-exit and will publish proposals as soon as possible, allowing businesses and individuals enough time to plan and prepare.
⦁ Delays in returning original IDs by the UK BA
We have noted that beginning May 2017 the UK BA started systematically failing to return the original IDs when the on-line ROD (Return of Documents) form is used within the advertised target 10 days.
⦁ Not good enough - the Secretary of State criticized by Court of Appeal for “confused” and “messy” legal analysis in deportation case
The Home Office has been criticized by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was concerned; her appeal was accordingly dismissed.
⦁ Asylum Policy Instruction - Settlement Protection - No longer "automatic" Settlement for refugees...
"All those who apply for Settlement protection (=ILR) after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for Settlement".
The policy means Settlement cannot be obtained by simply completing the form and returning the biometric residence permit to the UK BA (as was possible pre-March 2017), detailed information will need to be provided to demonstrate current rist, based on the country background evidence and case-law, in order to avoid cessation (= revocation of a refugee status and removal from the UK).
⦁ When refugee is no longer a refugee ?
The 1951 Convention relating to the Status of Refugees (‘1951 Convention’) recognizes that Refugee Status ends under certain defined conditions. This means once an individual is determined to be a refugee, their status is maintained unless they fall within the terms of the cessation clauses or their status is cancelled or revoked.
Article 1C of the 1951 Convention sets out the circumstances when the Refugee Convention will no longer apply because an individual no longer needs protection. These circumstances occur when:
- An individual voluntarily re-availed themselves of the protection of the country of nationality
- Having lost his/her nationality, he/she voluntarily reacquired it
- The acquisition of a new nationality and enjoyment of the protection of the county of new nationality
- He/she can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.
- Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence.
Комментарии
⦁ 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 from the 6th April 2017
⦁ Immigration Skills Charge Regulations 2017 finalised version (5 April 2017)
The finalised version of the Immigration Skills Charge Regulations 2017 has been published after having been laid before parliament. The Immigration Skills Charge Regulations 2017 SI 2017/499 were made on 29 March 2017 and will come into force on tomorrow, 06 April 2017.
The finalised version of the regulations can be found here: http://www.legislation.gov.uk/uksi/2017/499/contents/made
According to the UK BA, the Immigration Skills Charge will not apply to the following category of migrants:
- a non-EEA national who was sponsored in Tier 2 before 6 April 2017 and is applying from inside the UK to extend their Tier 2 stay with either the same sponsor or a different sponsor
- a Tier 2 (Intra-Company Transfer) Graduate Trainee
- a worker to do a specified PhD level occupation
- a Tier 4 student visa holder in the UK switching to a Tier 2 (General) visa
⦁ New sets of UK BA Guidances published 5 April 2017 (6 April 2017)
A number of the new UK BA guidances were published yesterday, following the UK BA fees rise (some significant). The easiest place to get an overview is here: https://www.gov.uk/government/publications?departments[]=uk-visas-and-immigration
⦁ It has been reported that migrants can be detained if, following their immigration applicataton, when are being called to receive a decision in person at one of the UK BA offices
⦁ A child visiting a parent, who has ILR and also has sole responsibility for that child, may potentionally apply in the UK to switch into a dependent's category under the paragraphs A277, A280(b), 298, 299, etc,. However, it shold be noted that the UK BA may refuse such a switching application under the paragraph 322(7) because of V4.2 (a) & (c), unless there was an acceptable change of circumstances
⦁ An EEA national, who obtains Permanent Residence status in the UK, does not need to maintain qualified person status in the future in order to reside in the UK, sponsor other family members etc
⦁ The current version of the Retained Right of Residence (if a non-EEA national divorces an EEA national) can be found here: https://www.gov.uk/government/publications/family-members-of-eea-nationals-who-have-retained-the-right-of-residence
⦁ General grounds for refusal: criminal convictions, public good, character, conduct and associations
Criminal convictions and other signs of poor character can, unsurprisingly, negatively affect applications for leave to enter or remain in the UK. This has always been so, but in December 2012 the rules were changed to permanently ban entry of those with serious convictions, other than in certain very narrow circumstances, and to impose entry bans of various lengths in other cases.
General grounds for refusal of applications for entry clearance or leave to enter are set out at paragraph 320 of the Immigration Rules and general grounds for refusal of applications to extend or vary leave are set out at paragraph 322
⦁ The UK BA is clearly profiteering on the migrants
New fees for immigration and nationality applications come into effect on 6 April 2017. The changes include an increase of 18% in settlement (ILR) applications to £2,297 and dependent relative applications to a huge £3,250.
Many suspect the Home Office makes a hefty profit on these fees. They are correct. The actual cost of processing an ILR application is £252 and a naturalisation application cost the Home Office £386. Most outrageous is the application fee for registering a child as British. The fee in 2017 is £973, which has just gone up yet again, but the actual cost was £386.
It is not just individual migrants who are being squeezed for fees. The Immigration Skills Charge Regulations 2017 have also been published, coming into effect on 6 April 2017. These impose on employers who recruit foreign workers from outside the EU a charge of £1,000 per worker per year. A lower charge of £364 per worker per year is applicable to small businesses and universities and some exemptions apply. The charge only applies to new recruits, not existing ones.
⦁ Upper Tribunal dismisses appeal against deprivation of citizenship of Rotherham sex gang: Ahmed and Others (deprivation of citizenship) [2017] UKUT 118 (IAC)
The official headnote:
(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.
⦁ The recent changes in the UK Immigration Law in relation to lodging concurrent applications and/or variation of the existing application
The pare 34BB states that:
“34BB :
(1) An applicant may only have one outstanding application for leave to remain at a time.
(2) If an application for leave to remain is submitted in circumstances where a previous application for leave to remain has not been decided, it will be treated as a variation of the previous application.
(3) Where more than one application for leave to remain is submitted on the same day then subject to sub-paragraph (4), each application will be invalid and will not be considered.
(4) The Secretary of State may give the applicant a single opportunity to withdraw all but one of the applications within 10 working days of the date on which the notification was sent. If all but one of the applications are not withdrawn by the specified date each application will be invalid and will not be considered.
(5) Notice of invalidity will be given in writing and served in accordance with Appendix SN of these Rules.”
These changes are intended to ensure that applicants are aware that they cannot submit applications simultaneously. The UK BA is also making changes to the online and paper application forms to make this much clearer for the applicant and, of course has updated their guidance on validity to reflect this position. The guidance can be found on the UK BA web-site. Where an application is varied it must meet all the requirements of paragraph 34 of the Immigration Rules for the variation to be valid.
An applicant can still submit one application while a previous application is outstanding. The second application will have the effect of varying the first and, accordingly, only one fee is payable.
⦁ According to Dave Hollings Tennant, Immigration and Border Policy Directorate Home Office, there are no fees for settlement applications from stateless persons, despite the earlier UK BA fee increase announcement implying that it would
⦁ A brief history of immigration rules separating migrant families can be found here: https://www.lrb.co.uk/v39/n07/frances-webber/short-cuts
⦁ New Home Office guidance on status of EEA citizens/Brexit (7 April 2017): https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know#eu-nationals-who-have-lived-in-the-uk-for-less-than-5-years
⦁ Updated UK Visas and Immigration Guidance: Derivative rights of residence & extended family members of EEA nationals (11 April 2017)
- Extended family members of EEA nationals: https://www.gov.uk/government/publications/extended-family-members-of-eea-nationals
- Derivative rights of residence: https://www.gov.uk/government/publications/derivative-rights-of-residence
⦁ The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) (10 April 2017)
Link: http://www.legislation.gov.uk/uksi/2017/405/contents/made
The Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) came into force at noon on 15 March 2017.
Under article 28 of the Dublin III Regulation, Regulation (EU) No. 604/2013 of the European Parliament and of the Council of 26 June 2013, a person who has made an application for international protection may only be detained where they present a significant risk of absconding. Article 2(n) provides that “risk of absconding” means the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that the individual who is subject to a transfer procedure may abscond.
These regulations set out the criteria which will be considered to determine whether a person who has claimed asylum in the UK, but whose application is subject to the Dublin III Regulation procedure, presents a significant risk of absconding for the purpose of considering whether they should be detained. The Explanatory Note says "The urgency arises from the handing down on 15 March 2017 of a ruling by the Court of Justice of the European Union in the case of Al Chodor C-528/15 on the interpretation of the Dublin III Regulation".
In its 15 March 2017 judgment on that case, the Court of Justice considered the case of an Iraqi father and his two children who were detained by the Czech police in May 2015 pending their transfer to Hungary pursuant to the Dublin Regulation and Article 129(1) of the Czech Aliens Act. The detention was challenged before a Regional Court, which ruled it to be unlawful since the Czech legislation contained no objective criteria defining “risk of absconding”. The Supreme Administrative Court referred a question for a preliminary ruling on the need for objective criteria in legislation to define a ‘risk of absconding’.
The Court held that Article 2(n) of the Dublin III Regulation requires the criteria to establish a ‘risk of absconding’ to be ‘defined by law’, in a binding provision of general application. In the absence of that, Article 28(2) does not apply and detention on this ground must be declared unlawful. that “settled case-law confirming a consistent administrative practice . . . cannot suffice.”
⦁ What happens if you paid a UK BA fee before the UK BA fee increase but your PEO application date is after the fee increase date
Not to panic. See para 17 below. This happens each year and from our experience we have never had a need to pay a further fee. We in fact make sure clients have paid and booked for the PEO appointments before the fee increase comes in where possible (typically for slots up to 6 weeks after 5 April but sometimes the fee increase can be implemented earlier – end of March, for example).
http://www.legislation.gov.uk/uksi/2017/515/pdfs/uksi_20170515_en.pdf
Payments for in person applications
17.—(1) Where—
(a) an application is made in person; and
(b) the applicant pays the fee in relation to such an application prior to the date that the application is made,
the fee payable is that in relation to the relevant application on the date of payment.
(2) In this regulation, the date of payment means the date on which the payment is made by the applicant, unless it is made by post, in which case it means the date that the payment is posted.
⦁ Does the Trinity College English language certificate expire if a test was taken in 2014 ?
It does. After the 6th April 2015, SELT test were introduced. Anyone submitting an application required to do a new SELT test. They have a 2 year expiry date. See Appendix O of the Immigration Rules and FM 1.21 English Language Guidance
⦁ UK Visas and Immigration (UKVI) guidance: Illegal working closure notice and compliance orders (13 April 2017): https://www.gov.uk/government/publications/illegal-working-closure-notice-and-compliance-orders#history
This guidance is issued for frontline staff, mainly immigration officers, who will use the new powers in the Immigration Act 2016 to issue closure notices and apply for compliance orders to prevent illegal working.
⦁ New guidance on validity, variation and withdrawal of immigration applications: https://www.gov.uk/government/publications/specified-application-forms-and-procedures
Quite a helpful guide to the technical aspects of immigration applications.
This guidance is for decision makers and describes how to decide whether an application for leave to remain in the UK is valid, and what to do if it is not. It also describes how an applicant can vary and withdraw an application and how to calculate the date of application.
⦁ Court of Appeal gives guidance on meaning of ‘unlawful residence’: http://www.bailii.org/cgi-bin/format.cgi?doc=/ew/cases/EWCA/Civ/2017/236.html
The case of Akinyemi v SSHD [2017] EWCA Civ 236 concerns the deportation of a man born and raised in the United Kingdom, a country he has never left. It provides valuable guidance on the meaning of the word ‘unlawful’ within the context of deportation provisions introduced by the Immigration Act 2014 and shows just how far the law has moved in this area.
⦁ Rare and worrying insight into asylum casework at the Home Office: https://www.theguardian.com/public-leaders-network/2017/apr/08/asylum-caseworkers-home-office-cuts-syria-war
"After that, targets increased to the point that almost everything became subservient to the end-decision. We were set a target of 220 “units” a year. Only an interview or a decision would count as a unit – any casework would not.
If I had to call social services because I was concerned about a child, it didn’t count towards this target. It might be an afternoon’s work to do all the right referrals, but ultimately this wouldn’t be credited. That sort of work was disincentivised.
If you wanted to do the right thing, you would have to take the productivity hit and risk performance management procedures, ultimately with the threat of dismissal.".
⦁ Expedited immigration and asylum appeals for detained appellants: https://consult.justice.gov.uk/digital-communications/expedited-immigration-appeals-detained-appellants/
⦁ An application for entry clearance is deemed to be made on the date on which payment of the relevant fee is made: Kaur (Entry Clearance – date of application) [2013] UKUT 00381 (IAC)
⦁ For the UK Spouse, Fiancee and Unmarried Partner's applications the sponsor's employment can be permanent, a fixed-term contract or with an agency: Paragraph 5.5.2 of Appendix FM 1.7: Financial Requirement
⦁ Section 94B certification: presence of adult children in the UK (19 April 2017) - this does not include a child aged over 18, as clarified by the UK BA
⦁ Registration of minors as British citizens. If the child is 13 or over, then the UK BA expects the child to have resided in the UK for at least 2 years: https://www.gov.uk/government/publications/chapter-9-registering-minors-at-discretion-nationality-instructions
⦁ Once the applicant leave UK pending decision of Administrative Review; the Administrative Review will automatically be withdrawn: https://www.gov.uk/ask-for-a-visa-administrative-review/if-youre-in-the-uk
⦁ Visitors are not permitted to switch within the UK into Settlement types visas, such as a Spouse visa: https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-fm-family-members#family-life-with-a-partner
⦁ If an Entry Clearance application for Settlement (spouse) is refused and then the decision is overturned on appeal, the successful appellant may get the so-called Leave outside of the Rules, which implies not a 5 year route to Settlement but a 10 year route to Settlement.
" Immigration status requirements
E-LTRP.2.1. The applicant must not be in the UK-
(a) as a visitor; or
(b) with valid leave granted for a period of 6 months or less, unless that leave is as a fiancé(e) or proposed civil partner, or was granted pending the outcome of family court or divorce proceedings"
Recent case-law
R (on the application of RSM and Another) v Secretary of State for the Home Department (unaccompanied minors – Art 17 Dublin Regulation – remedies) [2017] UKUT 00124 (IAC)
Tribunals Service link: https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-124
(I) The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential.
(II) Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived.
(III) Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State.
(IV) Relevant government policy statements constitute, as a minimum, material considerations to be taken into account in deciding whether to exercise the discretionary power in Article 17. The Lumba principle is also engaged.
(V) The judicial assessment of the efficacy of the Dublin systems and procedures in the host Member State will invariably be fact sensitive and will take into account the overarching aims and objectives of the Dublin Regulation, including the maintenance of inter-Member State solidarity and mutual trust and respect, together with expedition.
(VI) Expedition has special force in the case of unaccompanied children.
(VII) The discretion to judicially determine essentially academic issues in judicial review proceedings will normally be informed by the overriding objective.
⦁ Extension of the post July 2012 Discretionary Leave is usually done via the FLR(HRO) form
⦁ Extension of a UK Spouse Visa on the FLR(M) form when the UK sponsor is a Seafarer who is out of the UK for more than 183 days ? Still may be possible on the basis of the Appendix FM 1.7:
5.5.4. Where the applicant’s partner is a seafarer resident in the UK but spends most of their time working at sea and qualifies for the HMRC Seafarers Earnings Deduction (which is evidenced, for example, by a letter from their accountant or from HMRC), they will be considered as a person resident in the UK for the purposes of assessing their income from salaried or non-salaried employment. They will not be treated as an overseas sponsor returning to the UK.
5.5.11. Where the applicant’s partner (and/or the applicant if they are in the UK with permission to work) is in salaried or non-salaried employment, this may include work undertaken overseas, subject to the couple meeting the requirement in paragraph E-LTRP.1.10 of Appendix FM that they intend to live together permanently in the UK and subject to the other requirements of Appendix FM-SE being met.
⦁ A person who overstayed their previous grant of leave under para 284 can apply for ILR (application form SETM) when they meet all the requirements. That presumes they were last granted 24 months leave under the Part 8 rules. In other words, the applications for ILR usually do not come under the general grounds for refusal
⦁ EEA(PR) Permanent Residence applications new UK BA guidance: https://www.gov.uk/government/publications/apply-for-a-document-certifying-permanent-residence-or-permanent-residence-card-form-eea-pr
⦁ Appendix FM (UK spouse visa etc applications). Savings account situation when the joint account is held by the sponsor and his mother, for example. The Home Office insists that the account must be in the sponsor’s name, the applicant’s name, or their joint names only. The mother, therefore, went to the bank and removed her name from the joint account, thus enabling the UK sponsor to meet the financial (savings) requirement to sponsor a foreign spouse
⦁ The UK BA is introducing new bail forms and guidance:
The forms are not being sent for formal consultation but for awareness however views are welcome:
- B1 – is the revised bail application form
- B2 – is a new addition and is the application of the person on bail to vary the conditions of bail previously granted by the Tribunal in cases where the Tribunal has not directed that future management of bail in that case should be transferred to the Home Office
- B3 – is another new addition and is the application of the person on bail to vary the conditions of bail previously granted by the Tribunal in cases where the Tribunal has not directed that future management of bail in that case should be transferred to the Home Office
Recent case-law
⦁ Tribunal finds Home Office has wrongly issued British passports to EU citizens and their children: Capparrelli (EEA Nationals – British Nationality) [2017] UKUT 00162 (IAC)
In a controversial determination, the President of the Upper Tribunal Immigration and Asylum Chamber, Mr Justice McCloskey, has found that the Home Office has wrongly issued British passports to hundreds or even thousands of children of EU, EEA and Swiss citizens born in the UK before 2 October 2000.
⦁ Supreme Court refuses damages to refugee wrongly prosecuted for illegal entry: https://www.supremecourt.uk/cases/docs/uksc-2014-0148-judgment.pdf
The main argument that appears to have been advanced in support of the case against the CPS is that their initial decision to prosecute was in breach of the claimant’s rights under Article 8 ECHR. This is given very short shrift by the Supreme Court, as it appears to have been by the Court of Appeal and the High Court before that, all of whom find that a decision to prosecute is not capable of engaging the right to private and family life.
⦁ Smith (paragraph 391(a) – revocation of deportation order) [2017] UKUT 00166(IAC) (27 April 2017): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-166
(i) In cases involving convictions for an offence for which the person was sentenced to a period of imprisonment of less than 4 years, the Secretary of State’s policy, as expressed in paragraph 391(a) of the Immigration Rules, is that the public interest does not require continuation of a deportation order after a period of ten years has elapsed.
(ii) However, paragraph 391(a) allows the Secretary of State to consider on a case by case basis whether a deportation order should be maintained. The mere fact of past convictions is unlikely to be sufficient to maintain an order if the ‘prescribed period’ has elapsed. Strong public policy reasons would be needed to justify continuing an order in such circumstances.
(iii) Paragraph 391(a) will only be engaged in a ‘post-deportation’ case if the person is applying for revocation of the order from outside the UK. Nothing in the strict wording of the rule requires the ten-year period to be spent outside the UK. However, the main purpose of deportation is to exclude a person from the UK. Any breach of the deportation order is likely to be a strong public policy ground for maintaining the order even though a period of ten years has elapsed since it was made.
(iv) In ‘post-deportation’ applications involving sentences of less than four years made before the end of the ten-year period, and ‘post-deportation’ applications involving sentences of four years or more, appropriate weight should be given to the Secretary of State’s policy as expressed in the ‘Conventions exception’ and ‘sweep-up exception’ with reference to paragraphs 398-399A and 390A of the Immigration Rules.
⦁ Is it possible to submit a passport application for a child born abroad in the UK (first passport) if father is in the UK but child is abroad? Apparently, yes, on the basis of: https://www.gov.uk/overseas-passports
The documentary evidence is submitted in the UK and you pay a courier charge for it to be sent by HMPO to the child overseas
⦁ Can the Tier 1 (Graduate Entrepreneur) be made from outside of the UK ?
Apparently, so as the page 29 of the relevant current Guidance (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/606690/T1-Graduate-entrepreneur-v15.pdf) also states that:
"The maximum time available as a Tier 1 (Graduate entrepreneur) migrant is 2 years in total, not necessarily 2 consecutive periods of leave. An applicant can therefore
have an extension which may be with their original or new endorsing body.".
Which suggests that the application for leave to enter can be made provided all other requirements are met.
⦁ UK BA intended ETA/Digital Permissions
The UK BA potentialy intends to introduce an Electronic Travel Authority (ETA) for non-visa nationals looking to travel to the UK for short periods. This would be similar to the ESTA system used by the US and the ETA system used by Australia. Canada has also introduced a similar system. It will also be similar to the proposed European Travel Information and Authorisation System (ETIAS).
⦁ The UK BA Guidance relating to the Knowledge of Language and Life in the UK (published 20 June 2016) confirms on page 7 that the category of people applying for ILR on the basis of discretionary leave do not need to meet the KoLL requirement. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565111/KoLL-v19.pdf
⦁ House of Commons' Library briefing: EU Agencies and post-Brexit options (28 April 2017): http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7957
"What are EU agencies and what do they do? Will the UK be able to participate in their activities after Brexit? And what will happen to the two that are based in the UK? This paper looks at the roles and functions of EU agencies, the issues surrounding the two UK-based agencies, and whether there are options for continued UK participation after Brexit."."
⦁ House of Commons' Library briefing: Brexit and Gibraltar (CBP-7963) (2 May 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7963
When the UK leaves the EU Gibraltar, a British Overseas Territory, will leave too. But could special arrangements be negotiated for Gibraltar? Will Spain cooperate in the negotiations between the EU and the UK or could Gibraltar become a bargaining chip for Spain to push its sovereignty claim? This paper considers Gibraltar's constitutional status and some of the possible impacts of Brexit.".
⦁ Written question to Robert Goodwill - Immigrants: Detainees - Cross-System Detention Gatekeeper (27 April 2017) : http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2017-04-21/71612/
Dr Sarah Wollaston: [71612]
To ask the Secretary of State for the Home Department, whether procedures have changed as a result of recent successful prosecutions for unlawful immigration detention.
Mr Robert Goodwill:
The cross-system Detention Gatekeeper has now been introduced to scrutinise all proposed detentions independently of an arresting team. Individuals can now only enter immigration detention with the authority of the Detention Gatekeeper, who will ensure that there is no evidence of vulnerability which would be exacerbated by detention, that return will occur within a reasonable timeframe and check that any proposed detention is lawful.
Separately, Case Progression Panels have been introduced to review all cases within immigration detention by a peer-led panel. These panels focus on ensuring that there is progression toward return for all individuals detained, and that detention remains lawful
Recent Case-Law
⦁ Early Day Motion 1194: Zambrano Carers (3 May 2017) : http://www.parliament.uk/edm/2016-17/1194
That this House calls on the Government immediately to grant Zambrano carers the right to remain in the UK; notes the 2012 ECJ judgement in the case Zambrano v Office national de l'emploi provided non-EU nationals with primary caring responsibilities (Zambrano carers) the right to reside in the Member State of which their dependent child or adult is a national; further notes that such rights derived from EU case law will be revocable through primary legislation following the Government's Great Repeal Bill; is concerned that current Zambrano carers or individuals in a similar position in the future may lose their right to remain in the UK; and demands that the Government now makes an immediate and unequivocal guarantee that Zambrano carers can remain in the UK with the same rights which they currently enjoy.
⦁ R (on the application of Majera) v Secretary of State for the Home Department (bail conditions: law and practice) [2017] UKUT 00163 (IAC) (3 May 2017):
https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-163
(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of bail. In such a situation, it is the responsibility of the parties (in particular, the respondent) immediately to draw the defect to the attention of the Tribunal, so that it can be corrected.
(2) Paragraph 2 of Schedule 3 to the 1971 Act gives the respondent power to impose restrictions on taking employment etc in respect of persons who are subject to immigration control. It is difficult to see how any condition of bail granted by the First-tier Tribunal could affect this freestanding power.
(3) Licence conditions imposed by the National Probation Service serve aims wider and different from the conditions that may be imposed by the First-tier Tribunal on a grant of bail. Rather than imposing bail conditions “in the same terms as the licence”, which is what the First-tier Tribunal’s Bail Guidance recommends, the better course is for the First-tier Tribunal to state that its conditions of bail are without prejudice to any conditions contained in the licence, and for judges to ensure there is no conflict between bail conditions and licence conditions.
⦁ R (on the application of Aydogdu) v Secretary of State for the Home Department (Ankara Agreement – family members – settlement) [2017] UKUT 00167 (IAC) (3 May 2017): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-167
(I) The settlement of migrant Turkish nationals and their family members does not fall within the scope of the “stand-still clause” in Article 41(1) of the Ankara Agreement (ECAA) Additional Protocol as it is not necessary for the exercise of freedom of establishment under Article 13. Thus the status of settlement in the UK for such Turkish nationals and their family members cannot derive in any way from the ECAA or its Additional Protocol;
(II) Where a Turkish national who exercised rights under the ECAA has been granted settlement in the UK the rights of such person and his family members are not derived from the ECAA or its Additional Protocol.
⦁ TM (EEA nationals – meaning; NI practitioners) Zimbabwe [2017] UKUT 00165 (IAC) (3 May 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-165
1. Schedule 1, paragraph 1 (d) of the Immigration (European Economic Area) (Amendment) Regulations 2012 (SI 2012/1547) amended the definition of EEA national to exclude those who are also British Citizens, but that changewas subject to the transitional provisions set out in Schedule 3 of those regulations. Similar provisions were added to the Immigration (European Economic Area) Regulations 2016 by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1) which amended schedule 6 of the 2016 Regulations by adding a new paragraph 9.
2. Although the reg 1 (2) of the 2016 regulations revoked the Immigration (European Economic Area) Regulations 2006, they are preserved for the purposes of appeals, as are the rights of appeal by an amendment to Schedule 4 of the new EEA Regulations made by the Immigration (European Economic Area) (Amendment) Regulations 2017 (SI 2017/1).
3. While the representatives regulated by OISC and members of the Bar of Northern Ireland are both entitled under section 84 of the Immigration and Asylum Act 1999 to provide immigration services, section 11 of the Code of Conduct of the Bar of Northern Ireland precludes barristers from taking instructions from persons other than lawyers who are governed by a professional body (which does not include OISC).
⦁ Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 20 February 2017 – Secretary of State for the Home Department v Rozanne Banger (Case C-89/17) (2 May 2017)
Questions referred
Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC1 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
⦁ Interesting key points in the UK BA new EEA(PR) application form guidance: https://www.gov.uk/government/publications/apply-for-a-document-certifying-permanent-residence-or-permanent-residence-card-form-eea-pr
- The EEA(PR) form is now mandatory
- If you are applying as an employed person, you do not need to provide corresponding proof of residence for the same period
- If you are applying in another capacity (for example, as a self-employed person) you only need one piece of residence evidence for every 12 month period instead of the previous two.
- You are now not required to provide proof of residence if your 5 year qualifying period ends less than two years before your application for a permanent residence document
- You no longer need to list absences less than 6 months in length or absences prior to the 5 year qualifying period
- If you have P60s for each year, this will be sufficient on its own to evidence employment (employment caregory)
- If you do not have P60s and intend to rely on payslips the guidance clears up how many payslips you need to provide, stating that 3 payslips for each year would be sufficient, with rules about which payslips and intervals between them (employment)
- If you were not registered under Worker Registration Scheme (WRS), you can not count any periods of residence prior to 30 April 2011. However, if you were not registered or not exempt you may face questions of good character under this requirement when you apply for British citizenship
- Self-employed applications needs to provide many more other documents
⦁ Retained right of residence applications (application EEA(FM)) - when the EEA sponsor has left the UK
The new EEA (FM) at section 4.2 offer the option of choosing “I have retained my rights because the EEA national has died or left the UK, OR my marriage has ended in divorce”
One can wonder, where does the “has left the UK” come in to force in such an application? The answer is that the direct descendant under the Regulation 10(3)(a)(ii), where they are in education, and that person’s parent under 10(4), can only benefit from this provision
⦁ PBS dependents & absences in excess of 6 months vs Settlement applications
It may be possible for a PBS (Tier 1 and 2) Migrant partner to apply for Settlement (ILR) at the same time as the main PBS applicant if that PBS partner has spent more than 6 months in each of the previous 5 years outside of the UK. The PBS partner must have continuous leave under para 319E(d), etc., but there are no restrictions on periods of absences.
⦁ Is it possible to get a Permanent Residence for an EEA national without economic activity etc ?
The new EEA Regulation 17(3) implies so:
Reg 17(3):
(3) The Secretary of State must issue a registration certificate to an EEA national who is the family member of a qualified person or of an EEA national with a right of permanent residence under regulation 15 immediately on application and production of—
(a)a valid national identity card or passport issued by an EEA State; and
(b)proof that the applicant is such a family member
It means that an EEA spouse of an economically active EEA citizen may be issued with Permanent Residence on the bases of just being a family member of a qualified EEA citizen
⦁ Applying as the Family Member of a Tier 1, 2 or 5 migrant in the UK
33.If you are the family member of a Tier 1, 2, or 5 migrant, you cannot apply in the UK if you:
- were last granted entry clearance or leave as a visitor, including where they entered the United Kingdom from the Republic of Ireland to stay under the terms of articles 3A and 4 of the Immigration (Control of Entry through the Republic of Ireland) Order 1972 (as amended by the Immigration (Control of Entry through Republic of Ireland) (Amendment) Order 2014) on the basis of a visa issued by the Republic of Ireland authorities endorsed with the letters “BIVS” for the purpose of travelling and staying in the Republic for a period of 90 days or fewer; or
- were last granted entry clearance or leave as a short-term student or a short-term student (child)
- were last granted entry clearance or leave as a parent of a Tier 4 (child) student unless the Relevant Points Based System Migrant has, or is being granted, leave to remain as a Tier 5 (Temporary Worker) Migrant in the creative and sporting subcategory on the basis of having met the requirement at paragraph 245ZQ(b)(ii); or
- are on temporary admission or temporary release
⦁ Appendix FM vs Academic Grants
The appendix FM states that:
Income from a maintenance grant or stipend (not a loan) associated with undergraduate study or postgraduate study or research received by the applicant’s partner or the applicant can be counted towards the financial requirement. The person must be currently in receipt of the grant or stipend or will be within 3 months of the date of application, and the grant or stipend must be payable for a period of at least 12 months, or for at least one full academic year, from the date of application or from the date on which payment of the grant or stipend will commence.
The interpretation from the above is that the sponsor must to be in receipt of the grant for 12 months from the date of the entry clearance application regardless of how long the sponsor has been receiving the grant for.
⦁ Waiting time in the immigration tribunal now 84 weeks (1.6 years !) for some appeals
The latest tribunal statistics, published in March 2017, show that the average waiting time for appeals to be heard in the immigration tribunal is now 48 weeks. This is the time between the appeal being lodged and the appeal being decided, it seems.
The breakdown for different types of appeal reveals major disparities between different types of appeal, though, with waiting times for entry clearance appeals — for example for spouses or children applying to join family members in the UK — as high as 84 weeks. That is over a year and a half. With 51% of all entry clearance appeals being allowed in Q3 2016, that is a very considerable impact on a lot people wrongly kept apart by poor quality immigration decisions.
⦁ Guidance from tribunal on strike out powers and appeal to Court of Appeal as remedy: http://www.bailii.org/uk/cases/UKUT/IAC/2017/123.html
Official head note:
(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.
(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.
(iii) Every decision upon an application to reinstate must give effect to the overriding objective.
(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.
The directions in these and hundreds of other cases, many of which will have been handled by the same small firms of solicitors, were that cases would automatically be struck out if the claimant did not serve within 7 days amended grounds for judicial review distinguishing the facts of an individual case from complex Court of Appeal and Upper Tribunal authorities.
Just 7 days to read, understand, get money from client and draft amended grounds or instruct Counsel. Automatic strike out. Hundreds of cases.
On the face of it, the giving of these directions seems like unbelievably arbitrary behaviour by the tribunal which was obviously contrary to the overriding objective. The directions seem to be deliberately designed to lead to strike out in as many cases as possible. Why 7 days? What was the hurry? Why not 14 days or 28 days? It is impossible to imagine the Secretary of State for the Home Department being treated in similar manner. Perhaps there is more to it, but that is certainly how it looks to an external observer.
⦁ New Home Office policy: Exclusion from the UK: https://www.gov.uk/government/publications/exclusion-decisions-and-exclusion-orders#page4
This guidance has been completely re-formatted and deals with the exclusion of both non-Economic European Area (non-EEA) nationals and European Economic Area (EEA) nationals and their family members. It replaces Exclusion decisions and exclusion orders guidance which has been archived. It includes:
- advice on the Authority to Carry Scheme 2015
- explanation of unacceptable behaviour
- updated guidance on rights of appeal
- advice on notification of decisions
- advice on excluding EEA nationals or their family members under the Immigration (European Economic Area) Regulations 2016
- advice on deprivation of citizenship in exclusion cases
⦁ Home Office application to delay Calais Jungle child asylum case refused by tribunal: http://www.bailii.org/uk/cases/UKUT/IAC/2017/168.html
In an oral decision in the case of R (on the application of AO & AM) v Secretary of State for the Home Department (stay of proceedings – principles) [2017] UKUT 168 (IAC) given on 28 March 2017, the Upper Tribunal refused the Secretary of State’s application to stay the Judicial Review proceedings of AO and AM, two unaccompanied minors previously in the Calais Jungle, and who had been refused their transfer to the UK under the expedited Dublin III process.
In the decision Mr Justice McCloskey, President of the Upper Tribunal, offers very useful and interesting guidance on the principles to be followed in applications to stay proceedings pending the outcome of another, lead case.
⦁ Non-working EEA family members of a working EEA national - ability for those non-working EEA family members to still apply for Permanent Residence in the UK
If the main EEA applicant qualifies as a worker, then his/her EEA spouse/ civil partner (though not exercising treaty rights themselves) may qualify for PR “in line” with the main Applicant.Hence would not need CSI. This is applying Immigration (EEA) Regs 2006 para 15.(1) (b). This is also supported by HO Guidance 21/4/17 on Free Movement Rights: direct family members of EEA nationals Permanent rights of residence scenario 4.
Recent case-law
⦁ R (on the application of Zia and Hossan) v Secretary of State for the Home Department (Strike out – Reinstatement refused – Appeal) [2017] UKUT 00123 (IAC) (3 May2017): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-123
(i) A decision of the Upper Tribunal refusing to exercise its power to reinstate a judicial review claim which has been struck out may be the subject of an application for permission to appeal to the Court of Appeal.
(ii) Such a decision, given its nature and consequences, is not to be equated with a mere case management decision.
(iii) Every decision upon an application to reinstate must give effect to the overriding objective.
(iv) Rule 8 of the Tribunal Procedure (Upper Tribunal) Rules 2008 provides the only mechanism for challenging a strike out order. Rule 43 has no application in this context.
⦁ Her Majesty's Courts and Tribunals pilots test virtual hearings this week
The proposed first round of the Virtual Hearings research is on Weds 17 May at Surherland Labs, 52 Shorts Gardens, WC2H 9AN (Covent Garden tube).
The aim is to hold 3-4 research sessions, in the afternoon/early evening (exact timings to be finalised). Each session will be run as a virtual meeting so that we IAC can start exploring the technology from the perspective of IAC participants. The aim is to have three participants in each research session, one of whom will be an IAC advocate (the others being judge and presenting officer).
Recent Upper Tribunal decisions
Pirzada (Deprivation of citizenship: general principles) [2017] UKUT 00196 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-196
(i) The Secretary of State has two separate powers of deprivation, exercisable on different grounds, as set out in sub-ss (2) and (3) of s 40 of the British Nationality Act 1981.
(ii) The power under s 40(2) arises only if the Secretary of State is satisfied that deprivation is conducive to the public good.
(iii) The power under sub-s (3) arises only if the Secretary of State is satisfied that registration or naturalisation was obtained by fraud, false representation or concealment of a material fact. The deception referred to must have motivated the grant of (in the present case) citizenship, and therefore necessarily preceded that grant.
(iv) The separation of sub-ss (2) and (3) makes it clear that obtaining naturalisation by one of the means of deception set out in sub-s (3) cannot of itself amount to a reason enabling the Secretary of State to be satisfied that deprivation is conducive to the public good for the purposes of sub-s (2); but, in an appropriate case, there would appear to be no reason why the Secretary of State should not be satisfied that the conditions under both subsections exist.
(v) The restrictions on the rights of appeal imposed by s 84 of the 2002 Act do not apply to appeals against a s 40 decision: therefore, any proper ground of appeal is available to an applicant. The grounds of appeal are, however, limited by the formulation of s 40 and must be directed to whether the Secretary of State’s decision was in fact empowered by that section. There is no suggestion that a Tribunal has the power to consider whether it is satisfied of any of the matters set out in sub-ss (2) or (3); nor is there any suggestion that the Tribunal can itself exercise the Secretary of State’s discretion.
CS and Others (Proof of Foreign Law) India [2017] UKUT 00199 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-199
The content of any material foreign law is a question of fact normally determined on the basis of expert evidence.
R (on the application of Al-Anizy) v Secretary of State for the Home Department (undocumented Bidoons – Home Office policy) [2017] UKUT 00197 (IAC): https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-197
R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 00198 (IAC):
https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-198
(i) The commonly used forms of consent order do not expose either party to possible contempt action or other sanction.
(ii) The remedy for non – compliance with a consent order will normally be the initiation of a fresh judicial review claim.
⦁ Family life succeeds in defeating s.94B ‘deport first, appeal later’ certification:http://www.bailii.org/ew/cases/EWCA/Civ/2017/338.html
The judgment in OO (Nigeria), R (on the application of) v Secretary of State for the Home Department [2017] EWCA Civ 338 is one of a series of cases challenging the lawfulness of the certification regime under s.94B Nationality Immigration Asylum Act 2002 (as amended).
This case is notable for its treatment of family life issues in respect of a (potentially) temporary absence from the United Kingdom whilst an appeal is ongoing, and a reminder that specific evidence documenting the best interests of any children involved in a deportation case will be crucially important.
⦁ Home Office unlawfully relies on Albania guidance for five years: http://www.bailii.org/ew/cases/EWCA/Civ/2017/351.html
The Home Office has relied on outdated guidance to determine asylum applications from Albanian nationals, the Court of Appeal has held. The judgment in LC (Albania) will have far-reaching effects for those people denied protection under bad law over a number of years.
The judgment also reiterates the approach to be taken when considering the future behaviour of asylum applicants if they return to their home country.
⦁ Another successful unlawful detention claim: http://www.bailii.org/ew/cases/EWHC/Admin/2017/935.html
R (Ademiluyi) v SSHD [2017] EWHC 935 (Admin) concerns a successful claim for damages by an individual unlawfully detained under immigration powers. It is notable for its restatement of the importance of the third Hardial Singh principle, and as a further example of the Secretary of State’s ‘enduring casualness’ [23] when dealing with cases involving immigration detention.
⦁ Tribunal says foreign law is a question of fact normally determined by expert evidence: http://www.bailii.org/uk/cases/UKUT/IAC/2017/199.html
The Home Office proposed to remove the father of a family and three children to India and the wife and mother to Pakistan, thus separating the family. The family argued that they would be permanently separated because the immigration laws of India would not allow entry for the mother. The Home Office argued to the contrary, but the evidence on which the Home Office arguments was based was found to be, um, a bit flawed:
"It follows that the cornerstone of the Secretary of State’s case crumbles and collapses. The main pillar upon which the Secretary of State has sought to justify the impugned removal decisions has been shown to be devoid of foundation. The expectation on which the Secretary of State’s decision was based is misconceived".
The official headnote:
"The content of any material foreign law is a question of fact normally determined on the basis of expert evidence".
It does rather feel as if the burden of proof may have been reversed here on the foreign laws question, but a good result for the long suffering and unrepresented family nonetheless.
⦁ Court of Justice of the EU (CJEU) on Zambrano children (16 May 2017)
Last week the CJEU handed down a judgment on Zambrano children and whether their third country national parent (primary carers) can be deported. The case was on a reference from the Netherlands. It is rather long and quite complex so difficult to summarise in a few lines. The brief is as follows below.
Everything depends on whether the EU citizen child is genuinely dependent on the third country national parent. If this is the case then the best interest of the child obligation kicks in and the parent has a right of residence (and to social benefits). Even if there is an EU citizen parent who might be able to care for the child, the key is still and always the dependency relationship of the child with the third country national parent.
The CJEU provides some guidance on the factors to take into account to make the assessment (and yes, there is a light burden of proof on the parent to provide the evidence):
In order to assess that risk, the Court instructs the authorities to consider:
⦁ which parent is the primary carer of the child;
⦁ is there in fact a relationship of dependency between the child and the third country national parent;
⦁ the right to respect for family life (Article 7 EU Charter of Fundamental Rights);
⦁ the best interests of the child (Article 24(2) EU Charter of Fundamental rights.
The fact that the other, EU citizen parent is actually able and willing to assume the role of sole responsibility for the primary day-to-day care of the child is only a relevant factor. It is not a sufficient ground to conclude that the dependency relationship of the child and the third country national is not such as to compel the child to leave the EU if that parent was expelled. Specific circumstances must be taken into account:
⦁ the best interests of the child;
⦁ the child’s age;
⦁ the child’s physical and emotional development;
⦁ the extent of the child’s emotional ties with the Union citizen parent and the third country national parent;
⦁ the risks which separation from the third country national parent might entail for the child’s equilibrium (para 71).
⦁ Tier 2 (General) ILR v £35K earning shortly: salary increase shortly before the ILR date ?
It is worth noting that the paragraph 245HF of the current Immigration Rules doe not say for how long the Tier 2 migrant should be paid at least £35,000 and the Paragraph 245HH of the Rules requires only the most recent pay slip. Therefore it seams there is no minimum length of period the applicant should have been getting the minimum basic salary of £35,000 before an application for ILR is made. The Rules implies that someone who is getting £25,000 per annum but 4 months before he makes an application for ILR his salary is increased to £35,000, he may then be considered to satisfy the minimum threshold of £35,000. This is backed up by the (subject to the specified evidence requirements in the Paragraph 245HH of the Rules) need for the employer to certify in writing that ‘that this salary will be paid for the foreseeable future’, so some scope for refusal under the general grounds if the HO does not believe the certification. All in all, one must understand that the Home Office can get suspicious on the steep rise in the salary, therefore the speed salary increase shortly before the ILR application is unadvised yet technically possible.
⦁ EEA applications when the EEA sponsor is refusing to provide documents (Retained Right of Residence (RRRP, Permanent Residence (PR))
So, is it all over for the non-EEA national when his/her EEA national sponsor is refusing to cooperate ? Not really. The only way to win for that non-EEA national is to make an application for RRR/PR (NB depending ob the circumstances, of course) and request the Secretary of State to obtain information from the HMRC, PWD etc in relation to the EEA national. The Secretary of State is not obliged to do so, and if the application fails, then during the appeal before the Tribunal seek directions from the Tribunal against the Secretary of State using the Rule 5 and the Rule 15 applications (The Tribunal Procedure Rules 2014) to obtain the information in connection with the EEA nation from other government departments (see paragraph 40 of Amos v Secretary of State for the Home Department [2011] EWCA Civ 55).
⦁ Is the TB test required for fiance(e) applications ?
The TB test is required under the paragraph A39 of the Immigration Rules:
"A39. Any person making an application for entry clearance to come to the UK for more than six months or as a fiancé(e) or proposed civil partner applying for leave to enter under Section EC-P:Entry clearance as a partner under Appendix FM, having been present in a country listed in Appendix T for more than six months immediately prior to their application, must present, at the time of application, a valid medical certificate issued by a medical practitioner approved by the Secretary of State for these purposes, as listed on the Gov.uk website, confirming that they have undergone screening for active pulmonary tuberculosis and that this tuberculosis is not present in the applicant.".
⦁ UK BA's random requests for the so-called Statement of Additional Grounds (RED0003) questionnaires
It seems that the UK BA have started routinely sending out additional Statement of Additional Grounds (RED0003) questionnaires, following the submission of the application for Settlement etc, despite the applications being approved at a later stage.
⦁ UK Visas and Immigration guidance: Points-based system- sponsor compliance visits (19 May 2017): https://www.gov.uk/government/publications/points-based-system-sponsor-management
⦁ What is the migrant's rights if the Settlement application (SET(DV)) on the basis of Domestic Violence is refused and the migrant has a new partner at the same time ?
The DV application will not give rise to a right of appeal. The remedy is Admin Review. If the AR is not pursued, or refused, the person will be able to make another application (so long as they have not overstayed by more than 14 days). It is understood that the UK BA might curtail the person’s spouse leave on refusing the DV application, so that the person will become an overstayer on receiving the decision. One should note that the Section 3C leave will not kick in in these circumstances. They will need to make an application in line with para 39E (which is vert poorly drafted, by the way). It appears that the applicant will have 14 days to lodge an AR, and then 14 days after the AR has been refused to make another application.
Recent case-law
⦁ Tribunal rules a Big Issue seller has no right of residence in EU law: http://www.bailii.org/uk/cases/UKUT/AAC/2017/155.html
The appellant was earning a steady £50 per week working a 40 hour week and the First-tier dismissed the appeal on the basis that the work was not “genuine and effective”.
⦁ UK law found to be more generous than EU law for jobseekers acquiring permanent residence: http://www.bailii.org/uk/cases/UKUT/AAC/2017/145.html
The case of GE v. SSWP (ESA) [2017] UKUT 145 (ACC) sets out how the Immigration (European Economic Area) Regulations 2006 (since replaced with the 2016 version), are in some areas, more generous than EU law itself by concluding that an initial right of residence or status as a job-seeker could count towards permanent residence for an EEA national.
⦁ No human rights issues to be raised in EEA appeals, confirms Court of Appeal: http://www.bailii.org/uk/cases/UKUT/IAC/2015/466.html
In September 2015, the Upper Tribunal decided the case of Amirteymour and others (EEA appeals; human rights) [2015] UKUT 466 (IAC). The decision states that if an appeal is brought in the First-Tier Tribunal against an EEA decision then the only relevant issues that can be raised during the appeal are those directly connected to that EEA decision. Human rights issues, the Upper Tribunal ruled, were not justifiable.
⦁ When can a tribunal be forced to pay the costs of judicially reviewing it? - http://www.bailii.org/ew/cases/EWCA/Civ/2017/352.html
Apparently, not often. Only if the tribunal acts in an improper way. Incompetence or unlawfulness is not sufficient
⦁ Tribunal gives guidance on general principles in deprivation of citizenship appeals: http://www.bailii.org/uk/cases/UKUT/IAC/2017/196.html
Interesting case on deprivation of citizenship, not least as the Home Office spectacularly messed up by refusing on an unjustifiable grounds when there was a justifiable one staring them in the face.
⦁ Reference for a preliminary ruling from Upper Tribunal (Immigration and Asylum Chamber) London (United Kingdom) made on 20 February 2017 – Secretary of State for the Home Department v Rozanne Banger (Case C-89/17) (2 May 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-125
Questions referred
Do the principles contained in the decision in Immigration Appeal Tribunal and Surinder Singh, ex parte Secretary of State for the Home Department (Case C-370/90) [1992] operate so as to require a Member State to issue or, alternatively, facilitate the provision of a residence authorisation to the non-Union unmarried partner of a EU citizen who, having exercised his Treaty right of freedom of movement to work in a second Member State, returns with such partner to the Member State of his nationality?
Alternatively, is there a requirement to issue or, alternatively, facilitate the provision of such residence authorisation by virtue of European Parliament and Council Directive 2004/38/EC1 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (“the Directive”)?
Where a decision to refuse a residence authorisation is not founded on an extensive examination of the personal circumstances of the Applicant and is not justified by adequate or sufficient reasons is such decision unlawful as being in breach of Article 3(2) of the Citizens Directive?
Is a rule of national law which precludes an appeal to a court or tribunal against a decision of the executive refusing to issue a residence card to a person claiming to be an extended family member compatible with the Directive?
⦁ The long established case of DR Morocco is no longer relevant as the Tribunal can consider post-decision facts even in an entry clearance appeal
⦁ The form SET(O) can generally be used for those Discretionary Leave (DL) Settlement cases where the applicant was not previously refused asylum. The form FLR(DL) is generally to be used in both further leave and Settlement cases where the applicant was previously refused asylum
⦁ The Court of Appeal has dismissed the BritCits challenge to the adult dependent relative rule. The challenge to the general rule was dismissed on all three grounds: http://www.bailii.org/ew/cases/EWCA/Civ/2017/368.html
In response to BritCits submissions on the treatment of care being considered adequate regardless of emotional ties and the extent to which care provided by the family would improve the elderly relative's quality of life, the Court indicated that evidence of psychological and emotional requirements are capable of being considered in the assessment:
59. Second, as is apparent from the Rules and the Guidance, the focus is on whether the care required by the ADR applicant can be "reasonably" provided and to "the required level" in their home country. As Mr Sheldon confirmed in his oral submissions, the provision of care in the home country must be reasonable both from the perspective of the provider and the perspective of the applicant, and the standard of such care must be what is required for that particular applicant. It is possible that insufficient attention has been paid in the past to these considerations, which focus on what care is both necessary and reasonable for the applicant to receive in their home country. Those considerations include issues as to the accessibility and geographical location of the provision of care and the standard of care. They are capable of embracing emotional and psychological requirements verified by expert medical evidence. What is reasonable is, of course, to be objectively assessed.
⦁ Emails to UKVI outside the UK will be charged from the 1st June 2017
From 1 June, all customer enquiries will be handled by a new commercial partner Sitel UK.
The new contract will see a number of changes for customers.
These changes help the government reduce costs and ensure those who benefit directly from the UK immigration system make an appropriate contribution.
The main changes for customers applying from outside the UK are:
- all phone numbers and opening hours will change
- the number of languages offered is reducing to 8 including English
- customers who contact UK Visas and Immigration by email will be charged £5.48
You will need to pay using a credit or debit card for contacting us by email. The charge includes the first email enquiry you send and any follow-up emails to and from the contact centre relating to the same enquiry.
The way you pay to use the telephone service will remain the same using a credit or debit card.
If you do not have access to a credit or debit card, you may choose to use a trusted 3rd party such as an agent or sponsor.
There are no changes to services if you are contacting us from inside the UK.
⦁ The case of Stoly Jankovic: what are the 10 and 20 year rules on long residence : https://www.theguardian.com/uk-news/2017/apr/02/thousandssign-petition-london-shop-worker-deportation-stojan-jankovic
The case of Stoly Jankovic recently attracted a lot of press attention and a great deal of sympathy. He had apparently been living and working in the UK since 1999, for a period of 26 years. How can it be right that he be detained for removal after all that time? Well, the rules on acquiring lawful status after long residence are very tightly drawn and it sounds as if he has fallen foul of them.
⦁ EEA(PR) applications - can the electronic eP60s be provided by the applicants ?
The UK BA's answer is "yes": The EP60s will be acceptable as long as the full detail of the employer’s name and address is shown.
⦁ UK wrong to deny residence rights for non-EEA family members of dual nationals: http://curia.europa.eu/juris/document/document.jsf?text=&docid=191183&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=747813
This issue was put to the Court of Justice in the case of Lounes C-165/16 has now received a formal Opinion by the Advocate-General suggesting that the UK was wrong to deny EU rights to dual citizens and their family members.
Advocate General Opinions
The Court of Justice interprets EU law to make sure it is applied in the same way in all EU countries, and settles legal disputes between national governments and EU institutions. The Advocate-General provides an initial opinion before the judges deliberate and give their own verdict. As the Advocate-General opinion is advisory and do not bind the court, the judges are not obliged to follow them, but they are nonetheless very influential and are followed in most cases.
⦁ Indefinite detention does not breach ECHR says European Court of Human Rights : http://hudoc.echr.coe.int/eng#{%22appno%22:[%2233341/13%22]}
Unlike most other European countries, there is no time limit on immigration detention in the UK. In addition, the law does not provide for an automatic judicial review of the lawfulness of detention. Instead, detainees must proactively challenge the lawfulness of their detention. In an admissibility decision of 18 May 2017, the European Court of Human Rights found that this system does not violate the European Convention of Human Rights, an in particular article 5 on the right to liberty.
⦁ When must the tribunal allow appeals against Home Office decisions containing errors of law : http://www.bailii.org/ew/cases/EWCA/Civ/2017/362.html
Where the Secretary of State makes an error of law in a decision which is then appealed to the tribunal, does the tribunal have to allow that appeal on the basis that the decision contains an error of law?
Not unless the decision as a whole is unlawful, finds the Court of Appeal in Singh (India) v Secretary of State for the Home Department [2017] EWCA Civ 362 (24 May 2017).
⦁ Can a person granted subsidiary protection be transferred under Dublin III : http://curia.europa.eu/juris/document/document.jsf?text=&docid=189841&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=818694
The EU does not want asylum seekers to ‘shop around’ its Member States. To this end, various Regulations exist to prevent someone who has already claimed asylum in one Member State from subsequently doing so in another.
But what if an applicant has claimed before, the result of which was being granted not refugee status, but subsidiary protection (‘humanitarian protection’ in the UK)? The CJEU has replied to a reference from the German administrative court to deliver its answer.
⦁ Is it a requirement for a non EEA national to hold a residence card before applying for permanent residency (on the basis of a 2 year durable relationship) ?
Apparently yes, as only direct family members (usually spouses and children under 21 etc) have automatic entitlement into EU law. For extended family members (like unmarried partners etc), they are at the discretion of the UK BA.
⦁ Is it possible to make an application under the EEA Regulations and also a private/family life application under the Immigration Rules for the same applicant before the EEA application is decided ?
Apparently yes, as an EEA application is not an application for leave to remain
⦁ Get a faster reply to your visa application, if your postal application is long time outstanding (or you you now regret that you did not apply in person initially): https://www.gov.uk/faster-reply-visa-application
You may be able to get a decision on your visa within 5 working days if you’ve sent your application by post and the payment has cleared.
If you’re applying for limited leave to remain (using Tier 4 or FLR forms for example) then you won’t be able to get a faster reply using this service.
You can also use this service to apply for a biometric residence permit (BRP) if you’re settled in the UK with no time limit.
Who can apply
You can only use this service if you made your application from within the UK and used one of the following forms:
SET (AF)
SET (F)
SET (LR)
SET (M)
SET (O) - apart from exceptions
SET(O) exceptions
If you use the SET(O) form you won’t get a faster reply if you’re:
a Tier 1 (Investor)
a Tier 1 (Graduate Entrepreneur)
a Tier 1 (Entrepreneur)
a self-employed lawyer
a seaman
a Gurkha
a Turkish business person
an elderly dependant
someone whose case isn’t covered by immigration rules
If you’re applying for discretionary leave to remain or humanitarian protection you can only apply through the SET(O) form if you’re:
under the transitional arrangements to extend your discretionary leave after 3 years
applying to settle in the UK after 6 years discretionary leave
Fees
You must pay £490 per person, in addition to the application fee you’ve already paid.
⦁ Electronic payslips & the UK BA opinion
Appendix A of the Sponsor Guidance states that payslips must be provided for employees already employed who need to be sponsored.
Most payslips are now issued electronically. According to the UK BA, the electronic printouts of payslip are perfectly acceptable in line with the requirements of Appendix A
⦁ Can the EEA's national passport be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
Theoretically - yes, in line with the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which states that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national.
Yet practically NO, as it appears that the UK BA is unaware (?) of the case of Barnet and keeps refusing such PR applications...
⦁ Visitor and the Section 3C benefits ?
May the Section 3C benefit a visitor who then makes a human rights application before their visa expires? Apparently, yes. The Section 3C may not discriminate between the type of leave as long as the leave was extant at the time of making the application.
⦁ What documents a person born in the UK before 1983 to British parents needs to produce to get a passport if that person started living outside of the UK shortly after his birth ?
- Photos and documents you must send: https://www.gov.uk/apply-first-adult-passport/photos-and-documents-you-must-send
- Also, send your full birth certificate or adoption certificate: https://www.gov.uk/register-birth/birth-certificates
⦁ Can a migrant ask for a refund of the "unused" part of the UK BA IHS fees paid such a migrant then subsequently obtains Settlement (ILR) or switches into another category where another UK BA IHS fee has to paid ?
The answer, generally, is "yes": https://www.whatdotheyknow.com/request/refund_of_ihs_on_visa_switch
⦁ Can the EEA's national passpprt be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
It used to be possible in the recent past in reliance to the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which statd that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national. Then the Immigration (EEA) Regulations 2016 came into force and under the Regulation 21(5) when one of the applicants in a non-EEA national the EEA national's valid ID msut still be provided:
"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."
⦁ UK Visas and Immigration Guidance: Returns preparation (12 June 2017) : https://www.gov.uk/government/publications/returns-preparation
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
⦁ House of Commons' Library Briefing paper: The Common Travel Area and the special status of Irish nationals in UK law (CBP-7661) (9 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7661
The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.
⦁ House of Commons' Library Briefing paper: Migrant workers in agriculture (CBP-7987) (12 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7987
The agriculture industry warns of post-Brexit labour shortages. This Commons Library briefing looks at the sector's reliance on migrant labour, the Seasonal Agricultural Workers Scheme and the implications of the UK's exit from the EU.
⦁ UK Visas and Immigration Guidance - Employer sponsorship: restricted certificate allocations (14 June 2017) : https://www.gov.uk/government/publications/employer-sponsorship-restricted-certificate-allocations
This document lists the number of restricted certificates allocated to employer sponsors by month, for foreign workers in Tier 2 (General).
It seems that there might be an error in the latest version of the Tiers 2 and 5 sponsor guidance (version 04/17). Para.6.26 of the updated guidance provides as follows:
"You must always have a minimum of one level 1 user who is a settled worker. The only exception to this rule is if you are a diplomatic mission or international organisation licensed under the Tier 5 (Temporary Worker) International Agreement sub category."
The UK BA has been duly requested to clarify this point.
Recent case-law
The UK BA's principle of "remove first - appeal later" was found to be unlawful - the case of the R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, 14 June 2017: https://www.supremecourt.uk/cases/uksc-2016-0009.html
The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).
Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).
Below is a brief summary of the judgement:
Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.
Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.
The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.
It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.
The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.
Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.
⦁ Can the EEA's national passpprt be NOT submitted (and a certified copy be sent instead) with the PR application where there a non-EEA dependent ?
It used to be possible in the recent past in reliance to the case of Barnet and Others (EEA Regs: rights and documentation) [2012] which statd that the requirement in the (EEA) Regulation 17(1)(a) and (2)(a) for the production of a valid passport relates to the passport of the Applicant, not the EEA national. Then the Immigration (EEA) Regulations 2016 came into force and under the Regulation 21(5) when one of the applicants in a non-EEA national the EEA national's valid ID msut still be provided:
"(5) Where an application for documentation under this Part is made by a person who is not an EEA national on the basis that the person is or was the family member of an EEA national or an extended family member of an EEA national, the application must be accompanied or joined by a valid national identity card or passport in the name of that EEA national."
⦁ UK Visas and Immigration Guidance: Returns preparation (12 June 2017) : https://www.gov.uk/government/publications/returns-preparation
Guidance on arranging removals for officers dealing with immigration enforcement matters within the UK.
⦁ House of Commons' Library Briefing paper: The Common Travel Area and the special status of Irish nationals in UK law (CBP-7661) (9 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7661
The Common Travel Area is a special travel zone between the Republic of Ireland and the UK, Isle of Man and Channel Islands. It dates back to the establishment of the Irish Free State in 1922. This briefing focuses on how the CTA operates between the UK and the Republic of Ireland.
⦁ House of Commons' Library Briefing paper: Migrant workers in agriculture (CBP-7987) (12 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7987
The agriculture industry warns of post-Brexit labour shortages. This Commons Library briefing looks at the sector's reliance on migrant labour, the Seasonal Agricultural Workers Scheme and the implications of the UK's exit from the EU.
⦁ UK Visas and Immigration Guidance - Employer sponsorship: restricted certificate allocations (14 June 2017) : https://www.gov.uk/government/publications/employer-sponsorship-restricted-certificate-allocations
This document lists the number of restricted certificates allocated to employer sponsors by month, for foreign workers in Tier 2 (General).
It seems that there might be an error in the latest version of the Tiers 2 and 5 sponsor guidance (version 04/17). Para.6.26 of the updated guidance provides as follows:
"You must always have a minimum of one level 1 user who is a settled worker. The only exception to this rule is if you are a diplomatic mission or international organisation licensed under the Tier 5 (Temporary Worker) International Agreement sub category."
The UK BA has been duly requested to clarify this point.
Recent case-law
The UK BA's principle of "remove first - appeal later" was found to be unlawful - the case of the R (Kiarie and Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, 14 June 2017: https://www.supremecourt.uk/cases/uksc-2016-0009.html
The Supreme Court has handed down its judgement today unanimously allowing the appeals. The judgement delivered by Lord Wilson, with whom everyone but Lord Carnworth (who also allows the appeals but for slightly different reasons) agreed and found the certificates issued under section 94B were unlawful and incompatible with Article 8 as the foreign criminal’s removal in advance of an arguable appeal may be outweighed by a wider public interest, namely that where an appeal right is given, that appeal should be effective (para 35).
Para 31 to 35 looks at the objectives of section 94B – The objectives of the SSHD were firstly, to stop allowing foreign criminals preventing deportation from dragging out the appeals process; secondly, to prevent foreign criminals building up a further claim under article 8 to a settled life in the UK (para 31) and thirdly and more fundamentally, they are foreign criminals (para 32).
Below is a brief summary of the judgement:
Para 37 of the judgement makes clear that Parliament had decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimant’s human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. However once again the guidance that the SSHD provided to caseworkers did not make this clear. Instead it appears that caseworkers were routinely applying the certificates. Moreover Lord Wilson at para 39 distances himself from Richards LJ observations in the Court of Appeal and states the issue and focus is on the risk of serious harm to the prospects of an appellants appeal, as that could be a ground that removal would breach their Convention rights.
Lord Wilson goes on to find at para 43 that in proceedings for judicial review of a certificate under section 94B, the court or the tribunal must also decide for itself whether deportation in advance of his appeal would breach the appellant’s Convention rights. Lord Wilson moves away from the Wednesbury assessment and confirms at para 47 that if the court or tribunal is to discharge its duty under section 6 of the 1998 Act, the court will need to be more proactive than simply apply the Wednesbury criterion. Therefore the court has a residual power to determine facts and to that end to receive evidence including oral evidence.
The requirements of Article 8 are set out at para 48. Article 13 of the Convention plays a significant role in how Lord Wilson reaches his decision. Article 13 is set out at para 49. It protects a person’s right to have an effective remedy. Para 50 is fundamental as this sets the scene for what is required under Article 8 and sets out the jurisprudence of the ECtHR.
It is from para 52 to 78 that Lord Wilson considers the relevant circumstances and considerations. Not to mention the very practical difficulties faced by appellants in bringing their cases in a way that would allow them to make full and effective use of their right to appeal before a tribunal after their deportation.
The Court finds at para 76 that for the appeals to be effective, the appellants would need at least to be given the opportunity to give live evidence. It is not realistic or possible to give evidence via video link, the Court says the financial and logistical barriers to give evidence on screen are almost insurmountable.
Para 78 confirms that the SSHD has failed to strike a fair balance between rights of the appellants and the interests of the community.
⦁ No English language test for those who apply for Settlement after 6 years of the so-called Discretionary Leave (DL) - see page 7 of https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565111/KoLL-v19.pdf
⦁ Current version of the Knowledge of language and life in the UK can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/565111/KoLL-v19.pdf
⦁ The Queen’s Speech 2017 : https://www.gov.uk/government/topical-events/queens-speech-2017
Some parts of the Queen's speech may be of interest to migrants, as follows:
Some areas that may be of particular interest to ILPA members are described below, including the proposed Immigration Bill and non-legislative measures on migration.
Brexit
It is proposed that there will be eight Bills to deliver Brexit: a Repeal Bill and separate Bills on immigration, trade, customs, agriculture, fisheries, nuclear safeguards and international sanctions.
The Government states that the Repeal Bill will
⦁ repeal the European Communities Act 1972 and convert EU law into UK law as the UK leaves the EU;
⦁ create temporary powers for Parliament to make secondary legislation, enabling corrections to be made to the laws that do not operate appropriately once the UK has left the EU. It will also allow changes to be made to domestic law to reflect the content of any withdrawal agreement under Article 50;
⦁ replicate the common UK frameworks created by EU law in UK law, and maintain the scope of devolved decision-making powers immediately after exit. This will be a transitional arrangement to provide certainty after exit and allow intensive discussion and consultation with the devolved administrations on where lasting common frameworks are needed.
It proposes that an Immigration Bill will be brought forward:
⦁ To allow the Government to repeal EU law on immigration, primarily free movement, that will be saved and converted into UK law by the Repeal Bill.
⦁ To allow the Government to make the migration of EU nationals and their family members subject to relevant UK law once the UK has left the EU.
The Government states that the Customs Bill will ensure:
⦁ that the UK has a standalone UK customs regime on exit;
⦁ flexibility to accommodate future trade agreements with the EU and others;
⦁ that changes can be made to the UK’s VAT and excise regimes to ensure that the UK has standalone regimes on EU-exit.
A separate Trade Bill would put in place the essential and necessary legislative framework to allow the UK to operate its own independent trade policy upon exit from the European Union.
Courts Bill
The Government proposes a Bill to reform the courts and tribunal system, making better use of technology and modernising working practices. It will include measures to:
⦁ end the direct cross examination of domestic violence victims by their alleged perpetrators in the family courts and extending the use of virtual hearings to victims to participate in trials without meeting their alleged assailant face-to-face.
⦁ enable those charged with some less serious criminal offences to opt to plead guilty, accept a conviction and pay a statutory fixed penalty online and free up court time for more serious cases. Defendants would need to actively opt into this process and could still choose to have their case heard in court instead. The reforms will also introduce digital services which will allow businesses to pursue their cases quickly, enabling them to recover debts more easily.
⦁ provide a better working environment for judges by allowing more leadership positions in the judiciary to be offered on a fixed term, and enabling judges to be deployed more flexibly to improve opportunities for career progression.
The Government expects to make steady state savings to the taxpayer of £226 million once the reforms to make better use of technology and modernising working practices are implemented.
Data Protection Bill
The Government proposes to bring forward a new Data Protection Bill to replace the Data Protection 1998. As data protection is a reserved matter, this would apply throughout the UK. The Bill would include measures to:
⦁ To establish a new data protection regime for non-law enforcement data processing, replacing the Data Protection Act 1998. The new rules strengthen rights and empower individuals to have more control over their personal data, including a right to be forgotten when individuals no longer want their data to be processed, provided that there are no legitimate grounds for retaining it.
⦁ To modernise and update the regime for data processing by law enforcement agencies. The regime will cover both domestic processing and cross-border transfers of personal data.
⦁ To update the powers and sanctions available to the Information Commissioner.
Domestic Violence and Abuse Bill
⦁ To establish a Domestic Violence and Abuse Commissioner, to stand up for victims and survivors, raise public awareness, monitor the response of statutory agencies and local authorities and hold the justice system to account in tackling domestic abuse.
⦁ To define domestic abuse in law to underpin all other measures in the Bill.
⦁ To create a consolidated new domestic abuse civil prevention and protection order regime.
⦁ To ensure that if abusive behaviour involves a child, then the court can hand down a sentence that reflects the devastating life-long impact that abuse can have on the child.
Non-legislative measures (including on migration)
The Government has also set out policy approaches and measures that do not involve primary legislation. On migration, it states:
⦁ The UK is committed to improving the international response to mass movements of refugees and migrants. We want to embed the principle of ‘first safe country’ to encourage migrants to seek protection in the first safe country they can reach and reduce dangerous secondary movements, which threaten migrants’ lives and open them to exploitation.
⦁ We must strengthen international adherence to legal frameworks that distinguish between refugees and economic migrants, so we can provide proper protection for refugees and reap the economic benefits controlled migration can bring while discouraging abuse of the immigration system. All states should maintain the right to control their borders and accept returns of their nationals when they have no right to remain elsewhere.
Other non-legislative measures proposed in the Queen’s speech include:
⦁ a review of counter-terrorism legislation;
⦁ the establishment of a statutory Commission for Countering Extremism;
⦁ a public inquiry into the Grenfell Disaster;
⦁ measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests;
⦁ a review of mental health legislation with a view to future reform and changes in implementation, alongside efforts to make mental health provision a priority for the NHS.
Next steps
The Government’s plans will be debated by both the House of Commons and the House of Lords over the coming days, looking at different subject areas. MPs can table amendments to the speech and the debate concludes with votes on these amendments next week. The Queen’s Speech is voted on by the Commons but rarely in the Lords. As the Government does not have a majority in the House of Commons, it remains to be seen whether the legislative programme will be agreed by parliament as proposed.
⦁ House of Commons' Library briefing paper: International and EU students in higher education in the UK FAQs (CBP-7976) (14 June 2017) : http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7976
⦁ Can a refugee make a Family Reunion Entry Clearance application without a passport ?
Apparently, he/she may, as it is fairly common for those applying under the Family Reunion Route to not have a passport. The applicant needs to request in the his/her cover letter that the Entry Clearance visa be issued on the so-called Uniform Format Form (UFF) as the applicant does not have a passport.
Обратите внимание, что UK BA начал стандартно задерживать рассмотрение всех заявлений на ПМЖ по категории «невеста, жена, муж» британского гражданина/лица с ILR (ПМЖ), если один из заявителей – ребенок. Это происходит потому, что UK BA проиграли судебное дело (“MM”) и теперь должны изменить соответствующие Правила.
На данный момент я столкнулся с задержками в рассмотрении заявления по категории «виза жены британца» уже в 15 недель.
Сколько будут продолжаться задержки в таких рассмотрениях – сказать трудно. К сожалению, даже если заявители (например, мама и ребенок) подадут по системе т.н. ускоренного рассмотрения заявления на ПМЖ за 14 дней, это так же не гарантирует быстрое рассмотрение заявления.
⦁ Importance of completing Section 120 on lodging the appeal
Often the appellants fail to complete the Section 120 while lodging the appeal. This Section 120 is a very important piece of document and must be well think of, as it allows to bring forward (the last stop, so to speak) any remaining or new facts that the appellant wishes to rely upon. The Secretary of State for the Home Department (SSHD) is oblidged to consider the Section 120 at the point of lodging the appeal by the Appellant. Then, if the appellant fails to complete the Section 120 and later attempts to put forward any other new arguments, information ect, the SSHD is unusally not in a position to consider such information/documents.
⦁ Interesting and possible useful decision by the SIJ Ockelton that the child who is not able to get passport form his parents national country is eligible for British passport as stateless. That is, the children from India, as apparently the Indian High Commission refuses to give passport to children of overstayers or who do not have leave to remain in the UK: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1365.html
⦁ Do Irish citizens need to apply for Permanent Residence before they can apply to become British citizens ?
Apparently not, on the basis of Schedule 1, 2A(d) of the BNA 1981, meaning they just have to meet the other requirements of residence and good character etc.
The Immigration Rule 15 states:
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.
⦁ Tier 1 (Entrepreneur) applications for Settlement - the applicants may not need to to provide company accounts to prove investments
As per the UK BA's reply:
Q: Could you confirm that an applicant applying for settlement under the 5 years route Tier 1 (Entrepreneur) does not require to provide company accounts to prove investment as this was provided in the extension application. Appendix A attributes ?
Therefore, the only specified documents in relation to the business would be the employees’ documents and evidence that he remains a director of a business.
UK BA: This is correct. If this information was already provided during the application for last grant of leave it should not be required again. This is with the usual caveat that we cannot pre-assess any part of an application.
⦁ HM Government, The United Kingdom's exit from the European Union: safeguarding the position of EU citizens living in the UK and UK nationals living in the EU, 26 June 2017 : https://www.gov.uk/government/publications/safeguarding-the-position-of-eu-citizens-in-the-uk-and-uk-nationals-in-the-eu
The Government has published its offer for EU citizens in the UK and UK nationals in the EU on their rights and status after the UK leaves the EU. Its summary proposals are below and the full policy paper is attached at the above link.
Summary proposals
1) In the Article 50 negotiations for the United Kingdom (UK) leaving the European Union (EU), our first priority is to reach agreement on the post-exit position of EU citizens1 now living in the UK and of UK nationals 2 living in other EU countries. We will put those citizens first, and do all we can to provide reassurance to the EU citizens who have made the UK their home, and likewise for UK nationals who have done the same in countries across the EU.
2) EU citizens are valued members of their communities here, and we know that UK nationals abroad are viewed in the same way by their host countries.
3) The UK is one of the most tolerant and welcoming places in the world and will remain that way. EU citizens who came to the UK before the EU Referendum, and before the formal Article 50 process for exiting the EU was triggered, came on the basis that they would be able to settle permanently, if they were able to build a life here. We recognise the need to honour that expectation. The choice made in the Referendum was about our arrangements going forward, not about unravelling previous commitments.
4) Over one million UK nationals have moved to other countries in the EU, and many have built their lives there. Their ability to stay, and for life to continue much as it does now, depends on the agreement that is reached between the UK and the EU.
5) Our proposals as set out below are without prejudice to Common Travel Area arrangements between the UK and Ireland (and the Crown Dependencies), and the rights of British and Irish citizens in each others’ countries rooted in the Ireland Act 1949. These arrangements reflect the long-standing social and economic ties between the UK and Ireland and pre-date both countries’ membership of the EU. As such, we want to protect the Common Travel Area arrangements, and Irish citizens residing in the UK will not need to apply for settled status to protect their entitlements. We have also been clear that our exit will in no way impact on the terms of the Belfast Agreement. We will continue to uphold in that context the rights of the people of Northern Ireland to be able to identify as British or Irish, or both, and to hold citizenship accordingly.
6) The Government undertakes to treat EU citizens in the UK according to the principles below, in the expectation that the EU will offer reciprocal treatment for UK nationals resident in its member states:
⦁ until the UK’s exit, while the UK remains a member of the EU, EU citizens resident here will continue to enjoy the rights they have under EU Treaties. We will comply in full with our legal obligations, including in respect of administrative procedures for providing documentation for those exercising Treaty rights;
⦁ after we leave the EU, we will create new rights in UK law for qualifying EU citizens resident here before our exit. Those rights will be enforceable in the UK legal system and will provide legal guarantees for these EU citizens. Furthermore, we are also ready to make commitments in the Withdrawal Agreement which will have the status of international law. The Court of Justice of the European Union (CJEU) will not have jurisdiction in the UK;
⦁ these rights will apply to all EU citizens equally and we will not treat citizens of one member state differently to those of another;
⦁ qualifying EU citizens will have to apply for their residence status. The administrative procedures which they will need to comply with in order to obtain these new rights will be modernised and kept as smooth and simple as possible;
⦁ the application process will be a separate legal scheme, in UK law, rather than the current one for certifying the exercise of rights under EU law. Accordingly we will tailor the eligibility criteria so that, for example, we will no longer require evidence that economically inactive EU citizens have previously held ‘comprehensive sickness insurance’ in order to be considered continuously resident;
⦁ all qualifying EU citizens will be given adequate time to apply for their new residence status after our exit. There will be no cliff-edge at the point of the UK’s withdrawal from the EU;
⦁ we guarantee that qualifying individuals will be granted settled status in UK law (indefinite leave to remain pursuant to the Immigration Act 1971). This means they will be free to reside in any capacity and undertake any lawful activity, to access public funds and services and to apply for British citizenship;
⦁ to qualify, the EU citizen must have been resident in the UK before a specified date and must have completed a period of five years’ continuous residence in the UK before they apply for settled status, at which point they must still be resident;
⦁ those EU citizens who arrived and became resident before the specified date but who have not accrued five years’ continuous residence at the time of the UK’s exit will be able to apply for temporary status in order to remain resident in the UK until they have accumulated five years, after which they will be eligible to apply for settled status;
⦁ those EU citizens who arrived after the specified date will be allowed to remain in the UK for at least a temporary period and may become eligible to settle permanently, depending on their circumstances – but this group should have no expectation of guaranteed settled status;
⦁ family dependants who join a qualifying EU citizen in the UK before the UK’s exit will be able to apply for settled status after five years (including where the five years falls after our exit), irrespective of the specified date. Those joining after our exit will be subject to the same rules as those joining British citizens or alternatively to the post-exit immigration arrangements for EU citizens who arrive after the specified date;
⦁ the ‘specified date’ will be no earlier than the 29 March 2017, the date the formal Article 50 process for exiting the EU was triggered, and no later than the date of the UK’s withdrawal from the EU. We expect to discuss the specified date with our European partners as part of delivering a reciprocal deal; and
⦁ we will apply rules to exclude those who are serious or persistent criminals and those whom we consider a threat to the UK.
7) In relation to benefits, pensions, healthcare, economic and other rights, in the expectation that these rights will be reciprocated by EU member states, the Government intends that:
⦁ EU citizens with settled status will continue to have access to UK benefits on the same basis as a comparable UK national under domestic law;
⦁ EU citizens arriving before the specified date who do not have five years’ residence at the time of the UK’s exit but who remain legally in the UK on a pathway to settled status will continue to be able to access the same benefits that they can access now – (broadly, equal access for workers/the self-employed and limited access for those not working). If these individuals go on to acquire settled status, they will then be able to access benefits on the same terms as comparable UK residents;
⦁ existing rules on the rights of EU citizens and UK nationals to export UK benefits to the EU will be protected for those who are exporting such UK benefits on the specified date, including child benefit, subject to on-going entitlement to the benefit;
⦁ the UK will continue to export and uprate the UK State Pension within the EU;
⦁ the UK will continue to aggregate periods of relevant insurance, work or residence within the EU accrued before exit to help meet the entitlement conditions for UK contributory benefits and State Pension, even where entitlement to these rights may be exercised after exit;
⦁ the UK will seek to protect the healthcare arrangements currently set out in EU Social Security Coordination Regulations and domestic UK law for EU citizens who arrive in the UK before the specified date and for UK nationals living in the EU before the specified date;
⦁ the UK will also seek to protect the ability of individuals who are eligible for a UK European Health Insurance Card (EHIC) before the specified date to continue to benefit from free, or reduced cost, needs-arising healthcare while on a temporary stay in the EU. The UK will seek an ongoing arrangement akin to the EHIC scheme as part of negotiations on our future arrangements with the EU;
⦁ the UK will ensure qualifying EU citizens who arrived in the UK before the specified date will continue to be eligible for Higher Education (HE) and Further Education (FE) student loans and ‘home fee’ status in line with persons with settled status in the UK⦁ 3. Such persons will also be eligible to apply for maintenance support on the same basis they do now;
⦁ to help provide certainty for EU students starting courses as we implement the UK’s exit (including those who are not currently living in the UK), we have already confirmed that current EU students and those starting courses at a university or FE institution in the 2017/18 and 2018/19 academic years, will continue to be eligible for student support and home fee status for the duration of their course. We will also ensure that these students have a parallel right to remain in the UK to complete their course; and
⦁ the UK will seek to ensure that citizens with professional qualifications obtained in the EU27 prior to the UK’s withdrawal from the EU will continue to have those qualifications recognised in the UK (and vice versa).
8) The reciprocal agreement on citizens’ rights will apply to the entire United Kingdom, covering Scotland, Wales, Northern Ireland and all parts of England, and Gibraltar. Decisions that are currently made by the devolved administrations and the Government of Gibraltar will continue to be made by them.
9) Obtaining documentation showing their settled status will enable EU citizens resident here to carry on living here lawfully. Moreover it will help them to demonstrate to employers and other service providers their ongoing rights to be in the UK and to enjoy entitlements to benefits and public services. It will demonstrate (to employers, for example) that the holder continues to enjoy these rights, irrespective of any different migration controls the Government may introduce with regard to newly arriving EU citizens following the UK’s departure from the EU.
10) There is no need for EU citizens to apply now for EU documentation under the free movement rules to prove they are exercising Treaty rights or have a current right of permanent residence in order to secure their status post-exit. Nor will they need to apply for their new British settled status before our exit. However, we are planning to set up an application process before we leave the EU to enable those who wish to do so to get their new status at their earliest convenience. For those who have already obtained a certificate of their permanent residence, we will seek to make sure that the application process for settled status is as streamlined as possible.
11) We will discuss similar arrangements with Iceland, Liechtenstein, Norway and Switzerland (the European Free Trade Association (EFTA) States) on a reciprocal basis.
12) After the UK leaves the EU, free movement will end but migration between the UK and the EU will continue. We will continue to welcome the contribution EU citizens bring to our economy and society; the UK will remain a hub for international talent. The Government is carefully considering a range of options as to how EU migration will work for new arrivals post-exit and will publish proposals as soon as possible, allowing businesses and individuals enough time to plan and prepare.
⦁ Delays in returning original IDs by the UK BA
We have noted that beginning May 2017 the UK BA started systematically failing to return the original IDs when the on-line ROD (Return of Documents) form is used within the advertised target 10 days.
⦁ Not good enough - the Secretary of State criticized by Court of Appeal for “confused” and “messy” legal analysis in deportation case
The Home Office has been criticized by the Court of Appeal for its “confused” and “messy” legal analysis in the matter of Secretary of State for the Home Department v Mosira [2017] EWCA Civ 407. The Secretary of State sought to apply refugee cessation provisions to a non-refugee deportee; rigidly sticking to its increasingly untenable position throughout the proceedings. The individual – a Zimbabwean national – had never in fact been granted refugee status but was bestowed it on a technicality for the purposes of family re-unification. By the time the Secretary of State had realised her errors, it was too late as far as the Court of Appeal was concerned; her appeal was accordingly dismissed.
⦁ Asylum Policy Instruction - Settlement Protection - No longer "automatic" Settlement for refugees...
The UK BA's current settlement policy for refugees (after residing in the UK for a period of 5 years) can be found here: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497326/settlement_protection_v4.0_EXT.pdf
"All those who apply for Settlement protection (=ILR) after completing the appropriate probationary period of limited leave will be subject to a safe return review with reference to the country situation at the date the application is considered. Those who still need protection at that point will normally qualify for Settlement".
The policy means Settlement cannot be obtained by simply completing the form and returning the biometric residence permit to the UK BA (as was possible pre-March 2017), detailed information will need to be provided to demonstrate current rist, based on the country background evidence and case-law, in order to avoid cessation (= revocation of a refugee status and removal from the UK).
⦁ When refugee is no longer a refugee ?
The 1951 Convention relating to the Status of Refugees (‘1951 Convention’) recognizes that Refugee Status ends under certain defined conditions. This means once an individual is determined to be a refugee, their status is maintained unless they fall within the terms of the cessation clauses or their status is cancelled or revoked.
Article 1C of the 1951 Convention sets out the circumstances when the Refugee Convention will no longer apply because an individual no longer needs protection. These circumstances occur when:
- An individual voluntarily re-availed themselves of the protection of the country of nationality
- Having lost his/her nationality, he/she voluntarily reacquired it
- The acquisition of a new nationality and enjoyment of the protection of the county of new nationality
- He/she can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality.
- Being a person who has no nationality he is, because the circumstances in connection with which he has been recognized as a refugee have ceased to exist, able to return to the country of his former habitual residence.