These regulations come into effect on 1 October 2017. They amend the Immigration and Nationality (Fees) Regulations 2017 (SI 2017/515). In particular, the Regulations make provision in respect of the exchange rate which the Home Office is to apply when receiving payments in currencies other than sterling, set out in the new Home Office Exchange Rate Policy. Over the years many have expressed concerns about exchange rates used by the Home Office: the lack of possibility to elect whether to pay a fee in local currency or in sterling and that changes to prices seem to be made rapidly when the exchange rate stops favouring the Home Office and very slowly indeed when it stops favouring an applicant. There is now a published policy on the subject, although it may not provide much comfort: “The model will be updated at least yearly.” There is however, an email to use if you are unhappy: HOExchangeRates@HomeOffice.gsi.gov.uk The changes are a response to the report of the Joint Committee on Statutory Instruments on the Immigration and Nationality (Fees) Regulations 2016, its 25th report of session 2015-2016, HL Paper148 HC 352-xxv of 11 May 2016 https://publications.parliament.uk/pa/jt201516/jtselect/jtstatin/148/148.pdf . Not exactly a rapid response to a report that suggested that charges were ultra vires insofar as they resulted from the discretion conferred by regulation 13 to increase fees over the amount established by the rate of exchange in question. Applicants may have paid fees an element of which was wrongly levied.
Other changes made by the regulations are to address drafting errors and to make changes ‘more clearly to reflect the policy intention’, to remove fees for Tier 2 (Intra-Company Transfer) (Short term staff) but preserve them for the dependants of such staff. The Explanatory Memorandum is obfuscatory, illiterate and unhelpful: “As this instrument is subject to negative resolution procedure and has not been prayed against, consideration as to whether there are other matters of interest to the House of Commons does not arise at this stage.” Not so; it is supposed to be the Explanatory Memorandum that alerts the House to such changes.
Home Office notification of 7 September:
Regulations were laid in Parliament today, Thursday 7 September, which set out a change to the immigration and nationality fees. This change will come into effect on Monday 2 October 2017.
Rate of exchange on immigration applications
Changes are being introduced on how the Home Office calculates exchange rates for overseas visa applications. The new policy, which will benefit customers, uses a new set of exchange rates where payments for UK Visa and Immigration Services are taken in cash or by a bank card in a currency other than Sterling.
The new Home Office Exchange Rate Policy will provide a fairer and more transparent service to customers and will allow them to calculate in advance the cost of their visa application. The exchange rates will be reviewed on a fortnightly basis.
12 September 2017 - Useful Immigration News from the Immigration Lawyers who can help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
⦁ Can a non-working EU spouse of a working EU applicant still apply for Permanent Residence in the UK ?
Apparently yes, provided is the main EU applicant (the spouse) was working in the UK (this does not work with other types of the main applicant's economic activities such as self-employment etc)
⦁ The UK VAC can now only scan the documents/copies which are strictly in the A4 format, including the family (relationship) photos (which, therefore, can be printed on the A4 sized paper)
⦁ Entry Clearance Application overseas vs the applicant's immigration status overseas
28. An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An application for an entry clearance as a visitor or as a short-term student must be made to any post designated by the Secretary of State to accept such applications. Subject to paragraph 28A, any other application must be made to a post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living.
Also from the UK BA :
"2. Applications for other entry clearance
Applications for other types of entry clearance (except for Tier 5) should be made in your country of residence. ‘Country of residence’ might not be your country of origin and refers to wherever you have permission to live, for example for work or study purposes. Many countries issue overseas nationals with residency cards in these circumstances. If you have permission to stay in a country as a visitor for 6 months, for example, you are not a resident.
Where there is no post in the country where you live, you should make the application to the appropriate application post."
13 September 2017 - Useful Immigration News from the Immigration Lawyers who can help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
⦁ Biometric Enrolment Letter for Tier 4 Students
From the 14th September 2017, the Biometric Enrolment Letter (BEL) for students applying from within the UK for the Tier 4 General and Tier 4 Child priority postal and standard routes will be generated automatically online. The letter is currently printed and sent to students by post.
Once generated online, the letter can be immediately downloaded and printed by the student at the same time they print their document checklist. This will help reduce the overall processing time.
The student should then take their Biometric Enrolment Letter to the Post Office to give their fingerprints and photo.
The students should ensure their details are entered correctly in their online application form. In particular:
⦁ their name should be entered exactly as shown in their passport; and
⦁ the student should provide their full address, including their flat or room number.
18 September 2017 - Useful Immigration News from the Immigration Lawyers who can help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
⦁ A responsible adult must have a valid passport when accompanying a child to the biometric enrollment as otherwise the Post Office is likely to refuse to accept the child for the biometric enrollment
⦁ A migrant with a Discretionary Leave may not usually sponsor a spouse form overseas unless that migrant has a Refugee, Settled or is a British citizen
Apparently, yes, they can. The Home Office has been in the news for what one judge described as a “prima facie case of contempt of court.” Officials are reported to have breached multiple orders for the return of asylum seeker Samim Bigzad from Afghanistan to the United Kingdom. Ultimately, though, in legal terms it is Home Secretary Amber Rudd who is responsible for those actions. It is unlikely she personally sanctioned breach of the order.
Britain's immigration officers have been told they are not allowed to sport stubble at work.
Dress code guidance published by the Home Office on Tuesday advised staff that an "unshaven or stubble appearance" is not permitted - although full beards and moustaches are allowed.
Should a worker wish to grow facial hair, they must do so "at a time that minimises the period when you present an unprofessional image," according to the advice.
The Home Office said the rules are specifically for Immigration Enforcement's Criminal and Finance Investigation(CFI) teams, who have a public-facing role. A spokesman for the government department added: "There is no Home Office formal dress code."
Yes, “residence” is the same as “presence”, at least in paragraph 245AAA(a) of the Immigration Rules, says Upper Tribunal Judge Allen. Official headnote:
" (i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.
(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence."
Interesting case in relation to the “integration test” in the Immigration Rules to resist an individual’s removal on human rights grounds. The current rules can in some circumstances require a consideration of whether there would be “very significant obstacles” to an individual’s re-integration in that country if they were to be removed or deported. See the details in the links above
⦁ Leaked immigration document suggests huge rise in European criminal deportation after Brexit
The recently leaked government immigration proposals indicate that European nationals who commit crime in the UK will be subject to the same automatic deportation rules as non-European nationals after Brexit.
The UK Borders Act 2007 imposes a legal duty on the Home Office to bring deportation proceedings against any foreign national convicted of a crime and sentenced to 12 months or more in prison. These are referred to as “automatic deportation”: see section 32 of the UK Borders Act 2007. There is currently an exception for those resident under EU law (section 33(4)) but this will end with Brexit when EU law ceases to apply.
12 month sentences are imposed for a whole range of crimes, including ‘moment of madness’ offences such as getting into a fight in a pub, or on the street, or for breaching an ASBO.
21 September 2017 - Useful Immigration News from the Immigration Lawyers who can help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
⦁ Can an appellant withdraw his/hers appeal and lodge a fresh application instead ?
Apparently, yes, in line with Para 39E :
Exceptions for overstayers
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
⦁ Can the UK BA return the applicant's passport in case the application was refused so the applicant, for example, could take the English language test (for a different application) ?
Apparently, yes. The Home Office has a policy to return passports to allow someone to sit the test. The information can be usually found in the ‘SELT Frequently asked questions document’ dated March 2017. It states:
“What if my passport is held by the Home Office and I don’t have a valid Biometric Residence Permit or EU Identity Card?
You should contact the Home Office to request the return of your passport”.
"...where a migrant has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling off period will not apply".
The Rule:
Para 38.9 of the Tier 2 and 5: guidance for sponsors:
"The cooling off period does not apply where the migrant:
…
was only in the UK as a Tier 2 migrant during the last 12 months for a short period(s) with a CoS which was assigned for 3 months or less. This could be where a migrant:
…
has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling off period will not apply
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of ”fraud, false representation, or concealment of a material fact", the impugned behaviour must be directly material to the decision to grant citizenship.
The UK BA is advancing its formally "Hostile Environment" doctrine. From 2018 the banks will be quarterly checking all 70 000 000 UK accounts to find the accounts held by the illegal migrants.
In some cases it is yet not to late to get legal if you have children and/or partner in the UK. We can help.
Instead of making the forms shorter and to the point the UK BA has appointed the 3rd party agency to tell the applicant on how to complete the on-line based applications. This 3rd party support service will not be able to provide the legal advice, naturally. In other words, this 3rd party will generally be able to tell something like "write you name in the "Your name" box". Very "useful" use of the funds.
The Immigration (EEA) Regulations 2006 are apparently preserved for appeals (or rights of appeal) already commenced on 1 February 2017, which was not the case when the 2006 Regulations replaced the predecessor 2000 Regulations (see MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland[2006] UKAIT 00053).
This Guidance is important in those cases where the Home Office does withdraw a decision once the appeal has been lodged. Official headnote:
(i) The public law character of appeals to the FTT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinized, per rule 17 of the FTT Rules and rule 17 of the Upper Tribunal Rules.
(ii) Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.
(iii) Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.
(iv) Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.
(v) The outcome of the judicial scrutiny should be briefly reasoned.
(vi) Rule 29 of the FTT Rules is confined to the substantive determination of appeals.
(vii) The power of the FTT to set aside a decision under Rule 32 is exercisable only by the FTT President and the Resident Judges.
(viii) In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FtT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.
The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order.
Deception, causation and deprivation of British citizenship : http://www.bailii.org/uk/cases/UKUT/IAC/2017/367.html
In Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) the tribunal considered the question of how directly causative past deception must be of a subsequent grant of British citizenship in order for a person to be deprived of that citizenship on the basis of deception.
The official headnote:
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalization “by means of” fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
29 September 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
⦁ It seems that the UK VAC is not coping with the Appendix FM (Settlement - Spouse, Partner, Fiance(e) etc applications
Applied to have your spouse's Entry Clearance case (spouse of a UK citzien etc) via the so-called UK BA Premium Service (14 days) consideration route ? According to multiple reports, it is not working and the applicants receive the following E-mails from various UK VACs aross the globe:
"Regarding Visa Application: GWFxxxxxxxxxx
For: XXXXX X XXXXXXX
Thank you for applying for a UK visa. Your visa application has been received and is under consideration. We aim to process non settlement applications within 15 working days (unless you have opted for the Priority Visa service), and settlement applications within 60 working days.
Unfortunately, the processing of your application has not been straightforward and we will be unable to decide your application within our customer service targets. We are continuing to work on your application and aim to make a decision as soon as possible.
We will write to you again if there is any change to this. Please do not attend the Visa Application Centre until you have been advised that your application has been decided and that your passport is ready for collection.
Home Office guidance on the documents required and processes for returning immigration offenders to their country of origin.
⦁ Same day premium service FLR(FP) applications from overstayers/irregular migrants
It has ben reported that an FLR(FP) application by an overstayer/irregular migrant was successful when lodged via the PSC, despite the PSC taking some 30 days to decide on the application. NB The postal FLR(FP) application from an overstayer/irregular migrant is taking about 12 months on average.
09 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
• Home Office in breach of law over permanent residence waiting times
The Home Office has broken the law by failing to publish the waiting times faced by EU citizens trying to get residence documents.
The Information Commissioner ruled that Amber Rudd’s department is in breach of the Freedom of Information Act, having sat on the request for seven months and counting.
In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children.
While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC).
In Secretary of State for the Home Department v KE (Nigeria) [2017] EWCA Civ 382, the Court of Appeal tackled
the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights… to deport him.
The case is also a good example of what can be considered “very compelling circumstances” in deportation cases.
The claimant in SSWP v NZ (ESA) [2017] UKUT 0360 (AAC) is a Polish national who worked in a chip shop. On 4 September 2017, the Upper Tribunal released a third interim decision in the case, relating to a very specific issue: had the UK derogated from Article 17 of Directive 2004/38 by the Accession (Immigration and Worker Registration) Regulations 2004?
The following point is very important as in some cases the non-EEA nationals may not acquire the Permanent Residence status in the UK if the following points are not met:
“Non-EEA national family members of dual EEA and British citizens
This section tells you about family members of ‘dual nationals’, British citizens who are also nationals of other European Economic Area (EEA) member states.
British citizens who are also nationals of other EEA member states are not considered to be ‘EEA nationals’ for the purposes of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations). This applies whether or not the dual national has always resided in the UK.
A family member of a dual national does not have a right of residence under the regulations on the basis of their relationship to the dual national.
If they do not have a right of residence on any other basis under the 2016 regulations, they will need leave to enter or remain in the UK under the Immigration Rules.
Transitional arrangements
Transitional arrangements were put in place following amendments to the regulations in July 2012, which allowed family members of dual nationals who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met.
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual nationals, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
This arrangement also applies where a person had a right of residence on this basis on 16 July 2012 and had submitted an application for a document confirming this right on or before 16 October 2012.
Such persons will continue to have a right where a document was subsequently issued on the basis of this application.
Persons who had applied for an EEA family permit before 16 July 2012
A person who submitted an application for an EEA family permit as the family member of a dual national before 16 July 2012 will continue to be treated as the family member of an EEA national if both:
• the application resulted in an EEA family permit being issued (including where this document was issued following a successful appeal)
• the applicant travelled to the UK within the 6 month validity period of that EEA family permit
If the family member of a dual British citizen and EEA national meets the conditions
above, they will continue to be treated as the family member of an EEA national for
as long as they continue to be the family member of that dual national.
Anyone who falls within the transitional arrangements on the basis of an EEA family permit application does not need to apply for further confirmation of a right of residence in the UK.
For further information, see the Court of Justice of the European Union (CJEU) judgment in McCarthy (C-434/09)”
Важная информация для партнеров т.н. Dual Nationals (EU & UK)
Важная информация для тех, кто находится в Великобритании как супрг(и)/партнеры граждан EU и у кого эти граждане EU так же получили британское гражданство.
Возможно, вы не сможете получить Permanent Residence и даже продлить 5-и летний EEA Residence Permit, и поэтому возможно нужно будет переходить на визу "супруга(и) гражданина/гражданки" Великобритании :
What happens if you are a non-EEA national of a dual (EU and UK) partner in the UK ?
The following point is very important as in some cases the non-EEA nationals may not acquire the Permanent Residence status in the UK if the following points are not met:
“Non-EEA national family members of dual EEA and British citizens
This section tells you about family members of ‘dual nationals’, British citizens who are also nationals of other European Economic Area (EEA) member states.
British citizens who are also nationals of other EEA member states are not considered to be ‘EEA nationals’ for the purposes of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations). This applies whether or not the dual national has always resided in the UK.
A family member of a dual national does not have a right of residence under the regulations on the basis of their relationship to the dual national.
If they do not have a right of residence on any other basis under the 2016 regulations, they will need leave to enter or remain in the UK under the Immigration Rules.
Transitional arrangements
Transitional arrangements were put in place following amendments to the regulations in July 2012, which allowed family members of dual nationals who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met.
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual nationals, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
This arrangement also applies where a person had a right of residence on this basis on 16 July 2012 and had submitted an application for a document confirming this right on or before 16 October 2012.
Such persons will continue to have a right where a document was subsequently issued on the basis of this application.
Persons who had applied for an EEA family permit before 16 July 2012
A person who submitted an application for an EEA family permit as the family member of a dual national before 16 July 2012 will continue to be treated as the family member of an EEA national if both:
• the application resulted in an EEA family permit being issued (including where this document was issued following a successful appeal)
• the applicant travelled to the UK within the 6 month validity period of that EEA family permit
If the family member of a dual British citizen and EEA national meets the conditions above, they will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
Anyone who falls within the transitional arrangements on the basis of an EEA family permit application does not need to apply for further confirmation of a right of residence in the UK.
For further information, see the Court of Justice of the European Union (CJEU) judgment in McCarthy (C-434/09)”
Возможно хорошая новость (решение не встпутило в силу):
At the same time 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: http://curia.europa.eu/juris/documen...t=1&cid=747813
NB2 Если читать внимательно, то вышеуказанный Guidance относится в ситуации, когда БРИТАНЕЦ так же имеет EU гражданство, в этом случае, а не когда гражданин EU становится британцем.
Тем не менее, UK BA выдвет отказы и в последних случаях, "прикрываюсь" решение по делу McCarthy.
В общем, надежда на дело Lunes, т.к. начали появляться "отказы" по ситуации, когда к EU приезжает Non-EEA и получает 5-и летний EEA Residence Permit, потом EU получает гражданство и через х лет non-EEA подает на Permanent Residence и получает "отказ" (фактически UK BA не отказывает а делает еще хуже - вчера видел просто письмо из UK BA о том, что заявение non-EEA "is treated as withdrawn.... with no right of appeal".
14 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
• People with the Derivative Rights of Residence (“Zambrano” etc) may not be able to apply for Permanent Residence/Settlement in the UK, according to the UK BA
According to the Head of the Family Policy at the UK BA, the time spent with a Derivative Right of Residence will not count for the purposes of qualifying for indefinite leave to remain under the Immigration Rules on long residence.
“…there is no provision in the Immigration Rules for time spent in the UK with a right of residence under the 2016 Regulations to be counted as lawful residence for the purposes of the Rules on long residence…”
This is a disappointing news as it is hard to imagine how the people in this category may obtain Settlement in the UK at all ? The situation is likely to bring a number of legal challenges.
• News from the UK BA Sheffield – Settlement applications (helps to understand applicants of which countries need to either send their documents to Sheffield or whether the applications will be scanned at a particular Visa Application Centre (UK VAC)
“WHAT IS COVERED BY THIS UK DECISION MAKING CENTRE?
This UK Decision Making Centre currently deals with settlement applications lodged in:
• Afghanistan
• Canada
• Caribbean
• Nigeria
• Pakistan
• Tunisia
• Morocco
• Cameroon
• Gambia
• Ghana
• Senegal
• Sierra Leone
• Russia
• The United States of America
• India (non Priority only)
• Delhi, Chennai, Mumbai (Priority and non Priority)
• Sri Lanka (non Priority only)
• Minsk
• Paris
• Australia
• Egypt (Alexandria)
• China
• Japan (Tokyo and Osaka)
• South Korea (Seoul)
• Philippines
• Taiwan (Taipei)
• Brunei
• Mongolia
• Nepal
• Bhutan
• Bangladesh
• Thailand
• Hong Kong
• Malaysia
• New Zealand
This UK Decision Making Centre currently also processes all applications submitted at:
• Victoria Island Visa Application Centre in Lagos, Nigeria.
• Visa Application Centres in Freetown, Sierra Leone, Banjul, Gambia, Yaounde, Cameroon, Dakar, Senegal and Abidjan, Ivory Coast, Indonesia, Pune, Dusseldorf, Madrid, Geneva, Dublin and Rome”
Most recent case-law
• Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC)
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of”fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
• R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC)
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
Use this form if you are already in the UK with temporary permission to stay and want to extend your stay on the basis that you have lived here legally for many years.
16 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
• People with the Derivative Rights of Residence (“Zambrano” etc) may not be able to apply for Permanent Residence/Settlement in the UK, according to the UK BA
According to the Head of the Family Policy at the UK BA, the time spent with a Derivative Right of Residence will not count for the purposes of qualifying for indefinite leave to remain under the Immigration Rules on long residence.
“…there is no provision in the Immigration Rules for time spent in the UK with a right of residence under the 2016 Regulations to be counted as lawful residence for the purposes of the Rules on long residence…”
This is a disappointing news as it is hard to imagine how the people in this category may obtain Settlement in the UK at all ? The situation is likely to bring a number of legal challenges.
• News from the UK BA Sheffield – Settlement applications (helps to understand applicants of which countries need to either send their documents to Sheffield or whether the applications will be scanned at a particular Visa Application Centre (UK VAC)
“WHAT IS COVERED BY THIS UK DECISION MAKING CENTRE?
This UK Decision Making Centre currently deals with settlement applications lodged in:
• Afghanistan
• Canada
• Caribbean
• Nigeria
• Pakistan
• Tunisia
• Morocco
• Cameroon
• Gambia
• Ghana
• Senegal
• Sierra Leone
• Russia
• The United States of America
• India (non Priority only)
• Delhi, Chennai, Mumbai (Priority and non Priority)
• Sri Lanka (non Priority only)
• Minsk
• Paris
• Australia
• Egypt (Alexandria)
• China
• Japan (Tokyo and Osaka)
• South Korea (Seoul)
• Philippines
• Taiwan (Taipei)
• Brunei
• Mongolia
• Nepal
• Bhutan
• Bangladesh
• Thailand
• Hong Kong
• Malaysia
• New Zealand
This UK Decision Making Centre currently also processes all applications submitted at:
• Victoria Island Visa Application Centre in Lagos, Nigeria.
• Visa Application Centres in Freetown, Sierra Leone, Banjul, Gambia, Yaounde, Cameroon, Dakar, Senegal and Abidjan, Ivory Coast, Indonesia, Pune, Dusseldorf, Madrid, Geneva, Dublin and Rome”
Most recent case-law
• Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC)
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of”fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
• R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC)
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
Use this form if you are already in the UK with temporary permission to stay and want to extend your stay on the basis that you have lived here legally for many years.
Modernized guidance for how UK Visas and Immigration considers applications under the Tier 5 (Youth Mobility Scheme) category of the points-based system.
(i) A proposal by a Tier 1 Entrepreneur applicant who operates an existing business to use part of the prescribed minimum finance of £200,000 to purchase a second business for the purpose of developing and expanding the existing enterprise is compatible with paragraph 245 of the Immigration Rules.
(ii) An immigration interview may be unfair, thereby rendering the resulting decision unlawful, where inflexible structural adherence to prepared questions excludes the spontaneity necessary to repeat or clarify obscure questions and/or to probe or elucidate answers given.
• The case of Sala is now overturned at the Court of Appeal. Briefly, the expended family members’ rights do come under the EEA Regulations, thankfully
• High Court defeat for Home Office over torture policy : www.medicaljustice.org.uk/wp-content/uploads/2017/10/CO-5386-2017_Medical_Justice_v-_SSHD-Approved_Judgment.pdf
The Home Office has lost a judicial review over its controversial change to the definition of torture in a claim brought by unlawfully detained torture victims.
19 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
• Varying immigration applications (that is, submitting one application and then changing it for another type of the application)
What happens if one needs to submit, say, an extension of the UK Spouse visa application yet for some reason the financial requirement is not met, such as there are only, say, 4 months wage slips out of the required 6?
The application FLR(FP) does not require the prescribed level of income under the Appendix FM, so one can write a cover letter and explain the reasons as to why the application FLR(FP) is lodged instead of the application FLR(M). Also, when the other 2 months wage slips become available, one can then vary the application to FLR(M) provided the UK BA did not decide the application before. The UK BA may grant further leave under the FLR(M) route yet in some cases they may refuse the grant of the FLR(M) (5 year route to Settlement) and instead grant further leave to remain purely on the basis of the FLR(FP) application = 10 year route or even refuse the application arguing that the ‘date of application’ (relevant for the 6 months of evidence prior to date of application under appendix FM) was date of initial FLR (FP) application. The refusal may be appealed and allowed by the Immigration Judge establishing that the effective ‘date of application’ was the date of variation rather than the date of the initial FLR(FP) application.
The argument in the above appeal scenario may be a common sense argument relying on the case of Qureshi (Tier 4 – effect of variation – App C) Pakistan [2011] UKUT 00412 (IAC) and arguing that the ratio should apply to any application not just Tier 4.
That means that if you are still considering to apply for Permanent Residence, Registration Certificate etc rather later than sooner, you may need to think again.
• UK BA Premium Service Centres appointments usually become available no earlier than 6 weeks before the desired appointment date
The case seems to pose a novel difficulty: should a claim by a person who would exercise their religion in utter privacy be accepted? These are not readily answered by HJ (Iran), which dealt with concealment of identity. In light of this distinction, a revisiting by the Supreme Court of the issue may be constructive.
• Home Office: a stroke is not “exceptional circumstances”
An ex-soldier who struggles to walk, speak or perform basic household tasks following a stroke has been told that he must look after his children without their Philippine national mother because these do not constitute “exceptional circumstances” in the eyes of the Home Office.
26 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
- The Republic of Ireland citizens have Settled status by default ?
Yes, they have, yet it is worth remembering that this is applicable IF :
S50A(5) of the 1981 Act states:
(5)For the purposes of subsection (4)(d), a person has a qualifying CTA entitlement if the person—
(a)is a citizen of the Republic of Ireland,
(b)last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
(c)on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).
- Detained immigrants appeals – no Case Management Reviews (CMRs) ?
According to the Harmondsworth First Tier Tribunal (FTT), the CMRs and the Pre-Hearing Reviews are not listed for detained immigration appeals. That means the detainees appeals may be listed to proceed to a full hearing, without a Case Management Review hearing or a Pre-Hearing Review.
- Can a Permanent Residence (EEA(PR)) application be downgraded to grant of a Residence Certificate ?
Apparently, it can. According to the UK BA, if an applicant applies for a Permanent Residency and does not qualify but does meet the criteria for a Registration Certificate the UK BA will contact the applicant and offer him/her the alternative product. Unfortunately, the UK BA cannot do this automatically as they need the applicant’s permission to vary the application and cannot give the applicant a (lesser) product they did not apply for without the applicant's explicit consent. The UK BA can only make one attempt at contact because of pressure of time, but usually where a customer has a representative, that contact should be successful. If the UK BA are unable to contact the applicant the UK BA will refuse Permanent Residence, but explain the reasons in the letter.
- EEA Applications – Issue of the Certificates of Application (CoA) timing
According to the UK BA, now the CoAs are issued on the 4th day after the applicant's biometric enrolment
Note that the NHS-funded assisted conception services will NOT be included in the exemption from charge applicable to people who are caught within surcharge arrangements:
Section 7.39:
"From 21 August 2017, NHS-funded assisted conception services will not be included in the exemption from charge applicable to people who are caught within surcharge arrangements (i.e. those who have paid the surcharge, or who are exempt from paying it (with certain exceptions) or in respect of whom it has been waived). This means that, unless another exemption applies, where NHS assisted conception services are provided to a person who is exempt under surcharge arrangements, overseas visitor charges will apply. This is brought forward through regulations 11, 12 and 13 of this instrument, which insert a new regulation (9A) and amend regulation 10 and 11 respectively.".
30 October 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
What is the PEO application date vs Entry Clearance application vs UK BA Postal application date ?
1) The date of the PEO (same day service application at the UK BA PEO) application is be the date the application is submitted at the PEO, and not the date of booking an appointment. The paragraph 34G (ii) applies.
2) The Entry Clearance (EC; application to come to the UK) application date is usually the date the application fee is paid
3) The UK BA Postal application date is the date either :
- Royal Mail delivery – the date the application was posted by the applicant
- Courier delivery – the date the courier delivered the application to the UK BA
Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union (CJEU) joined cases of B v Land Baden-Württemberg C-316/16 and Secretary of State for the Home Department v Franco Vomero C-424/16.
The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion.
>Home Secretary Amber Rudd announces review of Immigration Rules
The Home Secretary, Amber Rudd, has announced that the Law Commission will conduct a review of the Immigration Rules. The review came to light in Rudd’s oral evidence to the Home Affairs Select Committee on 17 October but Law Commission staff had already begun meetings before then.
At question 84, Rudd was asked about the complexity of the rules. She replied:
“I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they can’t apply.”
V>Visa rules confusion forces successful entrepreneurs to leave UK
In 2011, Russell and Ellen Felber set up the award-winning Torridon Guest House in Inverness. It has hundreds of stellar reviews across TripAdvisor and similar sites. The New Yorkers made their home in the Highlands having fallen in love with the area during a holiday there, initially spending £300,000 to purchase the guesthouse, and a further £100,000 on its refurbishment.
Now the Felbers must leave Scotland and everything they have built. Their application for settlement was refused by the Home Office following an alleged misreading by the couple (and their solicitor) of the requirements of the entrepreneur job creation rules. That decision was upheld last week in Felber & Anor v SSHD [2017] ScotCS CSOH 130 in the Scottish Outer Court of Session.
The only basis of the refusal was that, during the two-year extension period of his leave, Mr Felber had not satisfied the Tier 1 (Entrepreneur) job creation requirement. The Secretary of State accepted that he had satisfied this requirement during the initial three years.
02 November 2017 - Useful Immigration News from the Immigration Lawyers who can help you - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
New UK Visas and Immigration Guidance - November 2017 - Обновилось достаточно больше количество т.н. Guidance Notes по разным иммиграционным категориям:
03 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
>>> Do Irish citizen need to apply for Permanent Residence Card (PRC) before they can apply for Naturalization as British citizens ?
No, according to the UK BA:
“The position of Irish citizens is different to that of other EEA nationals. Irish citizens are not normally subject to any form of immigration control on arrival in the UK because of Ireland’s inclusion in the Common Travel Area. This means that they are treated as free of immigration time restrictions for naturalisation purposes. They do not therefore need to apply for a PRC before applying for naturalisation ”
>>> How to add a child born in the UK to the parent’s refugee claim ?
One can write a letter, including the child’s birth certificate and parents documents to : Leave in Line Team, CCWD, 7th Floor, OLCU 21, The Capital, Old Hall Street
Liverpool, L3 9PP
Information and guidance on handling visa applications made outside the UK.
>>> Can a postal application be varied (changed to and processed) via the same day (PEO/PSC) service ?
In fact, it can be. The PEO usually holds the application and requests the passport to check stamps and then the applicant normally receives a decision in a few weeks time.
06 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
Immigration appeal waiting times rise 13%, now take a year on average
The average immigration appeal takes almost 12 months to be resolved, up 13% on the same period last year.
This is despite the fact that less than half as many people now have the chance to challenge Home Office decisions. The number of appeals handled by the immigration tribunal has fallen from around 20,000 to 8,000 – a startling 60% fall – since the Immigration Act 2014 was passed.
Appeal waiting times continue to rise
Immigration and asylum appeals at the First-tier Tribunal took 51 weeks to be resolved in April-June 2017 – the latest period for which data is available – according to the Ministry of Justice. That represents an increase of seven weeks on the same period last year.
> Appendix FM Applications (“spouses of UK citizens”) - savings
Please note that if you are relying upon the savings option, your sponsor now (recent change) also needs to provide a signed (additional) declaration letter confirming the source of funds.
07 November 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
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⦁ The Immigration and Nationality (Fees) (Amendment) Regulations 2017 (SI 2017/885) (8 September 2017) : https://www.gov.uk/government/publications/exchange-rate-policy and http://www.legislation.gov.uk/uksi/2017/885/note/made
These regulations come into effect on 1 October 2017. They amend the Immigration and Nationality (Fees) Regulations 2017 (SI 2017/515). In particular, the Regulations make provision in respect of the exchange rate which the Home Office is to apply when receiving payments in currencies other than sterling, set out in the new Home Office Exchange Rate Policy. Over the years many have expressed concerns about exchange rates used by the Home Office: the lack of possibility to elect whether to pay a fee in local currency or in sterling and that changes to prices seem to be made rapidly when the exchange rate stops favouring the Home Office and very slowly indeed when it stops favouring an applicant. There is now a published policy on the subject, although it may not provide much comfort: “The model will be updated at least yearly.” There is however, an email to use if you are unhappy: HOExchangeRates@HomeOffice.gsi.gov.uk The changes are a response to the report of the Joint Committee on Statutory Instruments on the Immigration and Nationality (Fees) Regulations 2016, its 25th report of session 2015-2016, HL Paper148 HC 352-xxv of 11 May 2016 https://publications.parliament.uk/pa/jt201516/jtselect/jtstatin/148/148.pdf . Not exactly a rapid response to a report that suggested that charges were ultra vires insofar as they resulted from the discretion conferred by regulation 13 to increase fees over the amount established by the rate of exchange in question. Applicants may have paid fees an element of which was wrongly levied.
Other changes made by the regulations are to address drafting errors and to make changes ‘more clearly to reflect the policy intention’, to remove fees for Tier 2 (Intra-Company Transfer) (Short term staff) but preserve them for the dependants of such staff. The Explanatory Memorandum is obfuscatory, illiterate and unhelpful: “As this instrument is subject to negative resolution procedure and has not been prayed against, consideration as to whether there are other matters of interest to the House of Commons does not arise at this stage.” Not so; it is supposed to be the Explanatory Memorandum that alerts the House to such changes.
Home Office notification of 7 September:
Regulations were laid in Parliament today, Thursday 7 September, which set out a change to the immigration and nationality fees. This change will come into effect on Monday 2 October 2017.
Rate of exchange on immigration applications
Changes are being introduced on how the Home Office calculates exchange rates for overseas visa applications. The new policy, which will benefit customers, uses a new set of exchange rates where payments for UK Visa and Immigration Services are taken in cash or by a bank card in a currency other than Sterling.
The new Home Office Exchange Rate Policy will provide a fairer and more transparent service to customers and will allow them to calculate in advance the cost of their visa application. The exchange rates will be reviewed on a fortnightly basis.
⦁ Brexit: beyond the highly skilled – the needs of other economic stakeholders : http://appgmigration.org.uk/wp-content/uploads/2017/09/APPG-on-Migration-Brexit_Beyond-the-highly-skilled-report-Sept-2017.pdf
⦁ Can a non-working EU spouse of a working EU applicant still apply for Permanent Residence in the UK ?
Apparently yes, provided is the main EU applicant (the spouse) was working in the UK (this does not work with other types of the main applicant's economic activities such as self-employment etc)
⦁ The UK VAC can now only scan the documents/copies which are strictly in the A4 format, including the family (relationship) photos (which, therefore, can be printed on the A4 sized paper)
⦁ Entry Clearance Application overseas vs the applicant's immigration status overseas
28. An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application. An application for an entry clearance as a visitor or as a short-term student must be made to any post designated by the Secretary of State to accept such applications. Subject to paragraph 28A, any other application must be made to a post in the country or territory where the applicant is living which has been designated by the Secretary of State to accept applications for entry clearance for that purpose and from that category of applicant. Where there is no such post the applicant must apply to the appropriate designated post outside the country or territory where he is living.
Also from the UK BA :
"2. Applications for other entry clearance
Applications for other types of entry clearance (except for Tier 5) should be made in your country of residence. ‘Country of residence’ might not be your country of origin and refers to wherever you have permission to live, for example for work or study purposes. Many countries issue overseas nationals with residency cards in these circumstances. If you have permission to stay in a country as a visitor for 6 months, for example, you are not a resident.
Where there is no post in the country where you live, you should make the application to the appropriate application post."
⦁ Biometric Enrolment Letter for Tier 4 Students
From the 14th September 2017, the Biometric Enrolment Letter (BEL) for students applying from within the UK for the Tier 4 General and Tier 4 Child priority postal and standard routes will be generated automatically online. The letter is currently printed and sent to students by post.
Once generated online, the letter can be immediately downloaded and printed by the student at the same time they print their document checklist. This will help reduce the overall processing time.
The student should then take their Biometric Enrolment Letter to the Post Office to give their fingerprints and photo.
The students should ensure their details are entered correctly in their online application form. In particular:
⦁ their name should be entered exactly as shown in their passport; and
⦁ the student should provide their full address, including their flat or room number.
⦁ The current UK BA Long Residence (Settlement) Guidance can be found here : https://www.gov.uk/government/publications/long-residence?utm_source=FM+master+list&utm_campaign=9bbbe3cc0b-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_792133aa40-9bbbe3cc0b-116194677&mc_cid=9bbbe3cc0b&mc_eid=1af5cd4d48
Note the requirements for Settlement in case where part of the 10 year Long Residence were in line with the EEA Regulations
⦁ Can a parent of a child with limited leave only qualify for a grant of leave outside the rules?
Apparently not, because Article 8 ‘outside the rules’ has now entered the Immigration Rules at paras Gen.3.2 and Gen.3.3. of the Appendix FM.
⦁ Guidance ECB05: where to apply, the policy : https://www.gov.uk/government/publications/where-to-apply-ecb05/ecb5-where-to-apply-the-policy
Detail on applications for short-term visas and EEA family permits and applications for other entry clearance
⦁ A responsible adult must have a valid passport when accompanying a child to the biometric enrollment as otherwise the Post Office is likely to refuse to accept the child for the biometric enrollment
⦁ A migrant with a Discretionary Leave may not usually sponsor a spouse form overseas unless that migrant has a Refugee, Settled or is a British citizen
⦁ Can the Home Secretary really be guilty of contempt of court for breach of a court order ? : http://www.independent.co.uk/news/uk/home-news/samim-bigzad-afghanistan-asylum-seeker-plane-fly-kabul-uk-returned-back-home-office-legal-court-a7950866.html
Apparently, yes, they can. The Home Office has been in the news for what one judge described as a “prima facie case of contempt of court.” Officials are reported to have breached multiple orders for the return of asylum seeker Samim Bigzad from Afghanistan to the United Kingdom. Ultimately, though, in legal terms it is Home Secretary Amber Rudd who is responsible for those actions. It is unlikely she personally sanctioned breach of the order.
⦁ Stubble banned at work for Home Office immigration officers : http://www.telegraph.co.uk/news/2017/09/13/stubble-banned-work-home-office-immigration-officers/
Britain's immigration officers have been told they are not allowed to sport stubble at work.
Dress code guidance published by the Home Office on Tuesday advised staff that an "unshaven or stubble appearance" is not permitted - although full beards and moustaches are allowed.
Should a worker wish to grow facial hair, they must do so "at a time that minimises the period when you present an unprofessional image," according to the advice.
The Home Office said the rules are specifically for Immigration Enforcement's Criminal and Finance Investigation(CFI) teams, who have a public-facing role. A spokesman for the government department added: "There is no Home Office formal dress code."
⦁ Is “residence” the same as “presence” in the Immigration Rules ? : http://www.bailii.org/uk/cases/UKUT/IAC/2017/76.html ?
Yes, “residence” is the same as “presence”, at least in paragraph 245AAA(a) of the Immigration Rules, says Upper Tribunal Judge Allen. Official headnote:
" (i) On a proper construction of paragraph 245AAA(a)(i) of HC 395, an absence from the United Kingdom for a period of more than 180 days in one of the relevant 12 month periods will entail a failure to satisfy the requirements of paragraph 245CD.
(ii) The term ‘residence’ in paragraph 245AAA(a) is to be equated to presence."
⦁ Human rights, long residence and the integration test in the Court of Appeal : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1284.html
Interesting case in relation to the “integration test” in the Immigration Rules to resist an individual’s removal on human rights grounds. The current rules can in some circumstances require a consideration of whether there would be “very significant obstacles” to an individual’s re-integration in that country if they were to be removed or deported. See the details in the links above
⦁ Leaked immigration document suggests huge rise in European criminal deportation after Brexit
The recently leaked government immigration proposals indicate that European nationals who commit crime in the UK will be subject to the same automatic deportation rules as non-European nationals after Brexit.
The UK Borders Act 2007 imposes a legal duty on the Home Office to bring deportation proceedings against any foreign national convicted of a crime and sentenced to 12 months or more in prison. These are referred to as “automatic deportation”: see section 32 of the UK Borders Act 2007. There is currently an exception for those resident under EU law (section 33(4)) but this will end with Brexit when EU law ceases to apply.
12 month sentences are imposed for a whole range of crimes, including ‘moment of madness’ offences such as getting into a fight in a pub, or on the street, or for breaching an ASBO.
⦁ Can an appellant withdraw his/hers appeal and lodge a fresh application instead ?
Apparently, yes, in line with Para 39E :
Exceptions for overstayers
39E. This paragraph applies where:
(1) the application was made within 14 days of the applicant’s leave expiring and the Secretary of State considers that there was a good reason beyond the control of the applicant or their representative, provided in or with the application, why the application could not be made in-time; or
(2) the application was made:
(a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
(b) within 14 days of:
(i) the refusal of the previous application for leave; or
(ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
(iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
(iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
⦁ Can the UK BA return the applicant's passport in case the application was refused so the applicant, for example, could take the English language test (for a different application) ?
Apparently, yes. The Home Office has a policy to return passports to allow someone to sit the test. The information can be usually found in the ‘SELT Frequently asked questions document’ dated March 2017. It states:
“What if my passport is held by the Home Office and I don’t have a valid Biometric Residence Permit or EU Identity Card?
You should contact the Home Office to request the return of your passport”.
You can find this document at: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests.
⦁ Check your visa or immigration application status on the UK BA web-site via this link : https://contact-ukvi.homeoffice.gov.uk/app/visa_application/checkvisastatus";
⦁ UK BA clarifies on the cooling of period :
"...where a migrant has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling off period will not apply".
The Rule:
Para 38.9 of the Tier 2 and 5: guidance for sponsors:
"The cooling off period does not apply where the migrant:
…
was only in the UK as a Tier 2 migrant during the last 12 months for a short period(s) with a CoS which was assigned for 3 months or less. This could be where a migrant:
…
has had more than one period of Tier 2 leave in the last 12 months and each CoS was assigned for less than 3 months, even where they may total over 3 months, the cooling off period will not apply
Recent case-law
⦁ R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC) (18 September 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-369
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
⦁ Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC) (19 September 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-367
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of ”fraud, false representation, or concealment of a material fact", the impugned behaviour must be directly material to the decision to grant citizenship.
⦁ UK Visas and Immigration Guidance - Detention and reporting (asylum instructions) : https://www.gov.uk/government/collections/detention-and-reporting-asylum-instructions
⦁ UK Visas and Immigration Guidance - Asylum claims in detention : https://www.gov.uk/government/publications/asylum-claims-in-detention
⦁ UK banks to check 70m bank accounts in search for illegal immigrants : https://www.theguardian.com/uk-news/2017/sep/21/uk-banks-to-check-70m-bank-accounts-in-search-for-illegal-immigrants
The UK BA is advancing its formally "Hostile Environment" doctrine. From 2018 the banks will be quarterly checking all 70 000 000 UK accounts to find the accounts held by the illegal migrants.
In some cases it is yet not to late to get legal if you have children and/or partner in the UK. We can help.
- Deprivation and nullity of the UK citizenship Guidance : https://www.gov.uk/government/publications/deprivation-and-nullity-of-british-citizenship-nationality-policy-guidance
- Further funds wasting from the UK BA - Assisted Digital service for online immigration applications : https://www.gov.uk/government/publications/assisted-digital-uk-visas-and-immigration/assisted-digital-uk-visas-and-immigration
Instead of making the forms shorter and to the point the UK BA has appointed the 3rd party agency to tell the applicant on how to complete the on-line based applications. This 3rd party support service will not be able to provide the legal advice, naturally. In other words, this 3rd party will generally be able to tell something like "write you name in the "Your name" box". Very "useful" use of the funds.
- Immigration (EEA) Regulations 2006 continue to apply for appeals according to the Tribunal : http://www.bailii.org/uk/cases/UKUT/IAC/2017/165.html
The Immigration (EEA) Regulations 2006 are apparently preserved for appeals (or rights of appeal) already commenced on 1 February 2017, which was not the case when the 2006 Regulations replaced the predecessor 2000 Regulations (see MG and VC (EEA Regulations 2006; “conducive” deportation) Ireland[2006] UKAIT 00053).
- Further guidance from Upper Tribunal on withdrawal of immigration appeals : http://www.bailii.org/uk/cases/UKUT/IAC/2017/295.html
This Guidance is important in those cases where the Home Office does withdraw a decision once the appeal has been lodged. Official headnote:
(i) The public law character of appeals to the FTT is reflected in the regulatory requirement governing the withdrawal of appeals that any proposed withdrawal of an appeal must contain the reasons for the course mooted and must be judicially scrutinized, per rule 17 of the FTT Rules and rule 17 of the Upper Tribunal Rules.
(ii) Judicial evaluation of both the withdrawal of an appellant’s appeal and the withdrawal of the Secretary of State’s case or appeal is required.
(iii) Every judicial determination of an appellant’s proposal to withdraw an appeal or the Secretary of State’s proposal to withdraw requires a brief outline of the reasons for the decision. The purpose of the judicial scrutiny is to ensure that the appeal is being properly and correctly withdrawn.
(iv) Judicial scrutiny will normally result in the mooted withdrawal of the appeal being perfected by transmission of the notice to the parties required by Rule 17(iii). However, this will not occur automatically: for example where the proposed withdrawal lacks coherence or is based on a clear material misunderstanding or misconception.
(v) The outcome of the judicial scrutiny should be briefly reasoned.
(vi) Rule 29 of the FTT Rules is confined to the substantive determination of appeals.
(vii) The power of the FTT to set aside a decision under Rule 32 is exercisable only by the FTT President and the Resident Judges.
(viii) In cases where an unsuccessful appellant has a choice, best practice dictates that an application to set aside the impugned decision of the FtT under Rule 32 be first exhausted in advance of the lodgement of an application for permission to appeal to the Upper Tribunal. Where both species of challenge are lodged simultaneously, it will be sensible to assign them to the same Judge where feasible.
- Tribunal can (but won’t) hold Home Office in contempt for ignoring consent orders : http://www.bailii.org/uk/cases/UKUT/IAC/2017/198.html
The facts of R (on the application of MMK) v Secretary of State for the Home Department (consent orders – legal effect – enforcement) [2017] UKUT 198 (IAC) involved the not uncommon scenario of the Home Office withdrawing its decision in response to an application for judicial review, agreeing a consent order which included an agreement to pay the costs of the claimant and to make new decision be made within a certain time and then failing to comply with that consent order.
Deception, causation and deprivation of British citizenship : http://www.bailii.org/uk/cases/UKUT/IAC/2017/367.html
In Sleiman (deprivation of citizenship; conduct) [2017] UKUT 367 (IAC) the tribunal considered the question of how directly causative past deception must be of a subsequent grant of British citizenship in order for a person to be deprived of that citizenship on the basis of deception.
The official headnote:
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalization “by means of” fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
Under the para V3.9A (Rules for Visitors), an overtsay is committed when a person remained in the UK without a leave (visa) for : https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-v-visitor-rules
- (a) 90 days or less, where the overstaying began before 6 April 2017; or
- (b) 30 days or less, where the overstaying began on or after 6 April 2017
⦁ It seems that the UK VAC is not coping with the Appendix FM (Settlement - Spouse, Partner, Fiance(e) etc applications
Applied to have your spouse's Entry Clearance case (spouse of a UK citzien etc) via the so-called UK BA Premium Service (14 days) consideration route ? According to multiple reports, it is not working and the applicants receive the following E-mails from various UK VACs aross the globe:
"Regarding Visa Application: GWFxxxxxxxxxx
For: XXXXX X XXXXXXX
Thank you for applying for a UK visa. Your visa application has been received and is under consideration. We aim to process non settlement applications within 15 working days (unless you have opted for the Priority Visa service), and settlement applications within 60 working days.
Unfortunately, the processing of your application has not been straightforward and we will be unable to decide your application within our customer service targets. We are continuing to work on your application and aim to make a decision as soon as possible.
We will write to you again if there is any change to this. Please do not attend the Visa Application Centre until you have been advised that your application has been decided and that your passport is ready for collection.
Kind Regards,
UK Decision Making Centre"
⦁ Incorrect Visa and BRP endorsements : https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19/correcting-an-incorrect-endorsement-ecb19?utm_source=FM+master+list&utm_campaign=4fd9d87491-RSS_EMAIL_CAMPAIGN&utm_medium=email&utm_term=0_792133aa40-4fd9d87491-116194677&mc_cid=4fd9d87491&mc_eid=1af5cd4d48
The options to correct the Incorrect Visa and BRP endorsements.
⦁ UK Visas and Immigration Guidance: Priority change of circumstances for sponsors (3 October 2017) : https://www.gov.uk/government/publications/manage-your-sponsorship-licence-sms-user-manual
Guidance about the priority service for Tier 2 and 5 employers sponsoring foreign workers. It gives information about the service and how to apply.
⦁ UK Visas and Immigration Guidance: Guidance on visa applications under Tier 5 (Youth Mobility Scheme) (1 October 2017) : https://www.gov.uk/government/publications/guidance-on-visa-applications-under-tier-5-youth-mobility-scheme
Use these guidance notes to understand the details of the Tier 5 (Youth Mobility Scheme) and how to apply.
⦁ UK Visas and Immigration Guidance: Country returns guide (2 October 2017) : https://www.gov.uk/government/publications/country-returns-guide
Home Office guidance on the documents required and processes for returning immigration offenders to their country of origin.
⦁ Same day premium service FLR(FP) applications from overstayers/irregular migrants
It has ben reported that an FLR(FP) application by an overstayer/irregular migrant was successful when lodged via the PSC, despite the PSC taking some 30 days to decide on the application. NB The postal FLR(FP) application from an overstayer/irregular migrant is taking about 12 months on average.
• Home Office in breach of law over permanent residence waiting times
The Home Office has broken the law by failing to publish the waiting times faced by EU citizens trying to get residence documents.
The Information Commissioner ruled that Amber Rudd’s department is in breach of the Freedom of Information Act, having sat on the request for seven months and counting.
• The Council of Europe Agreement on the transfer of refugee status can be found here : https://rm.coe.int/1680078b0d and the current interim UK BA instructions can be found here : https://www.gov.uk/government/publications/transfering-refugee-status-interim-notice-process
• Appendix T on the Tuberculosis (TB) screening requirements for the UK immigration applications can be found here : https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-t-tuberculosis-screening
• Tribunal criticizes government lawyers for “trench warfare” mentality and “inappropriate” conduct : http://www.bailii.org/uk/cases/UKUT/IAC/2017/372.html
In one of his final judgments as outgoing President, Mr Justice McCloskey launched a bitter broadside at the conduct of government lawyers in long-running litigation over the entry of refugee children.
While the criticism of the solicitors at the Government Legal Department and of previous barristers instructed for the Home Office is robust and unambiguous, the background is hard to discern from the judgment itself, which arises essentially as satellite litigation around the failure of the Home Office to comply with previous orders made by the tribunal. The case is R (on the application of AM and others) v Secretary of State for the Home Department (liberty to apply – scope – discharging mandatory orders) [2017] UKUT 372 (IAC).
• Hospital orders and deportation : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1382.html
In Secretary of State for the Home Department v KE (Nigeria) [2017] EWCA Civ 382, the Court of Appeal tackled
the narrow, but important, issue as to whether a non-British citizen who is convicted and sentenced to a hospital order with restrictions under sections 37 and 41 of the Mental Health Act 1983 is “a foreign criminal who has been sentenced to a period of imprisonment of at least four years” for the purposes of section 117C(6) of the Nationality, Immigration and Asylum Act 2002, so that the public interest requires his deportation unless there are very compelling circumstances that mean that it would be a disproportionate interference with his rights under article 8 of the European Convention on Human Rights… to deport him.
The case is also a good example of what can be considered “very compelling circumstances” in deportation cases.
• Permanent residence through incapacity to work: no UK derogation : http://www.bailii.org/uk/cases/UKUT/AAC/2017/360.html
The claimant in SSWP v NZ (ESA) [2017] UKUT 0360 (AAC) is a Polish national who worked in a chip shop. On 4 September 2017, the Upper Tribunal released a third interim decision in the case, relating to a very specific issue: had the UK derogated from Article 17 of Directive 2004/38 by the Accession (Immigration and Worker Registration) Regulations 2004?
• Changes in the "Application for UK visa for family settlement: form VAF4A and appendix 2" : https://www.gov.uk/government/publications/application-for-uk-visa-for-family-settlement-form-vaf4a
What happens if you are a non-EEA national of a dual (EU and UK) partner in the UK ?
The relevant Guidance can be found here : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/610197/direct_family_members_of_eea_nationals_v5_0.pdf
The following point is very important as in some cases the non-EEA nationals may not acquire the Permanent Residence status in the UK if the following points are not met:
“Non-EEA national family members of dual EEA and British citizens
This section tells you about family members of ‘dual nationals’, British citizens who are also nationals of other European Economic Area (EEA) member states.
British citizens who are also nationals of other EEA member states are not considered to be ‘EEA nationals’ for the purposes of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations). This applies whether or not the dual national has always resided in the UK.
A family member of a dual national does not have a right of residence under the regulations on the basis of their relationship to the dual national.
If they do not have a right of residence on any other basis under the 2016 regulations, they will need leave to enter or remain in the UK under the Immigration Rules.
Transitional arrangements
Transitional arrangements were put in place following amendments to the regulations in July 2012, which allowed family members of dual nationals who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met.
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual nationals, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
This arrangement also applies where a person had a right of residence on this basis on 16 July 2012 and had submitted an application for a document confirming this right on or before 16 October 2012.
Such persons will continue to have a right where a document was subsequently issued on the basis of this application.
Persons who had applied for an EEA family permit before 16 July 2012
A person who submitted an application for an EEA family permit as the family member of a dual national before 16 July 2012 will continue to be treated as the family member of an EEA national if both:
• the application resulted in an EEA family permit being issued (including where this document was issued following a successful appeal)
• the applicant travelled to the UK within the 6 month validity period of that EEA family permit
If the family member of a dual British citizen and EEA national meets the conditions
above, they will continue to be treated as the family member of an EEA national for
as long as they continue to be the family member of that dual national.
Anyone who falls within the transitional arrangements on the basis of an EEA family permit application does not need to apply for further confirmation of a right of residence in the UK.
For further information, see the Court of Justice of the European Union (CJEU) judgment in McCarthy (C-434/09)”
NB At the same time 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: http://curia.europa.eu/juris/document/document.jsf?text=&docid=191183&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=747813
UK Visas and Immigration Guidance - Grenfell Tower and Nationality (12 October 2017)
• A collection of guidance documents used by UK Visas and Immigration when deciding applications for British nationality : https://www.gov.uk/government/collections/nationality-policy-guidance
• Provides background information about the history of nationality law and can be used in conjunction with guidance to assess citizenship claims : https://www.gov.uk/government/publications/historical-background-information-on-nationality
• Guidance on requests for limited leave to remain outside of the Immigration Rules from relatives of those affected by the Grenfell Tower fire : https://www.gov.uk/government/publications/grenfell-tower-handling-relatives-immigration-cases
• Guidance on the handling of immigration cases involving Grenfell Tower fire survivors and other affected individuals : https://www.gov.uk/government/publications/grenfell-tower-fire-handling-immigration-cases
Важная информация для тех, кто находится в Великобритании как супрг(и)/партнеры граждан EU и у кого эти граждане EU так же получили британское гражданство.
Возможно, вы не сможете получить Permanent Residence и даже продлить 5-и летний EEA Residence Permit, и поэтому возможно нужно будет переходить на визу "супруга(и) гражданина/гражданки" Великобритании :
What happens if you are a non-EEA national of a dual (EU and UK) partner in the UK ?
The relevant Guidance can be found here : https://www.gov.uk/government/upload...onals_v5_0.pdf
The following point is very important as in some cases the non-EEA nationals may not acquire the Permanent Residence status in the UK if the following points are not met:
“Non-EEA national family members of dual EEA and British citizens
This section tells you about family members of ‘dual nationals’, British citizens who are also nationals of other European Economic Area (EEA) member states.
British citizens who are also nationals of other EEA member states are not considered to be ‘EEA nationals’ for the purposes of the Immigration (European Economic Area) Regulations 2016 (the 2016 regulations). This applies whether or not the dual national has always resided in the UK.
A family member of a dual national does not have a right of residence under the regulations on the basis of their relationship to the dual national.
If they do not have a right of residence on any other basis under the 2016 regulations, they will need leave to enter or remain in the UK under the Immigration Rules.
Transitional arrangements
Transitional arrangements were put in place following amendments to the regulations in July 2012, which allowed family members of dual nationals who had already relied upon a right of residence as the family member of that dual national to continue to enjoy a right of residence where the conditions set out below were met.
Persons residing in the UK on 16 July 2012
Persons already residing in the UK on 16 July 2012 as family members of dual nationals, and who held a valid registration certificate or residence card confirming this right on 16 October 2012 will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
This arrangement also applies where a person had a right of residence on this basis on 16 July 2012 and had submitted an application for a document confirming this right on or before 16 October 2012.
Such persons will continue to have a right where a document was subsequently issued on the basis of this application.
Persons who had applied for an EEA family permit before 16 July 2012
A person who submitted an application for an EEA family permit as the family member of a dual national before 16 July 2012 will continue to be treated as the family member of an EEA national if both:
• the application resulted in an EEA family permit being issued (including where this document was issued following a successful appeal)
• the applicant travelled to the UK within the 6 month validity period of that EEA family permit
If the family member of a dual British citizen and EEA national meets the conditions above, they will continue to be treated as the family member of an EEA national for as long as they continue to be the family member of that dual national.
Anyone who falls within the transitional arrangements on the basis of an EEA family permit application does not need to apply for further confirmation of a right of residence in the UK.
For further information, see the Court of Justice of the European Union (CJEU) judgment in McCarthy (C-434/09)”
Возможно хорошая новость (решение не встпутило в силу):
At the same time 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: http://curia.europa.eu/juris/documen...t=1&cid=747813
NB2 Если читать внимательно, то вышеуказанный Guidance относится в ситуации, когда БРИТАНЕЦ так же имеет EU гражданство, в этом случае, а не когда гражданин EU становится британцем.
Тем не менее, UK BA выдвет отказы и в последних случаях, "прикрываюсь" решение по делу McCarthy.
В общем, надежда на дело Lunes, т.к. начали появляться "отказы" по ситуации, когда к EU приезжает Non-EEA и получает 5-и летний EEA Residence Permit, потом EU получает гражданство и через х лет non-EEA подает на Permanent Residence и получает "отказ" (фактически UK BA не отказывает а делает еще хуже - вчера видел просто письмо из UK BA о том, что заявение non-EEA "is treated as withdrawn.... with no right of appeal".
• People with the Derivative Rights of Residence (“Zambrano” etc) may not be able to apply for Permanent Residence/Settlement in the UK, according to the UK BA
According to the Head of the Family Policy at the UK BA, the time spent with a Derivative Right of Residence will not count for the purposes of qualifying for indefinite leave to remain under the Immigration Rules on long residence.
“…there is no provision in the Immigration Rules for time spent in the UK with a right of residence under the 2016 Regulations to be counted as lawful residence for the purposes of the Rules on long residence…”
This is a disappointing news as it is hard to imagine how the people in this category may obtain Settlement in the UK at all ? The situation is likely to bring a number of legal challenges.
• News from the UK BA Sheffield – Settlement applications (helps to understand applicants of which countries need to either send their documents to Sheffield or whether the applications will be scanned at a particular Visa Application Centre (UK VAC)
“WHAT IS COVERED BY THIS UK DECISION MAKING CENTRE?
This UK Decision Making Centre currently deals with settlement applications lodged in:
• Afghanistan
• Canada
• Caribbean
• Nigeria
• Pakistan
• Tunisia
• Morocco
• Cameroon
• Gambia
• Ghana
• Senegal
• Sierra Leone
• Russia
• The United States of America
• India (non Priority only)
• Delhi, Chennai, Mumbai (Priority and non Priority)
• Sri Lanka (non Priority only)
• Minsk
• Paris
• Australia
• Egypt (Alexandria)
• China
• Japan (Tokyo and Osaka)
• South Korea (Seoul)
• Philippines
• Taiwan (Taipei)
• Brunei
• Mongolia
• Nepal
• Bhutan
• Bangladesh
• Thailand
• Hong Kong
• Malaysia
• New Zealand
This UK Decision Making Centre currently also processes all applications submitted at:
• Victoria Island Visa Application Centre in Lagos, Nigeria.
• Visa Application Centres in Freetown, Sierra Leone, Banjul, Gambia, Yaounde, Cameroon, Dakar, Senegal and Abidjan, Ivory Coast, Indonesia, Pune, Dusseldorf, Madrid, Geneva, Dublin and Rome”
Most recent case-law
• Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC)
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of”fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
• R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC)
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
• Doubtful and disputed nationality cases Guidance : https://www.gov.uk/government/publications/nationality-doubtful-disputed-and-other-cases-instruction
Asylum policy guidance used by UK Visas and Immigration when the applicant’s nationality is doubtful or disputed.
• UK Visas and Immigration Guidance - Application to extend sty in UK (long residence): form FLR(LR) (5 October 2017) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-long-residence-form-flrlr
Use this form if you are already in the UK with temporary permission to stay and want to extend your stay on the basis that you have lived here legally for many years.
• UK Visas and Immigration Guidance - Settle in the UK on the basis of long residence: form SET(LR) (5 October 2017) : https://www.gov.uk/government/publications/application-to-settle-in-uk-form-setlr
Use this form if you have lived in the UK lawfully for many years and now want to apply for settlement and a biometric residence permit.
• People with the Derivative Rights of Residence (“Zambrano” etc) may not be able to apply for Permanent Residence/Settlement in the UK, according to the UK BA
According to the Head of the Family Policy at the UK BA, the time spent with a Derivative Right of Residence will not count for the purposes of qualifying for indefinite leave to remain under the Immigration Rules on long residence.
“…there is no provision in the Immigration Rules for time spent in the UK with a right of residence under the 2016 Regulations to be counted as lawful residence for the purposes of the Rules on long residence…”
This is a disappointing news as it is hard to imagine how the people in this category may obtain Settlement in the UK at all ? The situation is likely to bring a number of legal challenges.
• News from the UK BA Sheffield – Settlement applications (helps to understand applicants of which countries need to either send their documents to Sheffield or whether the applications will be scanned at a particular Visa Application Centre (UK VAC)
“WHAT IS COVERED BY THIS UK DECISION MAKING CENTRE?
This UK Decision Making Centre currently deals with settlement applications lodged in:
• Afghanistan
• Canada
• Caribbean
• Nigeria
• Pakistan
• Tunisia
• Morocco
• Cameroon
• Gambia
• Ghana
• Senegal
• Sierra Leone
• Russia
• The United States of America
• India (non Priority only)
• Delhi, Chennai, Mumbai (Priority and non Priority)
• Sri Lanka (non Priority only)
• Minsk
• Paris
• Australia
• Egypt (Alexandria)
• China
• Japan (Tokyo and Osaka)
• South Korea (Seoul)
• Philippines
• Taiwan (Taipei)
• Brunei
• Mongolia
• Nepal
• Bhutan
• Bangladesh
• Thailand
• Hong Kong
• Malaysia
• New Zealand
This UK Decision Making Centre currently also processes all applications submitted at:
• Victoria Island Visa Application Centre in Lagos, Nigeria.
• Visa Application Centres in Freetown, Sierra Leone, Banjul, Gambia, Yaounde, Cameroon, Dakar, Senegal and Abidjan, Ivory Coast, Indonesia, Pune, Dusseldorf, Madrid, Geneva, Dublin and Rome”
Most recent case-law
• Sleiman (deprivation of citizenship; conduct) [2017] UKUT 00367 (IAC)
In an appeal against a decision to deprive a person of a citizenship status, in assessing whether the appellant obtained registration or naturalisation “by means of”fraud, false representation, or concealment of a material fact, the impugned behaviour must be directly material to the decision to grant citizenship.
• R (on the application of Islam and Pathan) v Secretary of State for the Home Department (Tier 2 licence-revocation-consequences) [2017] UKUT 00369 (IAC)
Unlike the situation for Tier 4 applicants, a person whose sponsor's Tier 2 licence was revoked for non-compliance with the Immigration Rules is not entitled to challenge a decision not to provide him/her with a period of 60 days in which to secure an alternative sponsor. Patel [2011] UKUT 211 (IAC) distinguished.
• Doubtful and disputed nationality cases Guidance : https://www.gov.uk/government/publications/nationality-doubtful-disputed-and-other-cases-instruction
Asylum policy guidance used by UK Visas and Immigration when the applicant’s nationality is doubtful or disputed.
• UK Visas and Immigration Guidance - Application to extend sty in UK (long residence): form FLR(LR) (5 October 2017) : https://www.gov.uk/government/publications/application-to-extend-stay-in-uk-long-residence-form-flrlr
Use this form if you are already in the UK with temporary permission to stay and want to extend your stay on the basis that you have lived here legally for many years.
• UK Visas and Immigration Guidance - Settle in the UK on the basis of long residence: form SET(LR) (5 October 2017) : https://www.gov.uk/government/publications/application-to-settle-in-uk-form-setlr
Use this form if you have lived in the UK lawfully for many years and now want to apply for settlement and a biometric residence permit.
• NHS identity checks. A pilot programme to recover more of the (derisory) sums said to be lost from “health tourism” has been causing “panic, fear, confusion” in hospitals, Politics.co.uk reports : http://www.politics.co.uk/comment-analysis/2017/10/13/panic-and-confusion-the-hospitals-piloting-migrant-id-checks
• UK Visas and Immigration Guidance - Points-based system: Tier 5 (Youth Mobility Scheme) (13 October 2017) : https://www.gov.uk/government/publications/points-based-system-tier-5-youth-mobility-scheme
Modernized guidance for how UK Visas and Immigration considers applications under the Tier 5 (Youth Mobility Scheme) category of the points-based system.
• Detention services order 09/2007 about escorting detainees with cash guidance : https://www.gov.uk/government/publications/procedure-when-escorting-detainees-with-cash
This guidance has simply been re-branded and contains no amendments
• Chapter 08: appendix FM family members (immigration directorate instructions). Updated 16th October 2017 : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
Recent case-law
- R (on the application of Anjum) v Entry Clearance Officer, Islamabad (entrepreneur – business expansion – fairness generally) [2017] UKUT 00406 (IAC) (11 October 2017) : https://tribunalsdecisions.service.gov.uk/utiac/2017-ukut-406
(i) A proposal by a Tier 1 Entrepreneur applicant who operates an existing business to use part of the prescribed minimum finance of £200,000 to purchase a second business for the purpose of developing and expanding the existing enterprise is compatible with paragraph 245 of the Immigration Rules.
(ii) An immigration interview may be unfair, thereby rendering the resulting decision unlawful, where inflexible structural adherence to prepared questions excludes the spontaneity necessary to repeat or clarify obscure questions and/or to probe or elucidate answers given.
• The case of Sala is now overturned at the Court of Appeal. Briefly, the expended family members’ rights do come under the EEA Regulations, thankfully
• High Court defeat for Home Office over torture policy : www.medicaljustice.org.uk/wp-content/uploads/2017/10/CO-5386-2017_Medical_Justice_v-_SSHD-Approved_Judgment.pdf
The Home Office has lost a judicial review over its controversial change to the definition of torture in a claim brought by unlawfully detained torture victims.
• Varying immigration applications (that is, submitting one application and then changing it for another type of the application)
What happens if one needs to submit, say, an extension of the UK Spouse visa application yet for some reason the financial requirement is not met, such as there are only, say, 4 months wage slips out of the required 6?
The application FLR(FP) does not require the prescribed level of income under the Appendix FM, so one can write a cover letter and explain the reasons as to why the application FLR(FP) is lodged instead of the application FLR(M). Also, when the other 2 months wage slips become available, one can then vary the application to FLR(M) provided the UK BA did not decide the application before. The UK BA may grant further leave under the FLR(M) route yet in some cases they may refuse the grant of the FLR(M) (5 year route to Settlement) and instead grant further leave to remain purely on the basis of the FLR(FP) application = 10 year route or even refuse the application arguing that the ‘date of application’ (relevant for the 6 months of evidence prior to date of application under appendix FM) was date of initial FLR (FP) application. The refusal may be appealed and allowed by the Immigration Judge establishing that the effective ‘date of application’ was the date of variation rather than the date of the initial FLR(FP) application.
The argument in the above appeal scenario may be a common sense argument relying on the case of Qureshi (Tier 4 – effect of variation – App C) Pakistan [2011] UKUT 00412 (IAC) and arguing that the ratio should apply to any application not just Tier 4.
• UK BA reply under the FOI request about the EEA Residence Documentation applications (EEAFM, EEAPR etc) consideration times – the delays are mounting : https://www.whatdotheyknow.com/request/391467/response/1055111/attach/html/6/FOI 42986 annex V2.xlsx.html
That means that if you are still considering to apply for Permanent Residence, Registration Certificate etc rather later than sooner, you may need to think again.
• UK BA Premium Service Centres appointments usually become available no earlier than 6 weeks before the desired appointment date
• Court of Appeal: private religious belief does not risk persecution: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1539.html
The case seems to pose a novel difficulty: should a claim by a person who would exercise their religion in utter privacy be accepted? These are not readily answered by HJ (Iran), which dealt with concealment of identity. In light of this distinction, a revisiting by the Supreme Court of the issue may be constructive.
• Home Office: a stroke is not “exceptional circumstances”
An ex-soldier who struggles to walk, speak or perform basic household tasks following a stroke has been told that he must look after his children without their Philippine national mother because these do not constitute “exceptional circumstances” in the eyes of the Home Office.
The appeal is under way, and will, hopefully, succeed : https://www.theguardian.com/uk-news/2017/oct/17/wife-of-stroke-victim-who-needs-24hr-care-must-leave-uk-while-he-cares-for-children
- The Republic of Ireland citizens have Settled status by default ?
Yes, they have, yet it is worth remembering that this is applicable IF :
S50A(5) of the 1981 Act states:
(5)For the purposes of subsection (4)(d), a person has a qualifying CTA entitlement if the person—
(a)is a citizen of the Republic of Ireland,
(b)last arrived in the United Kingdom on a local journey (within the meaning of the Immigration Act 1971) from the Republic of Ireland, and
(c)on that arrival, was a citizen of the Republic of Ireland and was entitled to enter without leave by virtue of section 1(3) of the Immigration Act 1971 (entry from the common travel area).
- Detained immigrants appeals – no Case Management Reviews (CMRs) ?
According to the Harmondsworth First Tier Tribunal (FTT), the CMRs and the Pre-Hearing Reviews are not listed for detained immigration appeals. That means the detainees appeals may be listed to proceed to a full hearing, without a Case Management Review hearing or a Pre-Hearing Review.
- Can a Permanent Residence (EEA(PR)) application be downgraded to grant of a Residence Certificate ?
Apparently, it can. According to the UK BA, if an applicant applies for a Permanent Residency and does not qualify but does meet the criteria for a Registration Certificate the UK BA will contact the applicant and offer him/her the alternative product. Unfortunately, the UK BA cannot do this automatically as they need the applicant’s permission to vary the application and cannot give the applicant a (lesser) product they did not apply for without the applicant's explicit consent. The UK BA can only make one attempt at contact because of pressure of time, but usually where a customer has a representative, that contact should be successful. If the UK BA are unable to contact the applicant the UK BA will refuse Permanent Residence, but explain the reasons in the letter.
- EEA Applications – Issue of the Certificates of Application (CoA) timing
According to the UK BA, now the CoAs are issued on the 4th day after the applicant's biometric enrolment
- THE NATIONAL HEALTH SERVICE (CHARGES TO OVERSEAS VISITORS) (AMENDMENT) REGULATIONS 2017 : http://www.legislation.gov.uk/uksi/2017/756/pdfs/uksiem_20170756_en.pdf
Note that the NHS-funded assisted conception services will NOT be included in the exemption from charge applicable to people who are caught within surcharge arrangements:
Section 7.39:
"From 21 August 2017, NHS-funded assisted conception services will not be included in the exemption from charge applicable to people who are caught within surcharge arrangements (i.e. those who have paid the surcharge, or who are exempt from paying it (with certain exceptions) or in respect of whom it has been waived). This means that, unless another exemption applies, where NHS assisted conception services are provided to a person who is exempt under surcharge arrangements, overseas visitor charges will apply. This is brought forward through regulations 11, 12 and 13 of this instrument, which insert a new regulation (9A) and amend regulation 10 and 11 respectively.".
What is the PEO application date vs Entry Clearance application vs UK BA Postal application date ?
1) The date of the PEO (same day service application at the UK BA PEO) application is be the date the application is submitted at the PEO, and not the date of booking an appointment. The paragraph 34G (ii) applies.
2) The Entry Clearance (EC; application to come to the UK) application date is usually the date the application fee is paid
3) The UK BA Postal application date is the date either :
- Royal Mail delivery – the date the application was posted by the applicant
- Courier delivery – the date the courier delivered the application to the UK BA
>AG: permanent residence needed before ‘enhanced protection’ kicks in: https://curia.europa.eu/jcms/upload/docs/application/pdf/2017-10/cp170109en.pdf
Today saw the release of the Advocate General’s Opinion in the Court of Justice of the European Union (CJEU) joined cases of B v Land Baden-Württemberg C-316/16 and Secretary of State for the Home Department v Franco Vomero C-424/16.
The issue in these cases concerns the entitlement of European citizens to the ‘enhanced’ level of protection against deportation when they have committed crimes. Where an individual is entitled to such a level of protection – broadly attained following ten years’ residence in a European country – the member state must show that there exist imperative grounds of public security to justify their expulsion.
>Home Secretary Amber Rudd announces review of Immigration Rules
The Home Secretary, Amber Rudd, has announced that the Law Commission will conduct a review of the Immigration Rules. The review came to light in Rudd’s oral evidence to the Home Affairs Select Committee on 17 October but Law Commission staff had already begun meetings before then.
At question 84, Rudd was asked about the complexity of the rules. She replied:
“I have already requested the Law Commission to review our immigration laws with a view to simplifying them. There were 20,000 different pieces of regulation for non-EU regulations and we have now got them down to 4,000. It is incredibly important—I share your frustration—and this is a personal mission of mine to make sure that we simplify the immigration so that your constituents and mine can use it in a more user-friendly way and that it can just be clearer for people where they can and where they can’t apply.”
V>Visa rules confusion forces successful entrepreneurs to leave UK
In 2011, Russell and Ellen Felber set up the award-winning Torridon Guest House in Inverness. It has hundreds of stellar reviews across TripAdvisor and similar sites. The New Yorkers made their home in the Highlands having fallen in love with the area during a holiday there, initially spending £300,000 to purchase the guesthouse, and a further £100,000 on its refurbishment.
Now the Felbers must leave Scotland and everything they have built. Their application for settlement was refused by the Home Office following an alleged misreading by the couple (and their solicitor) of the requirements of the entrepreneur job creation rules. That decision was upheld last week in Felber & Anor v SSHD [2017] ScotCS CSOH 130 in the Scottish Outer Court of Session.
The only basis of the refusal was that, during the two-year extension period of his leave, Mr Felber had not satisfied the Tier 1 (Entrepreneur) job creation requirement. The Secretary of State accepted that he had satisfied this requirement during the initial three years.
New UK Visas and Immigration Guidance - November 2017 - Обновилось достаточно больше количество т.н. Guidance Notes по разным иммиграционным категориям:
>UK Visas and Immigration Guidance - Immigration status checks: guidance for banks and building societies (30 October 2017) : https://www.gov.uk/government/publications/immigration-status-checks-guidance-for-banks
>UK Visas and Immigration Guidance: Current account closed or refused based on immigration status (30 October 2017) : https://www.gov.uk/government/publications/current-account-closed-or-refused-based-on-immigration-status
>UK Visas and Immigration - Free movement rights: family members of British citizens (27 October 2017) : https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
>UK Visas and Immigration - Assessing ordinary residence: nationality policy guidance (27 October 2017) : https://www.gov.uk/government/publications/assessing-ordinary-residence-nationality-policy-guidance
>UK Visas and Immigration Guidance - Immigration status checks: guidance for banks and building societies (30 October 2017) : https://www.gov.uk/government/publications/immigration-status-checks-guidance-for-banks
>UK Visas and Immigration Guidance - Representatives of overseas business (27 October 2017) : https://www.gov.uk/government/publications/representatives-of-overseas-businesses
>UK Visas and Immigration Guidance - Tier 2 and 5 points-based system sponsor licensing: maintenance (26 October 2017) : https://www.gov.uk/government/publications/points-based-system-sponsor-licensing-maintenance
>UK Visas and Immigration - Free movement rights: family members of British citizens (27 October 2017) : https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
>UK Visas and Immigration Guidance - UK leaving the EU: what you need to know (26 October 2017) : https://www.gov.uk/government/collections/uk-leaving-the-eu-what-you-need-to-know
>UK Visas and Immigration Guidance - Points-based system: Tier 2 (1 November 2017) : https://www.gov.uk/government/publications/points-based-system-tier-2
Guidance on deciding applications for people to enter or remain in the UK as a Tier 2 migrant.
>>> Do Irish citizen need to apply for Permanent Residence Card (PRC) before they can apply for Naturalization as British citizens ?
No, according to the UK BA:
“The position of Irish citizens is different to that of other EEA nationals. Irish citizens are not normally subject to any form of immigration control on arrival in the UK because of Ireland’s inclusion in the Common Travel Area. This means that they are treated as free of immigration time restrictions for naturalisation purposes. They do not therefore need to apply for a PRC before applying for naturalisation ”
>>> How to add a child born in the UK to the parent’s refugee claim ?
One can write a letter, including the child’s birth certificate and parents documents to : Leave in Line Team, CCWD, 7th Floor, OLCU 21, The Capital, Old Hall Street
Liverpool, L3 9PP
>>> Visa endorsements and conditions: ECB13 : https://www.gov.uk/government/publications/visa-endorsements-and-conditions-ecb13
Information and guidance on handling visa applications made outside the UK.
>>> Can a postal application be varied (changed to and processed) via the same day (PEO/PSC) service ?
In fact, it can be. The PEO usually holds the application and requests the passport to check stamps and then the applicant normally receives a decision in a few weeks time.
> Appeal waiting times continue to rise : https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2017-and-2016-to-2017
Immigration appeal waiting times rise 13%, now take a year on average
The average immigration appeal takes almost 12 months to be resolved, up 13% on the same period last year.
This is despite the fact that less than half as many people now have the chance to challenge Home Office decisions. The number of appeals handled by the immigration tribunal has fallen from around 20,000 to 8,000 – a startling 60% fall – since the Immigration Act 2014 was passed.
Appeal waiting times continue to rise
Immigration and asylum appeals at the First-tier Tribunal took 51 weeks to be resolved in April-June 2017 – the latest period for which data is available – according to the Ministry of Justice. That represents an increase of seven weeks on the same period last year.
> Appendix FM Applications (“spouses of UK citizens”) - savings
Please note that if you are relying upon the savings option, your sponsor now (recent change) also needs to provide a signed (additional) declaration letter confirming the source of funds.
> UK Visas and Immigration Guidance: Chapter 08: appendix FM family members (immigration directorate instructions) (1 November 2017) : https://www.gov.uk/government/publications/chapter-8-appendix-fm-family-members
Chapter 8 of the immigration directorate instructions which deals with family applications made after 9 July 2012.
>UK Department of Health Guidance on implementing the overseas visitor charging (30 October 2017) : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/654745/Overseas_visitor_charging_regs_guidance.pdf