08 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
New document sets out how EU citizens will be supported through an application process which is streamlined and easy to use.
> Dependence on an EEA national – non-financial dependency
Dependency does go wider then just financial dependency – as established in the court case of the Reyes v Secretary of State for the Home Department (EEA Regs: dependency) [2013] UKUT 314 (http://www.bailii.org/uk/cases/UKUT/IAC/2013/00314_ukut_iac_2013_r_philippines.html), particularly at paragraph 19. Where there is no financial dependency, the physical dependency will have to be substantial and well evidenced.
> Appendix FM Applications – Financial Aspect – Income from stocks and shares
Such income from stocks and shares can also count towards meeting the financial requirement. The applicant would not have to wait six months, compared to the funds from savings:
09 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
13 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
14 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
“Use it or lose it “ (when the Brexit is formalized”)
The changes to the guidance include an additional clarification that a British citizen does not need to be a “qualified person” in their initial three months back in the UK to sponsor a family member in a Surinder Singh application. There are also new sections about retained rights of residence and the assessment of UK residence prior to 25 November 2016.
In a decision of 7 November 2017, the Court of Appeal unanimously found, yet again, that the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 was unlawful and incompatible with EU law.
The Court of Appeal also considered a point about the meaning of “resided” in article 17(1)(a) of the Citizens Directive, which allow workers or self-employed people who retire to acquire permanent residence earlier than the usual five years. This is provided they have worked in the country for the preceding 12 months and “have resided there continuously for more than three years. So the court found that “resided” in that context meant “legally resided”.
15 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
1. (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. (2) the application was made:
1. (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
2. (b) within 14 days of:
1. (i) the refusal of the previous application for leave; or
2. (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
3. (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
4. (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Practical use of para 39E.
Say, someone has his/her (extension) application refused in the UK and appeals. The appeal process nowadays in the UK takes sometimes more than a year, so in case of the above applicant can then meet the relevant immigration Rule(s), he/she may withdraw the appeal and make a fresh application within the 14 days. The applicant would then benefit from the provision of the above para 39E and not be treated as an overstayer. Therefore it is then possible to even lodge a same day service (extension) application at the UK BA Premium Service Centre (PSC).
Note, though, that the applicant in the above scenario may not make a fresh application whilst she/he is on the Section 3C leave (that is, while the appeal is pending following a refusal of the previous immigration application. The general opinion is that those UK BA caseworkers at the PSC tend to be more forgiving than the caseworkers somewhere at the postal application end, who one never gets to see. The bottom point is that, if one's appeal is bound to fail, it would be good to consider a new application.
Are you or your friends and family members in a similar situation ? We may be able to help. See our friendly web-site and read the reviews at www.legalcentre.org
16 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
>>> The applicant's FLR(FP) application is certified as clearly unfounded by the UK BA. Further options ?
If the applicant's FLR(FP) decision was certified by the UK BA as clearly unfounded, and the applicant's leave as granted has expired, then the applicant's continuing leave under the Section 3C has already come to an end. The applicant then does have the 14 days to make another application, but the applicant will remain an overstayer in the meantime (with no right of employment etc).
>>> “Worker or self-employed person who has ceased activity” - EEA law
See the Regulation 5, namely :
“Worker or self-employed person who has ceased activity”
5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person—
(a) terminates activity as a worker or self-employed person and—
(i) had reached the age of entitlement to a state pension on terminating that activity; or
(ii) in the case of a worker, ceases working to take early retirement;
(b) pursued activity as a worker or self-employed person in the United Kingdom for at least 12 months prior to the termination; and
(c) resided in the United Kingdom continuously for more than three years prior to the termination.
(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—
(a) had resided in the United Kingdom continuously for more than two years prior to the termination; or
(b) the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.
(4) The condition in this paragraph is that the person—
(a) is active as a worker or self-employed person in an EEA State but retains a place of residence in the United Kingdom and returns, as a rule, to that place at least once a week; and
(b) prior to becoming so active in the EEA State, had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.
(5) A person who satisfied the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) must, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period during which that person is working or self-employed in the EEA State.
(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person do not apply in relation to a person whose spouse or civil partner is a British citizen.
(7) Subject to regulation 6(2), periods of—
(a) inactivity for reasons not of the person’s own making;
(b) inactivity due to illness or accident; and
(c) in the case of a worker, involuntary unemployment duly recorded by the relevant employment office,
must be treated as periods of activity as a worker or self-employed person, as the case may be.
17 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
>>> Return of passport by Home Office to sit Secure English Language Test
>>> Appendix FM (Settlement applications of partners of the UK/Settled nationals) and para 320(11) Refusals
Did you have some sort of breach of the immigration conditions during your stay in the UK ?The following information may be of importance to you.
Whilst the Appendix FM purports to be a full code, the para 320(11) on general grounds for refusal will also apply. This gives the UK BA powers to refuse entry clearance, for example, if the person has a poor immigration history. Whilst it is not the mandatory re-entry ban that is in place under the PBS (Points Based System), it is a discretionary re-entry ban that was imported into Appendix V, but left out of Appendix FM, so that applicants do not know about it if they rely on Appendix FM on its own. Para 320(11) seems to be used not only for those with ‘atrocious’ immigration histories but is being applied to others such as to people who have gone home to regularise their stay after having made a ‘frivolous’ application in the UK. They are told they will be refused entry clearance to the UK for two years due to their failure to meet the suitability requirement.
>>> SET DV (Settlement on the basis of Domestic Violence) refusals – not appealable ?
According to the UK BA, despite the SET DV applications technically also being human rights applications, the UK BA stance is that the SET DV refusals are not appealable.
>>> EEA application – old photos = refusal
It has come to our attention that the UK BA started rejecting the EEA type application when the applicants submit photos older than 1 month. The UK NA in that case keeps the applications for some 4 months, then returns the applications as “rejected” (no right of appeal) as well as the UK BA also deducts the £25 “application rejection admin fee”.
Just a reminder that with any UK BA application the applicant's photos must not be older than 1 MONTH on the date of the application.
>>> Tier 2 Sponsorship – the salary must not drop below the minimum threshold due to fluctuations in the exchange rate
According to the UK BA, the migrant's salary can never drop below the minimum threshold due to fluctuations in the exchange rate, something which is covered by guidance (in that this is not noted as one the exemptions for salary dropping below the threshold). The only way the sponsor would be able to determine whether this has happened is by checking the exchange rate.
How the sponsor chooses to do this will be up to them, but if they are found to have been sponsoring a migrant who is being paid below the threshold then compliance action is likely to be taken against them.
Double the number of visas will be made available to leading figures and individuals who show promise in technology, science, art and creative industries, the government announced today.
>>> Updated UK Visas and Immigration Nationality Guidance (multiple documents) :
20 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
>>> Entry Clearance – Settlement Visa to enter the UK granted yet expires before the migrant travels to the UK. Options ?
Should the above happen, that is, the Entry Clearance – Settlement Visa to enter the UK is granted yet expires before the migrant travels to the UK, the migrant then can use the “Vignette Transfer” option on the UK BA web-site to re-instate the “lapsed” Settlement Entry Clearance Visa. The current UK BA fee for this Vignette Transfer application is £169.00.
In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible to contribution-based benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system. >>> Northern Irish tribunal finds against Home Office on dual nationality : https://www.irishtimes.com/news/social-affairs/couple-wins-appeal-for-visa-after-derry-wife-refuses-to-identify-as-british-1.3288670
A woman from Northern Ireland who refuses to identify as British in order to facilitate her husband’s immigration application has succeeded in her First-tier Tribunal challenge against the refusal of a residence card.
The Home Office had told Emma DeSouza, who is from Magherafelt and holds an Irish passport, that as a British citizen she could not use more generous EU free movement laws to sponsor her American husband Jake DeSouza. The essence of the tribunal decision in the couple’s favour is that, due to the Good Friday Agreement, people from Northern Ireland can be Irish citizens only and so eligible to use the more liberal EU sponsorship rules. As mentioned in our latest media round-up, the case has already been reported in the Irish press.
It had been the position of the Home Office that people from Northern Ireland who hold Irish citizenship are also British. As such, they were not allowed to use their Irish citizenship as a back door to family reunion.
The High Court in R (MS) v Secretary of State for the Home Department [2017] EWHC 2797 (Admin) has found that in circumstances where a person would have no option but to stay on the streets after release from detention, the Home Office has a duty under Article 3 of the European Convention on Human Rights to provide them with suitable bail accommodation with reasonable speed. Potential homelessness cannot be a reason for prolonged detention.
23 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
>>> Expired passport with a valid visa. Options ?
If your passport has expired you can still use the valid visa in your expired passport, but you will need to show your expired passport and your new passport when you are travelling to and from the UK. See https://www.gov.uk/transfer-visa
24 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
>>> Can a child on a visitor visa in the UK change his/her status and remain in the UK ?
Children who are visitors in the UK may, under Para 298, switch to remain in the UK, provided they meet the requirements of the Para 298
>>> Can a spouse of British citizen with a joint British citizen child, including a dual national child, switch in-country, while being on a visitor's visa ?
A spouse of a British citizen with a joint UK (or UK/Dual national child) may make an in-country (preferably, a same day service application as the level of the so-called discretion is higher in the PEO applications) FLR (FP) application based on the British child. If approved, the leave to remain will be the so-called L(eave)T(o)R(emain) under the 10 year Route to Settlement outside the rules. Then, of course, the applicant may switch into the “proper” LTR as a spouse of a UK citizen on the so-called 5 year Route to Settlement.
27 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
28 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
Since April 2015, only very limited types of immigration case can be appealed. In the case of AT, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), the High Court found that despite what the Immigration Rules say, an application for indefinite leave to remain on the basis of domestic violence can be a human rights claim and therefore attract a right of appeal.
Last week Suraj Saptoka was in total awarded (including special damages for loss of earnings) the amount of £24,515.42, together with interest, by order of a Deputy High Court judge for false imprisonment in the case of Sapkota v Secretary of State for the Home Department [2017] EWHC 2857 (Admin). Mr Saptoka had been unlawfully detained for 36 days after immigration officials wrongfully decided he was attempting to extend his leave to remain by entering into a bigamous marriage.
This massive pay out by the UK BA is not unique. The Secretary of State routinely makes offers to settle where she concedes the unlawfulness of the detention, meaning pure quantum cases often do not reach the courtroom.
In Secretary of State for the Home Department v AM (Jamaica) [2017] EWCA Civ 1782 the Court of Appeal found that a First-tier Tribunal decision to allow a Jamaican man’s deportation appeal under Article 8 contained a material error of law and set it aside.
In criminal deportation appeals, the court found, the FTT must do more than “simply” engage in a Razgar assessment under Article 8. A finding that deportation would be disproportionate, without considering the substance of paragraphs 398 and 399 of the Immigration Rules, is a material error of law.
Daniel Negassi v the United Kingdom (application no. 64337/14) was an appeal to the European Court of Human Rights with a complaint that the Home Office’s failure to grant Mr Negassi permission to work, while waiting for a decision on his asylum claim, was a breach of his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR).
The court found Mr Negassi’s complaint to be inadmissible because it could not be said that the applicant suffered a “significant disadvantage” in the sense that the decision not to grant him permission to work led to serious adverse consequences. Mr Negassi, the court stated, had not suffered from any actual prejudice.
>>> UK BA Guidance on Fee waiver: Human Rights-Based and other specified applications : https://www.google.co.uk/url…
The Upper Tribunal Judge Rintoul’s elegant, succinct summary of the law on age assessment, with which he opens the determination in R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446, reminds one that pinpointing the age of a young person claiming asylum, other than where there is documentary proof, is an art, not a science. It is a question of fact for decision by the court or tribunal itself, as the Supreme Court explained in R (A) v London Borough of Croydon [2009] UKSC 8.
There are a number of interesting findings in the Court of Session judgment, published today, in DN against Secretary of State for the Home Department [2017] CSOH 144.
DN is a Ugandan child who applied for entry clearance to join her mother in the UK. Her mother holds discretionary leave (DL) to remain. DN’s application and subsequent appeal were refused, and her applications for leave to appeal were also refused. The later hearing at the Court of Session established that the discrimination based on the immigration status was unlawful, though.
This is a rare and a significant finding of discrimination and it will be interesting to see how (if at all) it will be taken on board by the Secretary of State.
The Court of Appeal has reluctantly agreed that the Home Office has the power to ignore a First-tier Tribunal’s decision to grant bail to an immigration detainee. However, on the particular facts of the case, the decision to refuse consent to bail was deemed unlawful.
Despite the impropriety of a departmental civil servant being able to overrule an independent and impartial judge, the Court of Appeal was duty bound to give effect to the clear intention of Parliament. This decision could lead to more regular use of the power to refuse consent by the Home Office, which is deeply concerning.
29 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
>>> The definition of a "current account" in relation to the Bank Account measures under the Immigration Act 2016 (21 November 2017) by the UK BA
From the 1st January 2018, the Immigration Act 2016 (the Act) will require banks to perform periodic checks on ‘current accounts’ to ensure that they are not operated by ‘disqualified persons’ (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK). So, what exactly is the definition of the “current account” by the UK BA ?
According to the UK BA, the Government is not able to provide legal guidance on the Immigration Act 2016, and this information does not constitute legal guidance. There is no legal definition of a current account, but the Government set out its view of a current account when the Immigration Act 2014 regime was debated in Parliament. On 12 December 2016, Lord Young reiterated this view in relation to the Immigration Act 2016 (Col 15, Vol 777). The UK BA also provids a link to relevant Hansard debate below this.
“Not all bank accounts are within scope of the requirement to make an immigration check under the 2016 Act. This instrument specifies that current accounts operated by or for individuals who are acting for the purposes of a trade, business or profession are excluded from the requirement to make an immigration check. In practice this means that firms are required to conduct checks on existing personal current accounts. Firms are not required to extend checks to all existing current accounts such as corporate or business accounts. This ensures that the checks undertaken by banks are appropriately targeted and proportionate. This reflects the Government’s ongoing view that current accounts are the gateway product to other financial services and a settled life in the UK. Such an account would be expected to provide functionality to hold deposits and make withdrawals without having to give notice. It would also typically enable the customer to receive and make payments through a number of different methods, including by cheque, direct debit, standing order, continuous payment authority or other electronic payments. Withdrawals, money transfers and other payment transactions can typically be conducted through various channels including ATMs, branch, online, mobile or telephone banking. Many current accounts also have overdraft facilities.
For the purposes of the Immigration Act, “current accounts” should also continue to include “basic bank accounts”. The requirement to make an immigration check does not apply to savings accounts, which in the Government’s view are intended to be opened for the primary purpose of accruing savings and not for day-to-day transactional banking, but which may provide some of the functionality I have just referred to. This also takes into account existing prohibitions in the 2014 Act, which mean that a disqualified person cannot evade the legislation by closing their current account and opening a business account as a sole trader or a charity.
I turn now to notifications. If a firm makes an immigration check on a personal current account and finds a match, the bank is required to notify the Home Office using a secure Home Office portal. To allow the Home Office to confirm the match and instruct on next steps, this instrument requires firms to provide certain information. This includes details of any other accounts that the firm holds for the disqualified person and the balances held in those accounts. Information about regular payments into accounts above a threshold of £200 has been included to allow the Home Office to identify patterns of payments that may constitute evidence of illegal working. The requirement to provide information is limited to what firms hold and can retrieve. It does not require the further investigation of data not held. The Home Office will then confirm the match, based on its data, and instruct the firm on the next steps.”
01 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
The key points relation to immigration are as follows :
· "We have doubled the number of available visas in the Tier 1 (Exceptional Talent) route available to those who are already recognised as global leaders or who show considerable promise in their fields. This recognises the importance of supporting those working in the digital technology, science, arts and creative sectors, and ensures that the UK can continue to welcome international talent to work in these key emerging and innovative industries. (p88)
· The government is also changing immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 route to apply for settlement after three years (p88)
· and to make it quicker for highly-skilled students to apply to work in the UK after finishing their degrees. (p89)
· We are relaxing the labour market test to allow UK Research and Innovation and other select organisations to sponsor researchers, making it easier to hire international researchers and members of established research teams. (p89)
· The National Academies are considering how they can encourage top global research talent to come to the UK through the Research and Innovation Talent scheme within Tier 1 of the visa system. (p89)
Wider policy comments:
Research and innovation are global endeavours and talented and experienced people in these fields are internationally mobile. Businesses have talent scouts around the world to spot opportunities in the most creative clusters, and investment tends to follow talent. The UK has the second largest bilateral flow of scientists and we want the UK to be a magnet for world-class talent. We will increase the number of scientists working in the UK and enable leading scientists from around the world to work here. We will continue to recruit and retain the best talent and ensure the UK remains a world-leader in science and innovation through our Rutherford Fund. (p88)
We want to continue to be an attractive destination for the world’s most talented and innovative people and the UK will continue to remain a global, outward looking nation and home to the brightest and best. Our thriving and flexible labour market continues to attract international businesses and investment, enabling businesses to respond and adapt to economic change. To ensure that our labour market remains competitive, the Migration Advisory Committee has recently undertaken a wide-ranging consultation to form a UK-wide view of our skills needs, ensuring our future migration system supports our Industrial Strategy. We will consider the Migration Advisory Committee’s forthcoming conclusions carefully. (p125)"
04 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph: 0330 001 0342 or 07791145923
First-tier Tribunal appeals against asylum decisions are twice as likely to succeed at some hearing centres compared to others, a BBC investigation has found.
47% of appeals succeeded at Taylor House, whereas the success rate was as low as 21% at Yarl’s Wood and 24% in Belfast. The data comes from Freedom of Information requests covering January 2013 to September 2016 and excluding fast-track cases.
In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal
>>> Proportionality principle no help in EU mother’s income support claim : www.bailii.org/uk/cases/UKUT/AAC/2017/440.pdf
LO v SSWP (IS) [2017] UKUT 440 (AAC) involved the overlap between EU law, family law and welfare benefits, focusing particularly on the role of proportionality. All this is academic to LO, who just wanted her income support. Despite compelling personal circumstances, there was no basis on which the tribunal could find a right to reside and make her eligible for that benefit.
The decision affirms the existing line of cases in this area, but the idea of proportionality as a liberalising influence may be examined again by the courts.
In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities
06 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org - Ph/Viber/WhatApp: 07791145923
>>> Paid for the Same Day Service (PSC/PEO) application but submitting the application after the leave (visa) expires ? You are risking a refusal
Unless there were expeptional circumstances, under the Para 34 of the Rules the UK BA is likely to refuse the PEO application when such an application lodged even on the following day the leave (visa) expires, despite the application paid for on-line before the visa expired :
34G:
“For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E) is made is:
…
(iv) where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre”
07 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
>>> UK BA can revoke ILR without the right of appeal
Under the current Rules and, namely, under the Section 76, the UK BA can revoke the ILR (Indefinite Leave to Remain) with no right of appeal. Should that happen, the remedy may the the so-called Judicial Review (JR)
08 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
· Take account of the future commencement of the immigration bail provisions in Schedule 10 to the Immigration Act 2016.
· Provide for entry clearance to be issued electronically.
· Allow standard and marriage/civil partnership visit visa holders to transit using the same visa.
· Clarify and remove inconsistencies from the rules relating to indefinite leave to remain for main applicants and their dependants in work categories.
· Double the number of available places in the Tier 1 (Exceptional Talent) category to 2,000, and allow accelerated settlement for certain applicants.
· Consolidate and clarify the rules for Tier 1 (Entrepreneur) applicants.
· Make new Tier 2 provisions for research positions and for students switching from Tier 4.
Into effect from:
· The changes to Appendix M set out in paragraph M1., and to Appendix N set out in paragraph N2. of the statement shall take effect on 28 December 2017.
· The changes to Appendix G set out in paragraph G1. of the statement shall take effect on 1 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 1 January 2018, the application will be decided in accordance with the Immigration Rules in force on 31 December 2017.
· The changes to Part 6A set out in paragraphs 6A.22 and 6A.23, to Appendix A set out in paragraphs A16. to A19., and to Appendix J set out in paragraphs J1. to J11. of the statement shall take effect on 11 January 2018. However, if an applicant has made an application for entry clearance or leave to remain using a Certificate of Sponsorship that was assigned to him by his Sponsor before 11 January 2018, the application will be decided in accordance with the rules in force on 10 January 2018.
· The changes to Part 5 set out in paragraphs 5.13 to 5.15 and 5.18 to 5.19, to Part 7 set out in paragraphs 7.3 to 7.5 and 7.7, to Part 8 set out in paragraphs 8.20 and 8.36, and to Appendix Armed Forces set out in paragraph AF2. of the statement shall take effect on the commencement of Schedule 10 to the Immigration Act 2016.
· The other changes set out in the statement shall take effect on 11 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 11 January 2018, the application will be decided in accordance with the Immigration Rules in force on 10 January 2018.
12 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
Расшифровка изменений в Правилах. Важное выделено красным цветом.
This is an in-depth look at our previous report from the 7th December 2017 on the new statemented of changes to the Immigration Rules HC 309. The most important points are, as follows :
Except where otherwise indicated, these changes will come into force on 11 January 2018, although applications made before 11 January 2018 will be decided in accordance with the Immigration Rules in force on 10 January 2018.
- 10 year ban expanded
A ten-year ban on re-entry is introduced for those who used deception in an application for “leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application”. It used to be that a ten-year ban was imposed on those who used deception in an application for entry clearance only. Family members applying under Appendix FM of the Immigration Rules are still NOT subject to this ban.
- Absences for PBS dependants are now limited to 180 days in line with the main applicants
This might be one of the changes with the most profound impact. It used to be the case that while PBS migrants had to have been out of the UK for fewer than 180 days in any given 12 months during the qualifying period for Indefinite Leave to Remain, dependants did not have to meet this requirement. As a result, PBS migrants, in particular Tier 1 (investors) and (entrepreneur), have historically ensured that the main applicant in the application was the one who did not need to travel that much, while the “real” businessperson was a dependant, allowing them to travel extensively, usually for business, and still be eligible for Indefinite Leave to Remain. The 180-day absence criterion is now extended to partners of PBS migrants as well, so that the strategy above will no longer work. This will be apply to those granted leave following an application made after 11 January 2018.
- Electronic entry clearance
Entry Clearance may now be issued electronically. This scheme will be trialed with specific groups (not yet announced) to start with, with a view to general introduction later. Applicants who hold an entry clearance issued in electronic form will not need to present it to an Immigration Officer, who will instead be able to check it electronically. They will only need to present their passport or identity documents. These changes will take effect on 11 January 2018 but the UK BA has not yet confirmed know who would be the first groups to have entry clearance issued electronically.
- Visitors
To date, those visitors who held a standard or marriage/civil partnership visit visa would have needed to obtain a separate transit visa if they want to transit the UK. From 11 January 2018, they will be allowed to transit the UK without the need to obtain a separate transit visa.
Appendix 3 is also being changed to clarify that visitors are not permitted to study at an academy or a school maintained by a Local Authority.
- Immigration bail
This is the one change which does not have a commencement date. The government simply proposes to commence Schedule 10 to the Immigration Act 2016 “as soon as possible”.
Schedule 10 introduces a new concept of immigration bail and transfers those on temporary admission or release onto that new status. In summary, temporary admission and temporary release will no longer exist, and will be replaced by “bail” instead. Once the changes come into force, those who have no prospects of being removed and therefore cannot be detained may still be put on bail.
- Tier 1 (Exceptional Talent)
The changes fulfill the commitments made in the recent Budget to:
double the number of Tier 1 (Exceptional Talent) visas from 1,000 to 2,000. Applicants must be endorsed by a Designated Competent Body (DCB), but the additional 1,000 places will not be allocated between the DCBs. They will instead form a pool of unallocated places which will be drawn on according to need on a first-come first-served basis.
allow exceptional talent visa holders (but not exceptional promise visa holders) to qualify for ILR after three years,
simplify the application for holders of certain peer-reviewed fellowships or senior academic positions.
- Tier 1 (Entrepreneur)
The requirements for Tier 1 (Entrepreneur) have been re-written “to make them clearer and easier to follow”. The requirements themselves are “unchanged”, but for 14 separately listed changes (!). These changes include:
<clarification on the job creation rules,
<clarification on certain documentary evidence to be provided
investments from venture capital firms (which will now need to provide a letter);
<applicants will no longer be able to rely on investments and funds already relied on by another Tier 1 (Entrepreneur) or that migrant’s business or close family member. These investments and funds can no longer be relied on to “prevent recycling of funds between applicants”.
<clarifications to the evidential requirements for those switching from Tier 1 (General) to Tier 1 (Entrepreneur) category
- Tier 2
This category is also seeing a number of changes, but the most significant ones are:
<applicants switching from Tier 4 to Tier 2 (General) will be able to apply as soon as they have completed their courses, rather than only after having received their final results
<The introducing of further exemptions to the Resident Labour Market Test for posts held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and established research team members sponsored by a Higher Education Institution or a Research Council
Perhaps more significantly, paragraph 245AAA(B) is deleted.
This paragraph read:
“the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor”.
It meant that those who had a break of more than 60 days between one employment and the other could not apply for Indefinite Leave to Remain after five years. One could instead apply to renew their leave, but the maximum period of leave under Tier 2 (General) is capped at a maximum of six years. In other words, applicants who had a break of more than 60 days between one employment and the other had to leave the UK after six years, and were never given a chance to apply for Indefinite Leave to Remain. This change is great news for these applicants.
- Students
The changes will allow some part-time students to secure Tier 4 visas. Tier 4 part-time students will not have work rights, will not be able to bring dependants and will not be able to extend in-country.
Part 3 of the Rules is amended so that the minimum age for those coming for short term study is 16 instead of 18.
- Other changes
The wording on relationships for family members of PBS migrants and migrants in other work categories set out in Part 5 of the Rules is changed from being in a “subsisting relationship” to being in a “genuine and subsisting relationship”, bringing the wording in line with those applying under Appendix FM.
The minimum age for overseas domestic workers is raised from 18 to 19. Measures are also introduced to prevent overseas diplomats bringing extended family members to the UK in the guise of domestic workers.
The annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.
13 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
“To observe that British overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it, is not to conclude that it is a relationship which for the purposes of s 44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom”.
The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.
>>> Being able to demonstrate “a genuine and subsisting parental relationship” with a qualifying child is an essential requirement to succeed in a human rights appeal involving children : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1967.html
In Secretary of State for the Home Department v VC (Sri Lanka) [2017] EWCA Civ 1967 the Court of Appeal grappled with what this means in the pretty extreme case of the respondent’s children being in care.
14 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
>>> EEA applications – notes from the recent UK BA and ILPA meeting
New settled status/temporary status system for EEA national
The UK BA hopes to introduce new system in September 2018.
Likely to be introduced in stages – aiming to avoid everyone applying upon commencement of the scheme to be able to resource adequately.
Want to make system as straightforward as possible. Ideally will be entirely online – no need to send in identity document – scan it instead.
Presumption will be to grant some form of leave e.g. Leave to Remain or Indefinite Leave to Remain rather than refuse. Need to balance this against preventing fraud. Many people submit false applications claiming to be family member of EEA national as last-ditch attempt to avoid removal – so there will have to be fraud indicators which if triggered will lead to in-depth consideration.
The UK BA hopes that when the new system is introduced people will stop applying for PR docs etc under EU law – but they understand why ILPA members may advise people to do both. They want to try to reduce volumes of applications under current system so they can cope with new system
HMRC data sharing – EEA application (from the recent UK BA and ILPA meeting)
Two kinds of data sharing with HMRC:
Bulk data sharing – every month the UK BA requests HMRC data on all EEA sponsors of new EEA applicants (residence cards). Takes time to get it but that way the data is ready by the time the applicant is considered by caseworkers. Aim is just to check that the EEA national is working right now. Not done for PR applicants.
Manual (one-off) data sharing – done on case-by-case basis, e.g. retained rights case where applicant can’t provide evidence of EEA national’s activities.
If no tax/incorrect tax paid but there is satisfactory evidence of employment/self-employment they won’t refuse the application – but they will refer it to HMRC.
Currently there is a cap on just how much data can be shared by HMRC. With the new settled status scheme there are agreements in place to share much more data with a variety of other government departments.
On-line forms – EEA applications
The UK would like to extend it to all applicants but can’t afford to do this yet. Current priority for online team is introducing online settlement form.
Meanwhile family members applying separately cannot use the online form. Their application will be rejected if they try to do this.
But students/self-sufficient people financially responsible for family members (or supported by family members) can use the online form at their own risk. They need to be careful because it doesn’t prompt them to provide all the information needed.
The NEW EEA paper form
New draft version is with Home Office lawyers for review. New version won’t ask for all absences from UK – in line with online form.
Return of documents
ROD requests now processed within 48 hours.
EEA family permits
Some decisions made in Sheffield at the moment.
Liverpool are helping out with EEA family permit applications made in Indian subcontinent. They are able to assist making EEA family permit decisions because this is their specialist area.
There have to be extremely good reasons not to enclose EEA national’s identity document. Retained rights, domestic violence cases where applicant can’t get hold of document should not be rejected because of failure to provide it. ILPA members pointed out that they are being rejected (or sometimes refused) on this ground. The UK BA will look into it.
Option to accept residence card if PR is going to be refused
Current policy – if someone has applied for a PR card and caseworker considers that they don’t have enough evidence for this but may qualify for residence card caseworker will try to contact applicant or representative once to ask if they would like to vary their application from PR to residence card. If caseworker can’t get through or if the person says no the application will be refused.
If applicant or representative says in covering letter that they would like to be considered for residence card if Home Office considers that they don’t have enough evidence for PR then they will act on this. But be aware that if you follow this option then there will be no right of appeal if you say this and you get a residence card instead of PR card.
New draft version of paper PR form will have box to tick to say you want to be considered for residence card if not enough evidence for PR card – this is with the Home Office lawyers at the moment.
15 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
UK Visas and Immigration policy equality statement on processing asylum claims immigration detention.
Asylum process guidance is available for cases in detention who have claimed asylum, and for entering cases who have claimed asylum into detention
18 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
Неработающие партнеры-европейы (EU citizens), кто находятся в браке с гражданами Великобритании (UK), так же могут получить ПМЖ (Settlement - ILR) в Великобритании
>>> It is still possible to apply for Settlement for the EU citizens who did not work and are married to British citizen spouses
Are you an EEA national, who has never or very little worked in the UK and you have been married to a UK citizen spouse for some 10 or more years ? In this case you can benefit from the provisions of the current Immigration Rules, namely, the para 276B, and you may be issued with a Settlement status in the UK under the UK (rather the the EEA Regulations) Immigration Rules
19 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
In the recent decision in Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 confirms that if the Home Office wishes to impose visa conditions, it must give people written notice of those conditions. If the Home Office fails to do this, or is unable to produce evidence that the notice was sent, it will be unable to rely on any purported breach of a visa condition to justify a decision to refuse a subsequent application, curtail a person’s leave, or remove a person from the UK.
This decision could have wide-reaching ramifications, given that it is not currently Home Office practice to outline any conditions imposed when granting a visa application.
This judgement appears to suggest that the Home Office has consistently and systematically failed to impose conditions when granting applications for leave to remain. This is particularly significant in categories such as Tier 1 (Investor), Tier 1 (Entrepreneur), and Tier 4 (General) where there are numerous, often complex, conditions which must be complied with.
That means that if the Home Office has failed to give written notice of these conditions, they do not apply.
“the decision in Chavez-Vilchez represents no departure from the principle of EU law laid down in Zambrano, although it does constitute a reminder that the principle must be applied with careful enquiry, paying attention to the relevant criteria and considerations, and focussing not on whether the EU citizen child (or dependant) can remain in legal theory, but whether they can do so in practice. There is no alteration in the test of compulsion. [paragraph 72]”.
It is clear from the case of Patel that this “test of compulsion” remains difficult to meet.
In R (Decker) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752, the Court of Appeal found that the Secretary of State must show her workings. She, and the immigration tribunals, must explicitly apply relevant tests set out in the EEA Regulations when making decisions. It is an error of law to simply identify considerations which could be relevant without specifically having regard to what the regulations say.
The court also held that a deportation order may be valid even if it is signed when the subject of the order is outside the UK.
In an Upper Tribunal determination that will come as a surprise to no-one other than the judge whose decision was under appeal, President Lane has held that it is not possible for the tribunal to allow an appeal on a conditional basis (such as “the appeal is allowed provided the Appellant provides (document) in the future”).
“Hundreds of thousands of decisions are made annually under the Immigration Rules. Decisions which can be life changing for those seeking entry or leave to remain in the UK and their families.
But the Rules are widely criticised for being long, complex, and difficult to use. On 1 May 2017, the Rules totalled 1096 pages in length and their drafting is poor. Many provisions are duplicated, cross references are often incomplete and some parts are incomprehensible.
Our project will not involve any substantive policy changes or any new legislation. It will instead aim [to] redraft the Rules to make them simpler and more accessible to the user.
The review will not impact the legal basis on which a person has leave to enter or remain in the UK”.
>>> Northern Ireland appeal case on “Chen parents” referred to EU court
The case of an Albanian couple living in Northern Ireland has been referred to Luxembourg over a conflict between English, Irish and European Union law. The decision of the Court of Justice of the European Union in their case could help thousands of other families to establish a right of residence in the UK.
The parents in Ermira Bajratari v Secretary of State for the Home Department are “Chen parents” – non-EU citizens with EU citizen children who can claim derivative rights of residence so long as they are self-sufficient. Two of the Bajratari children are Irish, but although the husband has been working, he has been doing so unlawfully since the expiry of a previous residence card. The Home Office refused to issue a new one, arguing that income from this illegal labour cannot be used to establish self-sufficiency, as per W (China) and X (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494.
The appellants argued, among other things, that this English Court of Appeal decision conflicts both with the original CJEU decision in C-200/02 Zhu and Chen and with a decision of the High Court of Ireland in OA v Minister for Justice, Equality and Defence [2014] IEHC 384. The AIRE Centre intervened as a third party.
In KB & AH (credibility-structured approach) Pakistan [2017] UKUT 491 (IAC) the tribunal declined to give updated country guidance on the situation of Ahmadis in Pakistan because the case apparently turned on its own facts. This is often the case where the facts favour the appellant; where the facts favour the Home Office a case often seems to be of more general interest.
The head note :
“1. The ‘Credibility Indicators’ identified in the Home Office Asylum Policy Instruction, Assessing credibility and refugee status Version 3.0, 6 January 2015 (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility), provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune.
2. However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important (interrelated) caveats, among which are the following:
-the aforementioned indicators are merely indicators, not necessary conditions;
-they are not an exhaustive list;
-assessment of credibility being a highly fact-sensitive affair, their main role is to help make sure, where relevant, that the evidence is considered in a number of well-recognised respects;
-making use of these indicators is not a substitute for the requirement to consider the evidence as a whole or ‘in the round’;
-it remains that credibility assessment is only part of evidence assessment and, as Lord Dyson reminded decision-makers in MA (Somalia) v Secretary of State for the Home Department[2010] UKSC 49 at [33], ‘the significance of lies will vary from case to case’;
-in the UK context, use of such a structured approach must take place within the framework of EU law governing credibility assessment, Article 4 of the Qualification Directive in particular; and,
-also in the context of UK law, decision-makers (including judges) by s. 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are statutorily obliged to consider certain types of behaviour as damaging to credibility.
3. Consideration of credibility in light of such indicators, if approached subject to the aforementioned caveats, is a valid and useful exercise, based squarely on existing learning.”.
20 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatsApp : +44(0)7791145923
>>> Restricted Certificate of Sponsorship Cut Off Point - 20 December 2017
The current intelligence from ILPA members suggests that the Restricted Certificate of Sponsorship allocation has been reached this month and therefore the minimum number of points required is 65. This has meant that only applications with a Resident Labour Market Test and a salary of £68,000 (or above) have been approved.
27 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatsApp : +44(0)7791145923
>>> Statement of Changes HC 309 - Residence Requirements for PBS Dependants UPDATED with Home Office response (22 December 2017)
“We are making a few changes to settlement rules as part of this rules change. Collectively, these are intended to remove inconsistencies and provide greater clarity for PBS migrants and their dependants on the circumstances in which they may apply and be granted indefinite leave to remain and to ensure that migrants act in a way that is consistent with the spirit of the Immigration Rules. In addition, we included this change at the same time as some of our wider changes to settlement rules for the purposes of coherence.
You will be aware that the policy change in relation to PBS dependants has been planned for over a year. However, in that time, we have considered this further and have taken great care to address the concerns raised. That is why the rules change will not apply retrospectively – we will only consider absences in any future grants of leave. We consider this to be reasonable and applicants will be aware that the Immigration Rules are subject to change and that they should not assume that the rules will necessarily be the same in 5 years’ time.
We are aware that some Tier 1 (Investor) applicants structure their affairs as you have described. However, our general position is that those applying for ILR should have built up substantial ties to the UK, including having lived the majority of their time here. Allowing absences of up to 180 days a year is a very generous provision which allows applicants to continue their business affairs overseas while building ties to the UK. We see no reason not to apply the same requirement to dependant partners as well as to main applicants. In applying for leave, they are declaring an intention to live with their partner in the UK. The child dependant rules also require both parents to be in the UK, or be granted at the same time. We would question what the purpose would be of granting such leave to dependants if the real intention was for the partner/other parent to live apart from their family for the majority of the time. Such activities clearly go against the intention of the rules and may be considered to be a change of circumstances under paragraph 321(ii) or a false declaration under paragraph 321A(2) of the rules. Some PBS dependant partners have been refused re-entry for this very reason. Quantifying in the rules that they may spend up to 180 days a year overseas removes this uncertainty.
With regard to the notice of this change, applicants have the remainder of their existing leave before any absences from the UK will be counted. As the absence provision is up to 180 days a year, they would also be able to have substantial absences from the UK in the early part of their future extension leave, before any such absences reached a level that would affect a future application for settlement. There is also no limit on the number of times an applicant may extend their leave as a PBS dependant. If any partners are unable to qualify for settlement, it is open to them to apply for further extensions and settle in future. The same applies to child dependants.”.
>>> Sole Representative of an Overseas Business – the UK holding company possibility ?
According to the UK BA, the creation of the UK holding company (instead of the subsidiary or branch) may be possible :
“Application for overseas business representatives must ensure that they demonstrate that the company or companies they set up are engaged in the same core business activities as their parent company. Broadly speaking once in the UK business representatives can set up multiple subsidiaries and a holding company would not necessarily be excluded from this but it will be important that the applicant provides in the application a clear explanation of why the applicant has adopted the company structure that the applicant has chosen and how the applicant believes it meets the expectation that companies engage in the same business activities as their parent company.”.
>>> Upper Tribunal Determination re Tier 1 Entrepreneurs (23 November 2017) :
Recent determination from the Upper Tribunal. It relates to a Tier One Entrepreneur application, made with reference to the Article 8 ECHR, whose appeal was considered under the 2014 Immigration Act.
The essence of the submission was that where the Immigration Rules were met, then any removal would breach Article 8 of the ECHR. At paragraph 40, the Tribunal adopted the Home Office’s concession that where the Immigration Rules are met, then the public interest in removal had nominal weight under question 4 of Razgar.
>>> Update documents re EU citizens' rights (22 December 2017)
28 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatsApp : +44(0)7791145923
When a self-employed EU citizen falls on hard times in another member state and stops working, do they retain their status as a worker?
Since 2010, English courts have said they do not. In a case with wide implications for residence and social security rights, the Court of Justice of the European Union in C-442/16 Florea Gusa v Minster for Social Protection (Ireland) has deemed that position to be wrong.
Following Gusa, self-employed EU citizens who become unemployed retain their worker status, and therefore right to reside, in the same way as people in direct employment who lose their jobs.
A Supreme Court decision handed down recently is good news for people who have had their British citizenship taken away because it was obtained under false pretenses. The Home Office has accepted that in most cases, deprivation rather than nullity is the correct process. Deprivation gives people stripped of citizenship a full right of appeal and has less of a knock-on effect on their families if carried through.
That means that the third parties (spouses and children) are not affected by the deprivation decision whereas they would be in the case of nullity. The worst affected are usually children.
The Home Office published a guidance for caseworkers on when to apply for a court order freezing the bank account of someone alleged to be in the UK unlawfully.
A freezing order under section 40C(2) of the Immigration Act 2014 “prohibits each person and body by or for whom the account is operated from making withdrawals or payments from the account”. The measure was introduced by Schedule 7 of the Immigration Act 2016, as part of the hostile environment package of restrictions aimed at making life intolerable for people without immigration status.
The banks are expected to carry out the first round of immigration checks on some 70 million accounts in January 2018.
03 January 2018 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Mob/Viber/WhatsApp : +44(0)7791145923
>>> Watch out for the approved IELTS tests centres !
>>> What is coming up in relation to the UK and EEA law immigration in 2018 in the UK ?
Please note that this is a general attempt to predict the possible events that may or may not happen (thanks to the FMO)
Immigration White Paper
The contents of the White Paper are entirely unknown at the time of writing but are expected to address future EU migration and perhaps migration policy more generally. The fact that a major MAC report on future immigration is not expected until September 2018 suggests the White Paper may not be comprehensive when it does eventually arrive (see below).
Second phase EU-UK talks
With sufficient progress having been made, the second phase of EU-UK talks on future relationship will begin in early 2018, including on a transitional phase that is likely to preserve most or all elements of the single market and free movement of people.
European Union (Withdrawal) Bill
Formerly known as the “Great Repeal Bill” but also referred to in some quarters as the “Great Download and Save Bill” this is the main legislative measure bringing about Brexit. In short it:
Repeals the European Communities Act 1972
Directly incorporates into UK law some EU legislation
Imparts extensive powers to the Government to make secondary legislation relevant to Brexit
It is unknown when the Bill will become law but it is likely in early 2018.
Immigration Bill
This is anticipated to be a very short Bill subjecting EEA nationals to UK immigration law and formally repealing the Immigration (Economic Area) Regulations 2016. There may be some potential to propose amendments and it can act as a focus for discussion. Despite (or because of) immigration being an enormous and controversial subject, the Government already commands extensive powers to regulate immigration policy and law without primary legislation.
Migration Advisory Committee report on economic migration
The Migration Advisory Committee (MAC) is an official advisory body appointed by the Government to advise on immigration issues. MAC was commissioned in July 2017 to consider the position of EEA nationals in the UK labour market. The consultation formally closed in October 2017 and the final report is due September 2018.
Law Commission review of Immigration Rules
This exercise is confined to re-writing the law of immigration rather than the policy. However, the Law Commission is a genuinely independent (if conservative) body, consults widely and is already seeking assistance with its task. Simplification of immigration law is extremely desirable in order to improve accessibility.
Target for completion of UK withdrawal talks
The EU has set a target of Autumn 2018 for conclusion of withdrawal talks. This would in theory give sufficient time for all Member States to approve the deal, as is required by Article 50 TFEU (which governs withdrawal).
04 January 2018 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Mob/Viber/WhatsApp : +44(0)7791145923
The revised DSO 05/2011 ‘Management of detainees’ cash exceeding the value of £1000, the Proceeds of Crime Act 2002 (POCA) and the referral process’. Now available via the above link.
The new iteration of this guidance contains updates to the referral process and to the on-call structure of the Intelligence and Financial Investigation teams.
05 January 2018 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Mob/Viber/WhatsApp : +44(0)7791145923
>>> Calculating a Settlement date – from the date of entry clearance was issued from the date the applicant entered the UK ?
The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.
If the delay is more than 180 days, the applicant can only include time after the applicant entered the UK in the continuous period calculation.
Schedule 10 to the Immigration Act 2016 comes into force on Monday 15 January 2018. It will make changes to the way in which immigration bail is managed by both the Secretary of State for the Home Department (SSHD) and the First-tier Tribunal (Immigration and Asylum Chamber). This letter is to update you on the main changes relating to the First-tier Tribunal.
The current distinction between bail processes in Scotland and the rest of the UK will be removed; with procedures and terminology in use in England, Wales and Northern Ireland applying in Scotland. The terms ‘Bail Bonds’, ‘Recognizance’ and ‘Caution’ will all become known as ‘Financial Conditions’. Financial Conditions will only be payable when bail conditions are not complied with and a Judge has decided an amount is due following a ‘Payment Liability Hearing’ (rather than a Forfeiture Hearing), so it will no longer be possible to take a deposit of bail money in Scotland as a condition of granting bail. Anyone with funds currently lodged with the Tribunal will be entitled to receive a full refund on agreeing to an equivalent Financial Condition and will be contacted by the Glasgow hearing centre.
Where the Tribunal orders that a Financial Condition be paid because of the breach of bail conditions, this can be done in person at a bank or by use of BACS – there will not be the ability to attend a court to make the payment as currently. In the event of non-payment, in England and Wales enforcement of Financial Conditions will move from magistrates’ courts to the county court. In Scotland it will be enforced by the sheriff court, and in Northern Ireland by a county court.
Where a person has been in immigration detention for a period of more than four months a new duty is to be placed on the SSHD to refer the matter to the Tribunal for a decision on whether bail should be granted. This will not apply where the detainee gives written notice that they do not wish their case to be referred. Where a reference is made, it is to be treated as if it were an application for bail.
Once it has granted bail, it will be possible for the Tribunal to direct that the SSHD may exercise power to amend or remove conditions of bail, or to impose new conditions. This means in effect that the Tribunal will be able to ‘transfer’ the management of bail to the Home Office. This will be highlighted on a revised version of the B1 Bail Application Form (see below) and the Tribunal will make any intention to do so clear at the bail hearing, so that the parties may make representations if they wish. This will be particularly important in the first few days of commencement when the current version of the B1 Application Forms may still be before the Tribunal.
Amendments reflecting these changes will be made to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the Judicial Bail Guidance and to bail forms and notices which will be used across the UK.
Revised versions of the B1 Bail Application Form will be available for download from Formfinder (https://hmctsformfinder.justice.gov.uk/) on 12 January 2018. There will also be a new B2 Bail Variation application form for use where a person who is on Tribunal bail would like to change the conditions. If the Home Office wish to apply to the Tribunal to vary the conditions of bail they will use a B3 Application form.
Where an email address has been provided by yourselves on either the B1 or B2 forms bail decisions, where possible and when appropriate, will be served electronically rather than in hard copy.
HMCTS Immigration and Asylum Jurisdictional Support Team”
Комментарии
> Home Office and Department for Exiting the European Union Policy Paper 'Citizens' rights: administrative procedures in the UK' (7 November 2017) : https://www.gov.uk/government/publications/...dures-in-the-uk
New document sets out how EU citizens will be supported through an application process which is streamlined and easy to use.
> Dependence on an EEA national – non-financial dependency
Dependency does go wider then just financial dependency – as established in the court case of the Reyes v Secretary of State for the Home Department (EEA Regs: dependency) [2013] UKUT 314 (http://www.bailii.org/uk/cases/UKUT/IAC/2013/00314_ukut_iac_2013_r_philippines.html), particularly at paragraph 19. Where there is no financial dependency, the physical dependency will have to be substantial and well evidenced.
> Appendix FM Applications – Financial Aspect – Income from stocks and shares
Such income from stocks and shares can also count towards meeting the financial requirement. The applicant would not have to wait six months, compared to the funds from savings:
Appendix FM-SE 11A. In respect of cash savings:
(a) The savings may be held in any form of bank/savings account (whether a current, deposit or investment account, provided by a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating), provided that the account allows the savings to be accessed immediately (with or without a penalty for withdrawing funds without notice). This can include savings held in a pension savings account which can be immediately withdrawn.
(B) Paid out competition winnings or a legacy which has been paid can contribute to cash savings.
© Funds held as cash savings by the applicant, their partner or both jointly at the date of application can have been transferred from investments, stocks, shares, bonds or trust funds within the period of 6 months prior to the date of application, provided that:
(i) The funds have been in the ownership and under the control of the applicant, their partner or both jointly for at least the period of 6 months prior to the date of application.
(ii) The ownership of the funds in the form of investments, stocks, shares, bonds or trust funds; the cash value of the funds in that form at or before the beginning of the period of 6 months prior to the date of application; and the transfer of the funds into cash, are evidenced by a portfolio report or other relevant documentation from a financial institution regulated by the appropriate regulatory body for the country in which that institution is operating.
(iii) The requirements of this Appendix in respect of the cash savings held at the date of application are met, except that the period of 6 months prior to the date of application in paragraph 11(a) will be reduced by the amount of that period in which the relevant funds were held in the form of investments, stocks, shares, bonds or trust funds.
(iv) For the purposes of sub-paragraph 11A©, “investments” includes funds held in an investment account or pension account or fund which does not meet the requirements of paragraphs 11 and 11A(a).
> What to do is someone is in detention Guide : https://docs.google.com/document/d/1MroeL6yhnZcY8gCFwldjCV-_uP7U87Y7byXPWLaZcOw/edit
> Free Movement and Deportation: Nonjudicial Restrictions on the Right to Work are Lawful : https://asadakhan.wordpress.com/2016/12/30/free-movement-and-deportation-nonjudicial-restrictions-on-the-right-to-work-are-lawful/
Interesting piece of information in relation to the lawfulness of the restrictions on the right to work under the EEA law
> New guidance on the Surinder Singh route can be found here : https://www.gov.uk/government/publications/free-movement-rights-family-members-of-british-citizens
“Use it or lose it “ (when the Brexit is formalized”)
The changes to the guidance include an additional clarification that a British citizen does not need to be a “qualified person” in their initial three months back in the UK to sponsor a family member in a Surinder Singh application. There are also new sections about retained rights of residence and the assessment of UK residence prior to 25 November 2016.
> Worker Registration Scheme (WRS) extension unlawful, Court of Appeal confirms : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1751.html
In a decision of 7 November 2017, the Court of Appeal unanimously found, yet again, that the extension of the Worker Registration Scheme from 1 May 2009 to 30 April 2011 was unlawful and incompatible with EU law.
The Court of Appeal also considered a point about the meaning of “resided” in article 17(1)(a) of the Citizens Directive, which allow workers or self-employed people who retire to acquire permanent residence earlier than the usual five years. This is provided they have worked in the country for the preceding 12 months and “have resided there continuously for more than three years. So the court found that “resided” in that context meant “legally resided”.
>>> Visa refused ? It is not all lost. Know your rights – a very useful paragraph of the UK immigration Rules – exceptions for overstayers : https://www.gov.uk/guidance/immigration-rules/immigration-rules-part-1-leave-to-enter-or-stay-in-the-uk#pt1stay
Para 39 :
Exceptions for overstayers
1. 39E. This paragraph applies where:
1. (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. (2) the application was made:
1. (a) following the refusal of a previous application for leave which was made in-time or to which sub-paragraph (1) applied; and
2. (b) within 14 days of:
1. (i) the refusal of the previous application for leave; or
2. (ii) the expiry of any leave extended by section 3C of the Immigration Act 1971; or
3. (iii) the expiry of the time-limit for making an in-time application for administrative review or appeal (where applicable); or
4. (iv) any administrative review or appeal being concluded, withdrawn or abandoned or lapsing.
Practical use of para 39E.
Say, someone has his/her (extension) application refused in the UK and appeals. The appeal process nowadays in the UK takes sometimes more than a year, so in case of the above applicant can then meet the relevant immigration Rule(s), he/she may withdraw the appeal and make a fresh application within the 14 days. The applicant would then benefit from the provision of the above para 39E and not be treated as an overstayer. Therefore it is then possible to even lodge a same day service (extension) application at the UK BA Premium Service Centre (PSC).
Note, though, that the applicant in the above scenario may not make a fresh application whilst she/he is on the Section 3C leave (that is, while the appeal is pending following a refusal of the previous immigration application. The general opinion is that those UK BA caseworkers at the PSC tend to be more forgiving than the caseworkers somewhere at the postal application end, who one never gets to see. The bottom point is that, if one's appeal is bound to fail, it would be good to consider a new application.
Are you or your friends and family members in a similar situation ? We may be able to help. See our friendly web-site and read the reviews at www.legalcentre.org
>>> The applicant's FLR(FP) application is certified as clearly unfounded by the UK BA. Further options ?
If the applicant's FLR(FP) decision was certified by the UK BA as clearly unfounded, and the applicant's leave as granted has expired, then the applicant's continuing leave under the Section 3C has already come to an end. The applicant then does have the 14 days to make another application, but the applicant will remain an overstayer in the meantime (with no right of employment etc).
>>> “Worker or self-employed person who has ceased activity” - EEA law
See the Regulation 5, namely :
“Worker or self-employed person who has ceased activity”
5.—(1) In these Regulations, “worker or self-employed person who has ceased activity” means an EEA national who satisfies a condition in paragraph (2), (3), (4) or (5).
(2) The condition in this paragraph is that the person—
(a) terminates activity as a worker or self-employed person and—
(i) had reached the age of entitlement to a state pension on terminating that activity; or
(ii) in the case of a worker, ceases working to take early retirement;
(b) pursued activity as a worker or self-employed person in the United Kingdom for at least 12 months prior to the termination; and
(c) resided in the United Kingdom continuously for more than three years prior to the termination.
(3) The condition in this paragraph is that the person terminates activity in the United Kingdom as a worker or self-employed person as a result of permanent incapacity to work; and—
(a) had resided in the United Kingdom continuously for more than two years prior to the termination; or
(b) the incapacity is the result of an accident at work or an occupational disease that entitles the person to a pension payable in full or in part by an institution in the United Kingdom.
(4) The condition in this paragraph is that the person—
(a) is active as a worker or self-employed person in an EEA State but retains a place of residence in the United Kingdom and returns, as a rule, to that place at least once a week; and
(b) prior to becoming so active in the EEA State, had been continuously resident and continuously active as a worker or self-employed person in the United Kingdom for at least three years.
(5) A person who satisfied the condition in paragraph (4)(a) but not the condition in paragraph (4)(b) must, for the purposes of paragraphs (2) and (3), be treated as being active and resident in the United Kingdom during any period during which that person is working or self-employed in the EEA State.
(6) The conditions in paragraphs (2) and (3) as to length of residence and activity as a worker or self-employed person do not apply in relation to a person whose spouse or civil partner is a British citizen.
(7) Subject to regulation 6(2), periods of—
(a) inactivity for reasons not of the person’s own making;
(b) inactivity due to illness or accident; and
(c) in the case of a worker, involuntary unemployment duly recorded by the relevant employment office,
must be treated as periods of activity as a worker or self-employed person, as the case may be.
>>> Return of passport by Home Office to sit Secure English Language Test
The Home Office has confirmed that where it holds the passport of a migrant who wishes to sit the Secure English Language Test (SELT) it will either return the passport to enable the migrant to sit the SELT or will confirm directly with the SELT centre that the passport is held and is genuine. See https://2xsoic30m4ba2ervd35c9n41-wpengine.netdna-ssl.com/wp-content/uploads/2016/09/16.09.13-Home-Office-FOI-response-40803-to-DJ-Webb-Solicitors-re-Secure-English-Language-Tests.pdf
>>> Appendix FM (Settlement applications of partners of the UK/Settled nationals) and para 320(11) Refusals
Did you have some sort of breach of the immigration conditions during your stay in the UK ?The following information may be of importance to you.
Whilst the Appendix FM purports to be a full code, the para 320(11) on general grounds for refusal will also apply. This gives the UK BA powers to refuse entry clearance, for example, if the person has a poor immigration history. Whilst it is not the mandatory re-entry ban that is in place under the PBS (Points Based System), it is a discretionary re-entry ban that was imported into Appendix V, but left out of Appendix FM, so that applicants do not know about it if they rely on Appendix FM on its own. Para 320(11) seems to be used not only for those with ‘atrocious’ immigration histories but is being applied to others such as to people who have gone home to regularise their stay after having made a ‘frivolous’ application in the UK. They are told they will be refused entry clearance to the UK for two years due to their failure to meet the suitability requirement.
>>> SET DV (Settlement on the basis of Domestic Violence) refusals – not appealable ?
According to the UK BA, despite the SET DV applications technically also being human rights applications, the UK BA stance is that the SET DV refusals are not appealable.
>>> EEA application – old photos = refusal
It has come to our attention that the UK BA started rejecting the EEA type application when the applicants submit photos older than 1 month. The UK NA in that case keeps the applications for some 4 months, then returns the applications as “rejected” (no right of appeal) as well as the UK BA also deducts the £25 “application rejection admin fee”.
Just a reminder that with any UK BA application the applicant's photos must not be older than 1 MONTH on the date of the application.
>>> Tier 2 Sponsorship – the salary must not drop below the minimum threshold due to fluctuations in the exchange rate
According to the UK BA, the migrant's salary can never drop below the minimum threshold due to fluctuations in the exchange rate, something which is covered by guidance (in that this is not noted as one the exemptions for salary dropping below the threshold). The only way the sponsor would be able to determine whether this has happened is by checking the exchange rate.
How the sponsor chooses to do this will be up to them, but if they are found to have been sponsoring a migrant who is being paid below the threshold then compliance action is likely to be taken against them.
>>> UK Visas and Immigration news: Government doubles exceptional talent visa offer : https://www.gov.uk/government/news/government-doubles-exceptional-talent-visa-offer
Double the number of visas will be made available to leading figures and individuals who show promise in technology, science, art and creative industries, the government announced today.
>>> Updated UK Visas and Immigration Nationality Guidance (multiple documents) :
- Right of Abode (nationality guidance) : https://www.gov.uk/government/collections/right-of-abode-nationality-guidance
- British citizenship (nationality guidance) :
https://www.gov.uk/government/collections/british-citizenship-nationality-guidance
- British overseas citizens (nationality guidance) : https://www.gov.uk/government/collections/british-overseas-citizens-nationality-guidance
- British overseas territories citizens (BOTC) (nationality guidance) : https://www.gov.uk/government/collections/british-overseas-territories-citizens-botc-nationality-guidance
- Requirements and considerations common to all types of British nationality (nationality guidance) : https://www.gov.uk/government/collections/requirements-and-considerations-common-to-all-types-of-british-nationality-nationality-guidance
- British subjects (nationality guidance) : https://www.gov.uk/government/collections/british-subjects-nationality-guidance
- British protected persons (nationality guidance) : https://www.gov.uk/government/collections/british-protected-persons-nationality-guidance
- Historical background information on nationality (nationality guidance) : https://www.gov.uk/government/collections/historical-background-information-on-nationality-nationality-guidance
- British nationals overseas (nationality guidance) : https://www.gov.uk/government/collections/british-nationals-overseas-nationality-guidance
>>> Entry Clearance – Settlement Visa to enter the UK granted yet expires before the migrant travels to the UK. Options ?
Should the above happen, that is, the Entry Clearance – Settlement Visa to enter the UK is granted yet expires before the migrant travels to the UK, the migrant then can use the “Vignette Transfer” option on the UK BA web-site to re-instate the “lapsed” Settlement Entry Clearance Visa. The current UK BA fee for this Vignette Transfer application is £169.00.
>>> Supreme Court rejects a right to contribution-based benefits for Zambrano carers : https://www.supremecourt.uk/cases/docs/uksc-2015-0215-judgment.pdf
In R (HC) v Secretary of State for Work and Pensions [2017] UKSC 73 the Supreme Court decided that Zambrano carers are not eligible to contribution-based benefits which have a “right to reside” test. The benefits affected by the decision are income support, child benefit, child tax credits, and housing and homelessness assistance. The decision, while no doubt correct in law, leaves behind a broken system.
>>> Northern Irish tribunal finds against Home Office on dual nationality : https://www.irishtimes.com/news/social-affairs/couple-wins-appeal-for-visa-after-derry-wife-refuses-to-identify-as-british-1.3288670
A woman from Northern Ireland who refuses to identify as British in order to facilitate her husband’s immigration application has succeeded in her First-tier Tribunal challenge against the refusal of a residence card.
The Home Office had told Emma DeSouza, who is from Magherafelt and holds an Irish passport, that as a British citizen she could not use more generous EU free movement laws to sponsor her American husband Jake DeSouza. The essence of the tribunal decision in the couple’s favour is that, due to the Good Friday Agreement, people from Northern Ireland can be Irish citizens only and so eligible to use the more liberal EU sponsorship rules. As mentioned in our latest media round-up, the case has already been reported in the Irish press.
It had been the position of the Home Office that people from Northern Ireland who hold Irish citizenship are also British. As such, they were not allowed to use their Irish citizenship as a back door to family reunion.
>>> High Court: potential homelessness not a justification for detention : http://www.bailii.org/ew/cases/EWHC/Admin/2017/2797.html
The High Court in R (MS) v Secretary of State for the Home Department [2017] EWHC 2797 (Admin) has found that in circumstances where a person would have no option but to stay on the streets after release from detention, the Home Office has a duty under Article 3 of the European Convention on Human Rights to provide them with suitable bail accommodation with reasonable speed. Potential homelessness cannot be a reason for prolonged detention.
>>> The current UK BA Good Character Requirement in relation to the Naturalization applications can be found here : https://www.gov.uk/government/publications/good-character-nationality-policy-guidance
>>> The “hostile environment” seeps into criminal trials: defendants must state nationality or face prison : http://www.legislation.gov.uk/uksi/2017/915/article/3/made
From this week, defendants in the criminal courts must state their nationality. Anyone who fails to do so can be jailed for up to a year.
>>> Expired passport with a valid visa. Options ?
If your passport has expired you can still use the valid visa in your expired passport, but you will need to show your expired passport and your new passport when you are travelling to and from the UK. See https://www.gov.uk/transfer-visa
>>> Can a child on a visitor visa in the UK change his/her status and remain in the UK ?
Children who are visitors in the UK may, under Para 298, switch to remain in the UK, provided they meet the requirements of the Para 298
>>> Can a spouse of British citizen with a joint British citizen child, including a dual national child, switch in-country, while being on a visitor's visa ?
A spouse of a British citizen with a joint UK (or UK/Dual national child) may make an in-country (preferably, a same day service application as the level of the so-called discretion is higher in the PEO applications) FLR (FP) application based on the British child. If approved, the leave to remain will be the so-called L(eave)T(o)R(emain) under the 10 year Route to Settlement outside the rules. Then, of course, the applicant may switch into the “proper” LTR as a spouse of a UK citizen on the so-called 5 year Route to Settlement.
>>> UK Visas and Immigration Guidance on policy for UK visas under Tier 1 (Exceptional Talent) (24 November 2017) : https://www.gov.uk/government/publications/guidance-on-policy-for-uk-visas-under-tier-1-exceptional-talent
This is the full guidance on UK Visas and Immigration's policy on visa applications under Tier 1 (Exceptional Talent).
>>> Domestic violence cases can attract a right of appeal, says High Court : http://www.bailii.org/ew/cases/EWHC/Admin/2017/2589.html
Since April 2015, only very limited types of immigration case can be appealed. In the case of AT, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 2589 (Admin), the High Court found that despite what the Immigration Rules say, an application for indefinite leave to remain on the basis of domestic violence can be a human rights claim and therefore attract a right of appeal.
>>>UK BA pays out £24,515.43 by order of a Deputy High Court judge for false imprisonment : http://www.bailii.org/ew/cases/EWHC/Admin/2017/2857.html
Last week Suraj Saptoka was in total awarded (including special damages for loss of earnings) the amount of £24,515.42, together with interest, by order of a Deputy High Court judge for false imprisonment in the case of Sapkota v Secretary of State for the Home Department [2017] EWHC 2857 (Admin). Mr Saptoka had been unlawfully detained for 36 days after immigration officials wrongfully decided he was attempting to extend his leave to remain by entering into a bigamous marriage.
This massive pay out by the UK BA is not unique. The Secretary of State routinely makes offers to settle where she concedes the unlawfulness of the detention, meaning pure quantum cases often do not reach the courtroom.
>>> First Tier Tribunal slapped down for ignoring Immigration Rules in deportation case : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1782.html
In Secretary of State for the Home Department v AM (Jamaica) [2017] EWCA Civ 1782 the Court of Appeal found that a First-tier Tribunal decision to allow a Jamaican man’s deportation appeal under Article 8 contained a material error of law and set it aside.
In criminal deportation appeals, the court found, the FTT must do more than “simply” engage in a Razgar assessment under Article 8. A finding that deportation would be disproportionate, without considering the substance of paragraphs 398 and 399 of the Immigration Rules, is a material error of law.
>>> Strasbourg dismisses compensation claim for not allowing asylum seeker to work : http://hudoc.echr.coe.int/eng?i=001-174789
Daniel Negassi v the United Kingdom (application no. 64337/14) was an appeal to the European Court of Human Rights with a complaint that the Home Office’s failure to grant Mr Negassi permission to work, while waiting for a decision on his asylum claim, was a breach of his right to respect for his private life under Article 8 of the European Convention of Human Rights (ECHR).
The court found Mr Negassi’s complaint to be inadmissible because it could not be said that the applicant suffered a “significant disadvantage” in the sense that the decision not to grant him permission to work led to serious adverse consequences. Mr Negassi, the court stated, had not suffered from any actual prejudice.
>>> UK BA Guidance on Fee waiver: Human Rights-Based and other specified applications : https://www.google.co.uk/url…
>>> Dental x-rays in age assessment: art not science : http://www.bailii.org/uk/cases/UKUT/IAC/2017/446.html
The Upper Tribunal Judge Rintoul’s elegant, succinct summary of the law on age assessment, with which he opens the determination in R (AS) v Kent County Council (age assessment; dental evidence) [2017] UKUT 446, reminds one that pinpointing the age of a young person claiming asylum, other than where there is documentary proof, is an art, not a science. It is a question of fact for decision by the court or tribunal itself, as the Supreme Court explained in R (A) v London Borough of Croydon [2009] UKSC 8.
>>> Scottish judge: discrimination based on immigration status unlawful : https://www.scotcourts.gov.uk/search-judgments/judgment…
There are a number of interesting findings in the Court of Session judgment, published today, in DN against Secretary of State for the Home Department [2017] CSOH 144.
DN is a Ugandan child who applied for entry clearance to join her mother in the UK. Her mother holds discretionary leave (DL) to remain. DN’s application and subsequent appeal were refused, and her applications for leave to appeal were also refused. The later hearing at the Court of Session established that the discrimination based on the immigration status was unlawful, though.
This is a rare and a significant finding of discrimination and it will be interesting to see how (if at all) it will be taken on board by the Secretary of State.
>>> The Home Office is entitled to ignore a judge’s decision to grant bail : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1893.html
The Court of Appeal has reluctantly agreed that the Home Office has the power to ignore a First-tier Tribunal’s decision to grant bail to an immigration detainee. However, on the particular facts of the case, the decision to refuse consent to bail was deemed unlawful.
Despite the impropriety of a departmental civil servant being able to overrule an independent and impartial judge, the Court of Appeal was duty bound to give effect to the clear intention of Parliament. This decision could lead to more regular use of the power to refuse consent by the Home Office, which is deeply concerning.
>>> The definition of a "current account" in relation to the Bank Account measures under the Immigration Act 2016 (21 November 2017) by the UK BA
From the 1st January 2018, the Immigration Act 2016 (the Act) will require banks to perform periodic checks on ‘current accounts’ to ensure that they are not operated by ‘disqualified persons’ (i.e. a person who is in the UK but who does not have the required leave to enter or remain in the UK). So, what exactly is the definition of the “current account” by the UK BA ?
According to the UK BA, the Government is not able to provide legal guidance on the Immigration Act 2016, and this information does not constitute legal guidance. There is no legal definition of a current account, but the Government set out its view of a current account when the Immigration Act 2014 regime was debated in Parliament. On 12 December 2016, Lord Young reiterated this view in relation to the Immigration Act 2016 (Col 15, Vol 777). The UK BA also provids a link to relevant Hansard debate below this.
“Not all bank accounts are within scope of the requirement to make an immigration check under the 2016 Act. This instrument specifies that current accounts operated by or for individuals who are acting for the purposes of a trade, business or profession are excluded from the requirement to make an immigration check. In practice this means that firms are required to conduct checks on existing personal current accounts. Firms are not required to extend checks to all existing current accounts such as corporate or business accounts. This ensures that the checks undertaken by banks are appropriately targeted and proportionate. This reflects the Government’s ongoing view that current accounts are the gateway product to other financial services and a settled life in the UK. Such an account would be expected to provide functionality to hold deposits and make withdrawals without having to give notice. It would also typically enable the customer to receive and make payments through a number of different methods, including by cheque, direct debit, standing order, continuous payment authority or other electronic payments. Withdrawals, money transfers and other payment transactions can typically be conducted through various channels including ATMs, branch, online, mobile or telephone banking. Many current accounts also have overdraft facilities.
For the purposes of the Immigration Act, “current accounts” should also continue to include “basic bank accounts”. The requirement to make an immigration check does not apply to savings accounts, which in the Government’s view are intended to be opened for the primary purpose of accruing savings and not for day-to-day transactional banking, but which may provide some of the functionality I have just referred to. This also takes into account existing prohibitions in the 2014 Act, which mean that a disqualified person cannot evade the legislation by closing their current account and opening a business account as a sole trader or a charity.
I turn now to notifications. If a firm makes an immigration check on a personal current account and finds a match, the bank is required to notify the Home Office using a secure Home Office portal. To allow the Home Office to confirm the match and instruct on next steps, this instrument requires firms to provide certain information. This includes details of any other accounts that the firm holds for the disqualified person and the balances held in those accounts. Information about regular payments into accounts above a threshold of £200 has been included to allow the Home Office to identify patterns of payments that may constitute evidence of illegal working. The requirement to provide information is limited to what firms hold and can retrieve. It does not require the further investigation of data not held. The Home Office will then confirm the match, based on its data, and instruct the firm on the next steps.”
Individuals should also be referred to gov.uk for guidance on what to do if their account is closing because they are in the UK illegally: https://www.gov.uk/government/publications/current-account-closed-or-refused-based-on-immigration-status
>>> Immigration changes set out in the Industrial Strategy White Paper - Building a Britain Fit for the Future (1 December 2017) : https://www.gov.uk/government/publications/industrial-strategy-building-a-britain-fit-for-the-future
The key points relation to immigration are as follows :
· "We have doubled the number of available visas in the Tier 1 (Exceptional Talent) route available to those who are already recognised as global leaders or who show considerable promise in their fields. This recognises the importance of supporting those working in the digital technology, science, arts and creative sectors, and ensures that the UK can continue to welcome international talent to work in these key emerging and innovative industries. (p88)
· The government is also changing immigration rules to enable world-leading scientists and researchers endorsed under the Tier 1 route to apply for settlement after three years (p88)
· and to make it quicker for highly-skilled students to apply to work in the UK after finishing their degrees. (p89)
· We are relaxing the labour market test to allow UK Research and Innovation and other select organisations to sponsor researchers, making it easier to hire international researchers and members of established research teams. (p89)
· The National Academies are considering how they can encourage top global research talent to come to the UK through the Research and Innovation Talent scheme within Tier 1 of the visa system. (p89)
Wider policy comments:
Research and innovation are global endeavours and talented and experienced people in these fields are internationally mobile. Businesses have talent scouts around the world to spot opportunities in the most creative clusters, and investment tends to follow talent. The UK has the second largest bilateral flow of scientists and we want the UK to be a magnet for world-class talent. We will increase the number of scientists working in the UK and enable leading scientists from around the world to work here. We will continue to recruit and retain the best talent and ensure the UK remains a world-leader in science and innovation through our Rutherford Fund. (p88)
We want to continue to be an attractive destination for the world’s most talented and innovative people and the UK will continue to remain a global, outward looking nation and home to the brightest and best. Our thriving and flexible labour market continues to attract international businesses and investment, enabling businesses to respond and adapt to economic change. To ensure that our labour market remains competitive, the Migration Advisory Committee has recently undertaken a wide-ranging consultation to form a UK-wide view of our skills needs, ensuring our future migration system supports our Industrial Strategy. We will consider the Migration Advisory Committee’s forthcoming conclusions carefully. (p125)"
>>> Home Office guidance on EEA public policy/security decisions updated : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/661378/eea-decisions-on-grounds-of-public-policy-and-public-security-2.0.pdf
>>> Asylum “lottery”: some hearing centres grant twice as many appeals : http://www.bbc.co.uk/news/uk-42153862
First-tier Tribunal appeals against asylum decisions are twice as likely to succeed at some hearing centres compared to others, a BBC investigation has found.
47% of appeals succeeded at Taylor House, whereas the success rate was as low as 21% at Yarl’s Wood and 24% in Belfast. The data comes from Freedom of Information requests covering January 2013 to September 2016 and excluding fast-track cases.
>>> Failure to provide evidence of right to work not a fair reason to dismiss, says Employment Appeal Tribunal : http://www.bailii.org/uk/cases/UKEAT/2017/0250_16_0510.html
In the case of Baker v Abellio London Ltd [2017] UKEAT 0250_16_0510, the Employment Appeal Tribunal found that not having documents confirming an employee’s right to work is not in itself a fair reason for dismissal. However, genuinely believing that you need the documents can be a fair reason for dismissal
>>> Proportionality principle no help in EU mother’s income support claim : www.bailii.org/uk/cases/UKUT/AAC/2017/440.pdf
LO v SSWP (IS) [2017] UKUT 440 (AAC) involved the overlap between EU law, family law and welfare benefits, focusing particularly on the role of proportionality. All this is academic to LO, who just wanted her income support. Despite compelling personal circumstances, there was no basis on which the tribunal could find a right to reside and make her eligible for that benefit.
The decision affirms the existing line of cases in this area, but the idea of proportionality as a liberalising influence may be examined again by the courts.
>>> Expert reports in human rights cases must be up to scratch : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1871.html
In HK, HH, SK and FK v Secretary of State for the Home Department [2017] EWCA Civ 1871 the Court of Appeal found that asylum seekers could be returned to Bulgaria under the Dublin III Regulation. Removal would not violate the appellants’ Article 3 rights, despite medical reports on their poor mental health and NGO evidence on the poor treatment of asylum seekers by the Bulgarian authorities
>>> Paid for the Same Day Service (PSC/PEO) application but submitting the application after the leave (visa) expires ? You are risking a refusal
Unless there were expeptional circumstances, under the Para 34 of the Rules the UK BA is likely to refuse the PEO application when such an application lodged even on the following day the leave (visa) expires, despite the application paid for on-line before the visa expired :
34G:
“For the purposes of these rules, the date on which an application (or a variation of application in accordance with paragraph 34E) is made is:
…
(iv) where the application is made via the online application process, the date on which the online application is submitted whether or not a subsequent appointment is made at a Home Office premium service centre”
>>> UK Visas and Immigration Guidance - Employer sponsorship: restricted certificate allocations (4 December 2017) : https://www.gov.uk/government/publications/employer-sponsorship-restricted-certificate-allocations
A list of restricted certificates allocated each month for employer sponsorship in Tier 2 (General)
>>> UK Visas and Immigration guidance: Country returns guide (4 December 2017) : https://www.gov.uk/government/publications/country-returns-guide
Guidance on returning immigration offenders to their country of origin
>>> UK BA can revoke ILR without the right of appeal
Under the current Rules and, namely, under the Section 76, the UK BA can revoke the ILR (Indefinite Leave to Remain) with no right of appeal. Should that happen, the remedy may the the so-called Judicial Review (JR)
08 December 2017 – Helpful and just interesting Immigration News from the Immigration Lawyers who can really help - www.legalcentre.org – Ph/Viber/WhatApp : 07791145923
>>> Statement of changes to Immigration Rules HC 309, 7 December 2017 : https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc309-7-december-2017
The purpose of the main changes is to:
· Take account of the future commencement of the immigration bail provisions in Schedule 10 to the Immigration Act 2016.
· Provide for entry clearance to be issued electronically.
· Allow standard and marriage/civil partnership visit visa holders to transit using the same visa.
· Clarify and remove inconsistencies from the rules relating to indefinite leave to remain for main applicants and their dependants in work categories.
· Double the number of available places in the Tier 1 (Exceptional Talent) category to 2,000, and allow accelerated settlement for certain applicants.
· Consolidate and clarify the rules for Tier 1 (Entrepreneur) applicants.
· Make new Tier 2 provisions for research positions and for students switching from Tier 4.
Into effect from:
· The changes to Appendix M set out in paragraph M1., and to Appendix N set out in paragraph N2. of the statement shall take effect on 28 December 2017.
· The changes to Appendix G set out in paragraph G1. of the statement shall take effect on 1 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 1 January 2018, the application will be decided in accordance with the Immigration Rules in force on 31 December 2017.
· The changes to Part 6A set out in paragraphs 6A.22 and 6A.23, to Appendix A set out in paragraphs A16. to A19., and to Appendix J set out in paragraphs J1. to J11. of the statement shall take effect on 11 January 2018. However, if an applicant has made an application for entry clearance or leave to remain using a Certificate of Sponsorship that was assigned to him by his Sponsor before 11 January 2018, the application will be decided in accordance with the rules in force on 10 January 2018.
· The changes to Part 5 set out in paragraphs 5.13 to 5.15 and 5.18 to 5.19, to Part 7 set out in paragraphs 7.3 to 7.5 and 7.7, to Part 8 set out in paragraphs 8.20 and 8.36, and to Appendix Armed Forces set out in paragraph AF2. of the statement shall take effect on the commencement of Schedule 10 to the Immigration Act 2016.
· The other changes set out in the statement shall take effect on 11 January 2018. However, in relation to those changes, if an application has been made for entry clearance or leave to enter or remain before 11 January 2018, the application will be decided in accordance with the Immigration Rules in force on 10 January 2018.
Расшифровка изменений в Правилах. Важное выделено красным цветом.
>>> New statement of changes to the Immigration Rules: HC309 – Clarification of some important points : https://www.gov.uk/government/publications/...7-december-2017
This is an in-depth look at our previous report from the 7th December 2017 on the new statemented of changes to the Immigration Rules HC 309. The most important points are, as follows :
Except where otherwise indicated, these changes will come into force on 11 January 2018, although applications made before 11 January 2018 will be decided in accordance with the Immigration Rules in force on 10 January 2018.
- 10 year ban expanded
A ten-year ban on re-entry is introduced for those who used deception in an application for “leave to enter or remain, or in order to obtain documents from the Secretary of State or a third party required in support of the application”. It used to be that a ten-year ban was imposed on those who used deception in an application for entry clearance only. Family members applying under Appendix FM of the Immigration Rules are still NOT subject to this ban.
- Absences for PBS dependants are now limited to 180 days in line with the main applicants
This might be one of the changes with the most profound impact. It used to be the case that while PBS migrants had to have been out of the UK for fewer than 180 days in any given 12 months during the qualifying period for Indefinite Leave to Remain, dependants did not have to meet this requirement. As a result, PBS migrants, in particular Tier 1 (investors) and (entrepreneur), have historically ensured that the main applicant in the application was the one who did not need to travel that much, while the “real” businessperson was a dependant, allowing them to travel extensively, usually for business, and still be eligible for Indefinite Leave to Remain.
The 180-day absence criterion is now extended to partners of PBS migrants as well, so that the strategy above will no longer work. This will be apply to those granted leave following an application made after 11 January 2018.
- Electronic entry clearance
Entry Clearance may now be issued electronically. This scheme will be trialed with specific groups (not yet announced) to start with, with a view to general introduction later. Applicants who hold an entry clearance issued in electronic form will not need to present it to an Immigration Officer, who will instead be able to check it electronically. They will only need to present their passport or identity documents. These changes will take effect on 11 January 2018 but the UK BA has not yet confirmed know who would be the first groups to have entry clearance issued electronically.
- Visitors
To date, those visitors who held a standard or marriage/civil partnership visit visa would have needed to obtain a separate transit visa if they want to transit the UK. From 11 January 2018, they will be allowed to transit the UK without the need to obtain a separate transit visa.
Appendix 3 is also being changed to clarify that visitors are not permitted to study at an academy or a school maintained by a Local Authority.
- Immigration bail
This is the one change which does not have a commencement date. The government simply proposes to commence Schedule 10 to the Immigration Act 2016 “as soon as possible”.
Schedule 10 introduces a new concept of immigration bail and transfers those on temporary admission or release onto that new status. In summary, temporary admission and temporary release will no longer exist, and will be replaced by “bail” instead. Once the changes come into force, those who have no prospects of being removed and therefore cannot be detained may still be put on bail.
- Tier 1 (Exceptional Talent)
The changes fulfill the commitments made in the recent Budget to:
double the number of Tier 1 (Exceptional Talent) visas from 1,000 to 2,000. Applicants must be endorsed by a Designated Competent Body (DCB), but the additional 1,000 places will not be allocated between the DCBs. They will instead form a pool of unallocated places which will be drawn on according to need on a first-come first-served basis.
allow exceptional talent visa holders (but not exceptional promise visa holders) to qualify for ILR after three years,
simplify the application for holders of certain peer-reviewed fellowships or senior academic positions.
- Tier 1 (Entrepreneur)
The requirements for Tier 1 (Entrepreneur) have been re-written “to make them clearer and easier to follow”. The requirements themselves are “unchanged”, but for 14 separately listed changes (!). These changes include:
<clarification on the job creation rules,
<clarification on certain documentary evidence to be provided
investments from venture capital firms (which will now need to provide a letter);
<applicants will no longer be able to rely on investments and funds already relied on by another Tier 1 (Entrepreneur) or that migrant’s business or close family member. These investments and funds can no longer be relied on to “prevent recycling of funds between applicants”.
<clarifications to the evidential requirements for those switching from Tier 1 (General) to Tier 1 (Entrepreneur) category
- Tier 2
This category is also seeing a number of changes, but the most significant ones are:
<applicants switching from Tier 4 to Tier 2 (General) will be able to apply as soon as they have completed their courses, rather than only after having received their final results
<The introducing of further exemptions to the Resident Labour Market Test for posts held by researcher applicants who are recipients of supernumerary research Awards and Fellowships, and established research team members sponsored by a Higher Education Institution or a Research Council
Perhaps more significantly, paragraph 245AAA(B) is deleted.
This paragraph read:
“the applicant must have been employed in the UK continuously throughout the five years, under the terms of their Certificate of Sponsorship, work permit or in the employment for which they were given leave to enter or remain, except that any breaks in employment in which they applied for leave as a Tier 2 Migrant, or, under Tier 5 Temporary Worker (International Agreement) Migrant as a private servant in a diplomatic household, where in the latter case they applied to enter the UK before 6 April 2012, to work for a new employer shall be disregarded, provided this is within 60 days of the end of their employment with their previous employer or Sponsor”.
It meant that those who had a break of more than 60 days between one employment and the other could not apply for Indefinite Leave to Remain after five years. One could instead apply to renew their leave, but the maximum period of leave under Tier 2 (General) is capped at a maximum of six years. In other words, applicants who had a break of more than 60 days between one employment and the other had to leave the UK after six years, and were never given a chance to apply for Indefinite Leave to Remain. This change is great news for these applicants.
- Students
The changes will allow some part-time students to secure Tier 4 visas. Tier 4 part-time students will not have work rights, will not be able to bring dependants and will not be able to extend in-country.
Part 3 of the Rules is amended so that the minimum age for those coming for short term study is 16 instead of 18.
- Other changes
The wording on relationships for family members of PBS migrants and migrants in other work categories set out in Part 5 of the Rules is changed from being in a “subsisting relationship” to being in a “genuine and subsisting relationship”, bringing the wording in line with those applying under Appendix FM.
The minimum age for overseas domestic workers is raised from 18 to 19. Measures are also introduced to prevent overseas diplomats bringing extended family members to the UK in the guise of domestic workers.
The annual quota of places available under the Tier 5 (Youth Mobility Scheme) has been updated.
>>> Australian supreme court considers British Overseas Citizenship basically worthless : https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA//2017/45.html
“To observe that British overseas citizenship is a juridical relationship between the individual and the United Kingdom, as Mr Fransman describes it, is not to conclude that it is a relationship which for the purposes of s 44(i) renders the BOC a citizen of a foreign power. No party contended that the fact that the foreign power designates a status as that of “citizen” is determinative without consideration of the rights, privileges and obligations conferred under the law of the foreign power. The status of BOC distinctly does not confer the rights or privileges of a citizen as that term is generally understood: a BOC does not have the right to enter or reside in the United Kingdom. Critically, taking into account the purpose of s 44(i), which is to ensure that members of the Parliament do not have split allegiance, it does not appear that Senator Xenophon’s status as a BOC entailed any reciprocal obligation of allegiance to the United Kingdom per se or to Her Majesty the Queen in right of the United Kingdom”.
>>> People accused of TOEIC cheating have in-country right of challenge : http://www.bailii.org/ew/cases/EWCA/Civ/2017/2009.html
The Court of Appeal has held in Ahsan v Secretary of State for the Home Department (Rev 1) [2017] EWCA Civ 2009 that people accused of cheating on the TOEIC English language test and threatened with removal from the UK have the right to challenge that decision in this country rather than from abroad.
>>> Being able to demonstrate “a genuine and subsisting parental relationship” with a qualifying child is an essential requirement to succeed in a human rights appeal involving children : http://www.bailii.org/ew/cases/EWCA/Civ/2017/1967.html
In Secretary of State for the Home Department v VC (Sri Lanka) [2017] EWCA Civ 1967 the Court of Appeal grappled with what this means in the pretty extreme case of the respondent’s children being in care.
>>>Updated Guidance - Status of EU citizens in the UK: what you need to know (8 December 2017) : https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know
>>>Example case studies: EU citizens' rights in the UK (8 December 2017) : https://www.gov.uk/government/case-studies/example-case-studies-eu-citizens-rights-in-the-uk
>>>Communication from the Commission to the European Council (Article 50) on the state of progress of the negotiations with the United Kingdom under Article 50 of the Treaty on European Union (8 December 2017) : https://ec.europa.eu/commission/sites/beta-political/files/1_en_act_communication.pdf
>>>Joint report from the negotiators of the European Union and the United Kingdom Government on progress during phase 1 of negotiations under Article 50 TEU on the United Kingdom's orderly withdrawal from the European Union (8 December 2017) : https://ec.europa.eu/commission/files/joint-report-negotiators-european-union-and-united-kingdom-government-progress-during-phase-1-negotiations-under-article-50-teu-united-kingdoms-orderly-withdrawal-european-union_en
>>>Comparison of EU/UK Positions on Citizens' Rights - December 2017 : https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/665871/December_-_Joint_technical_note_on_the_comparison_of_EU-UK_positions_on_citizens__rights.pdf
>>> EEA applications – notes from the recent UK BA and ILPA meeting
New settled status/temporary status system for EEA national
The UK BA hopes to introduce new system in September 2018.
Likely to be introduced in stages – aiming to avoid everyone applying upon commencement of the scheme to be able to resource adequately.
Want to make system as straightforward as possible. Ideally will be entirely online – no need to send in identity document – scan it instead.
Presumption will be to grant some form of leave e.g. Leave to Remain or Indefinite Leave to Remain rather than refuse. Need to balance this against preventing fraud. Many people submit false applications claiming to be family member of EEA national as last-ditch attempt to avoid removal – so there will have to be fraud indicators which if triggered will lead to in-depth consideration.
The UK BA hopes that when the new system is introduced people will stop applying for PR docs etc under EU law – but they understand why ILPA members may advise people to do both. They want to try to reduce volumes of applications under current system so they can cope with new system
HMRC data sharing – EEA application (from the recent UK BA and ILPA meeting)
Two kinds of data sharing with HMRC:
Bulk data sharing – every month the UK BA requests HMRC data on all EEA sponsors of new EEA applicants (residence cards). Takes time to get it but that way the data is ready by the time the applicant is considered by caseworkers. Aim is just to check that the EEA national is working right now. Not done for PR applicants.
Manual (one-off) data sharing – done on case-by-case basis, e.g. retained rights case where applicant can’t provide evidence of EEA national’s activities.
If no tax/incorrect tax paid but there is satisfactory evidence of employment/self-employment they won’t refuse the application – but they will refer it to HMRC.
Currently there is a cap on just how much data can be shared by HMRC. With the new settled status scheme there are agreements in place to share much more data with a variety of other government departments.
On-line forms – EEA applications
The UK would like to extend it to all applicants but can’t afford to do this yet. Current priority for online team is introducing online settlement form.
Meanwhile family members applying separately cannot use the online form. Their application will be rejected if they try to do this.
But students/self-sufficient people financially responsible for family members (or supported by family members) can use the online form at their own risk. They need to be careful because it doesn’t prompt them to provide all the information needed.
The NEW EEA paper form
New draft version is with Home Office lawyers for review. New version won’t ask for all absences from UK – in line with online form.
Return of documents
ROD requests now processed within 48 hours.
EEA family permits
Some decisions made in Sheffield at the moment.
Liverpool are helping out with EEA family permit applications made in Indian subcontinent. They are able to assist making EEA family permit decisions because this is their specialist area.
Applications missing EEA national’s identity document
There have to be extremely good reasons not to enclose EEA national’s identity document. Retained rights, domestic violence cases where applicant can’t get hold of document should not be rejected because of failure to provide it. ILPA members pointed out that they are being rejected (or sometimes refused) on this ground. The UK BA will look into it.
Option to accept residence card if PR is going to be refused
Current policy – if someone has applied for a PR card and caseworker considers that they don’t have enough evidence for this but may qualify for residence card caseworker will try to contact applicant or representative once to ask if they would like to vary their application from PR to residence card. If caseworker can’t get through or if the person says no the application will be refused.
If applicant or representative says in covering letter that they would like to be considered for residence card if Home Office considers that they don’t have enough evidence for PR then they will act on this. But be aware that if you follow this option then there will be no right of appeal if you say this and you get a residence card instead of PR card.
New draft version of paper PR form will have box to tick to say you want to be considered for residence card if not enough evidence for PR card – this is with the Home Office lawyers at the moment.
>>> UK Visas and Immigration policy paper - Asylum claims in detention: policy equality statement (13 December 2017) : https://www.gov.uk/government/publications/asylum-claims-in-detention-policy-equality-statement
UK Visas and Immigration policy equality statement on processing asylum claims immigration detention.
Asylum process guidance is available for cases in detention who have claimed asylum, and for entering cases who have claimed asylum into detention
>>> UK Visas and Immigration Guidance: Misuse of rights and verification of EEA rights of residence (14 December 2017) : https://www.gov.uk/government/publications/misuse-of-rights-and-verification-of-eea-rights-of-residence
Guidance on how UK Visas and Immigration assess whether a person has misused an EEA right of residence in the UK
>>> UK Visas and Immigration guidance: EEA decisions taken on grounds of public policy (14 December 2017) : https://www.gov.uk/government/publications/eea-decisions-taken-on-grounds-of-public-policy
Guidance on how UK Visas and Immigration makes decisions on the grounds of public policy and public security
Неработающие партнеры-европейы (EU citizens), кто находятся в браке с гражданами Великобритании (UK), так же могут получить ПМЖ (Settlement - ILR) в Великобритании
>>> It is still possible to apply for Settlement for the EU citizens who did not work and are married to British citizen spouses
Are you an EEA national, who has never or very little worked in the UK and you have been married to a UK citizen spouse for some 10 or more years ? In this case you can benefit from the provisions of the current Immigration Rules, namely, the para 276B, and you may be issued with a Settlement status in the UK under the UK (rather the the EEA Regulations) Immigration Rules
>>> Court of Appeal: visa conditions do not count unless notified in writing: http://www.bailii.org/ew/cases/EWCA/Civ/2017/2134.html
In the recent decision in Anwar v Secretary of State for the Home Department [2017] EWCA Civ 2134 confirms that if the Home Office wishes to impose visa conditions, it must give people written notice of those conditions. If the Home Office fails to do this, or is unable to produce evidence that the notice was sent, it will be unable to rely on any purported breach of a visa condition to justify a decision to refuse a subsequent application, curtail a person’s leave, or remove a person from the UK.
This decision could have wide-reaching ramifications, given that it is not currently Home Office practice to outline any conditions imposed when granting a visa application.
This judgement appears to suggest that the Home Office has consistently and systematically failed to impose conditions when granting applications for leave to remain. This is particularly significant in categories such as Tier 1 (Investor), Tier 1 (Entrepreneur), and Tier 4 (General) where there are numerous, often complex, conditions which must be complied with.
That means that if the Home Office has failed to give written notice of these conditions, they do not apply.
>>> Court of Appeal says test in Zambrano cases remains compulsion not choice: http://www.bailii.org/ew/cases/EWCA/Civ/2017/2028.html
Head note:
“the decision in Chavez-Vilchez represents no departure from the principle of EU law laid down in Zambrano, although it does constitute a reminder that the principle must be applied with careful enquiry, paying attention to the relevant criteria and considerations, and focussing not on whether the EU citizen child (or dependant) can remain in legal theory, but whether they can do so in practice. There is no alteration in the test of compulsion. [paragraph 72]”.
It is clear from the case of Patel that this “test of compulsion” remains difficult to meet.
In other words, Zambrano rights remain limited.
>>> Home Office EU deportation decision overturned for ignoring EU law: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1752.html
In R (Decker) v Secretary of State for the Home Department & Anor [2017] EWCA Civ 1752, the Court of Appeal found that the Secretary of State must show her workings. She, and the immigration tribunals, must explicitly apply relevant tests set out in the EEA Regulations when making decisions. It is an error of law to simply identify considerations which could be relevant without specifically having regard to what the regulations say.
The court also held that a deportation order may be valid even if it is signed when the subject of the order is outside the UK.
>>> Immigration tribunal cannot conditionally allow appeals: http://www.bailii.org/uk/cases/UKUT/IAC/2017/490.html
In an Upper Tribunal determination that will come as a surprise to no-one other than the judge whose decision was under appeal, President Lane has held that it is not possible for the tribunal to allow an appeal on a conditional basis (such as “the appeal is allowed provided the Appellant provides (document) in the future”).
>>> The Law Commission's review of Immigration Rules included in new projects list : https://www.lawcom.gov.uk/13th-programme-of-law-reform/
From the project description:
“Hundreds of thousands of decisions are made annually under the Immigration Rules. Decisions which can be life changing for those seeking entry or leave to remain in the UK and their families.
But the Rules are widely criticised for being long, complex, and difficult to use. On 1 May 2017, the Rules totalled 1096 pages in length and their drafting is poor. Many provisions are duplicated, cross references are often incomplete and some parts are incomprehensible.
Our project will not involve any substantive policy changes or any new legislation. It will instead aim [to] redraft the Rules to make them simpler and more accessible to the user.
The review will not impact the legal basis on which a person has leave to enter or remain in the UK”.
>>> Northern Ireland appeal case on “Chen parents” referred to EU court
The case of an Albanian couple living in Northern Ireland has been referred to Luxembourg over a conflict between English, Irish and European Union law. The decision of the Court of Justice of the European Union in their case could help thousands of other families to establish a right of residence in the UK.
The parents in Ermira Bajratari v Secretary of State for the Home Department are “Chen parents” – non-EU citizens with EU citizen children who can claim derivative rights of residence so long as they are self-sufficient. Two of the Bajratari children are Irish, but although the husband has been working, he has been doing so unlawfully since the expiry of a previous residence card. The Home Office refused to issue a new one, arguing that income from this illegal labour cannot be used to establish self-sufficiency, as per W (China) and X (China) v Secretary of State for the Home Department [2006] EWCA Civ 1494.
The appellants argued, among other things, that this English Court of Appeal decision conflicts both with the original CJEU decision in C-200/02 Zhu and Chen and with a decision of the High Court of Ireland in OA v Minister for Justice, Equality and Defence [2014] IEHC 384. The AIRE Centre intervened as a third party.
>>> Tribunal gives guidance on assessing truthfulness in asylum cases: http://www.bailii.org/uk/cases/UKUT/IAC/2017/491.html
In KB & AH (credibility-structured approach) Pakistan [2017] UKUT 491 (IAC) the tribunal declined to give updated country guidance on the situation of Ahmadis in Pakistan because the case apparently turned on its own facts. This is often the case where the facts favour the appellant; where the facts favour the Home Office a case often seems to be of more general interest.
The head note :
“1. The ‘Credibility Indicators’ identified in the Home Office Asylum Policy Instruction, Assessing credibility and refugee status Version 3.0, 6 January 2015 (which can be summarised as comprising sufficiency of detail; internal consistency; external consistency; and plausibility), provide a helpful framework within which to conduct a credibility assessment. They facilitate a more structured approach apt to help judges avoid the temptation to look at the evidence in a one-dimensional way or to focus in an ad hoc way solely on whichever indicator or factor appears foremost or opportune.
2. However, any reference to a structured approach in relation to the subject matter of credibility assessment must carry a number of important (interrelated) caveats, among which are the following:
-the aforementioned indicators are merely indicators, not necessary conditions;
-they are not an exhaustive list;
-assessment of credibility being a highly fact-sensitive affair, their main role is to help make sure, where relevant, that the evidence is considered in a number of well-recognised respects;
-making use of these indicators is not a substitute for the requirement to consider the evidence as a whole or ‘in the round’;
-it remains that credibility assessment is only part of evidence assessment and, as Lord Dyson reminded decision-makers in MA (Somalia) v Secretary of State for the Home Department[2010] UKSC 49 at [33], ‘the significance of lies will vary from case to case’;
-in the UK context, use of such a structured approach must take place within the framework of EU law governing credibility assessment, Article 4 of the Qualification Directive in particular; and,
-also in the context of UK law, decision-makers (including judges) by s. 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are statutorily obliged to consider certain types of behaviour as damaging to credibility.
3. Consideration of credibility in light of such indicators, if approached subject to the aforementioned caveats, is a valid and useful exercise, based squarely on existing learning.”.
>>> Restricted Certificate of Sponsorship Cut Off Point - 20 December 2017
The current intelligence from ILPA members suggests that the Restricted Certificate of Sponsorship allocation has been reached this month and therefore the minimum number of points required is 65. This has meant that only applications with a Resident Labour Market Test and a salary of £68,000 (or above) have been approved.
>>> Statement of Changes HC 309 - Residence Requirements for PBS Dependants UPDATED with Home Office response (22 December 2017)
“We are making a few changes to settlement rules as part of this rules change. Collectively, these are intended to remove inconsistencies and provide greater clarity for PBS migrants and their dependants on the circumstances in which they may apply and be granted indefinite leave to remain and to ensure that migrants act in a way that is consistent with the spirit of the Immigration Rules. In addition, we included this change at the same time as some of our wider changes to settlement rules for the purposes of coherence.
You will be aware that the policy change in relation to PBS dependants has been planned for over a year. However, in that time, we have considered this further and have taken great care to address the concerns raised. That is why the rules change will not apply retrospectively – we will only consider absences in any future grants of leave. We consider this to be reasonable and applicants will be aware that the Immigration Rules are subject to change and that they should not assume that the rules will necessarily be the same in 5 years’ time.
We are aware that some Tier 1 (Investor) applicants structure their affairs as you have described. However, our general position is that those applying for ILR should have built up substantial ties to the UK, including having lived the majority of their time here. Allowing absences of up to 180 days a year is a very generous provision which allows applicants to continue their business affairs overseas while building ties to the UK. We see no reason not to apply the same requirement to dependant partners as well as to main applicants. In applying for leave, they are declaring an intention to live with their partner in the UK. The child dependant rules also require both parents to be in the UK, or be granted at the same time. We would question what the purpose would be of granting such leave to dependants if the real intention was for the partner/other parent to live apart from their family for the majority of the time. Such activities clearly go against the intention of the rules and may be considered to be a change of circumstances under paragraph 321(ii) or a false declaration under paragraph 321A(2) of the rules. Some PBS dependant partners have been refused re-entry for this very reason. Quantifying in the rules that they may spend up to 180 days a year overseas removes this uncertainty.
With regard to the notice of this change, applicants have the remainder of their existing leave before any absences from the UK will be counted. As the absence provision is up to 180 days a year, they would also be able to have substantial absences from the UK in the early part of their future extension leave, before any such absences reached a level that would affect a future application for settlement. There is also no limit on the number of times an applicant may extend their leave as a PBS dependant. If any partners are unable to qualify for settlement, it is open to them to apply for further extensions and settle in future. The same applies to child dependants.”.
>>> Sole Representative of an Overseas Business – the UK holding company possibility ?
According to the UK BA, the creation of the UK holding company (instead of the subsidiary or branch) may be possible :
“Application for overseas business representatives must ensure that they demonstrate that the company or companies they set up are engaged in the same core business activities as their parent company. Broadly speaking once in the UK business representatives can set up multiple subsidiaries and a holding company would not necessarily be excluded from this but it will be important that the applicant provides in the application a clear explanation of why the applicant has adopted the company structure that the applicant has chosen and how the applicant believes it meets the expectation that companies engage in the same business activities as their parent company.”.
>>> Upper Tribunal Determination re Tier 1 Entrepreneurs (23 November 2017) :
Recent determination from the Upper Tribunal. It relates to a Tier One Entrepreneur application, made with reference to the Article 8 ECHR, whose appeal was considered under the 2014 Immigration Act.
The essence of the submission was that where the Immigration Rules were met, then any removal would breach Article 8 of the ECHR. At paragraph 40, the Tribunal adopted the Home Office’s concession that where the Immigration Rules are met, then the public interest in removal had nominal weight under question 4 of Razgar.
>>> Update documents re EU citizens' rights (22 December 2017)
- Status of EU citizens in the UK: what you need to know : https://www.gov.uk/guidance/status-of-eu-nationals-in-the-uk-what-you-need-to-know
- Home Secretary's open letter to EU citizens in the UK : https://www.gov.uk/government/news/home-secretarys-open-letter-to-eu-citizens-in-the-uk
- UK leaving the EU: what you need to know : https://www.gov.uk/government/collections/uk-leaving-the-eu-what-you-need-to-know
>>> Home Office and Immigration Enforcement Guidance - Managing detainees' money over £1000 (21 December 2017) : https://www.gov.uk/government/publications/managing-detainees-cash-exceeding-1000
Detention services order 5/2011 about managing detainees' money over £1000.
Особо важное выделено красным цветом
>>> Self-employed EU citizens who fall out of work retain worker status : http://curia.europa.eu/juris/document/document.jsf;jsessionid=9ea7d0f130d5b859d65a141e42a087e0d094d2cbcfc6.e34KaxiLc3eQc40LaxqMbN4PaNqLe0?text=&docid=198063&pageIndex=0&doclang=en&mode=req&dir=&occ=first&part=1&cid=345993
When a self-employed EU citizen falls on hard times in another member state and stops working, do they retain their status as a worker?
Since 2010, English courts have said they do not. In a case with wide implications for residence and social security rights, the Court of Justice of the European Union in C-442/16 Florea Gusa v Minster for Social Protection (Ireland) has deemed that position to be wrong.
Following Gusa, self-employed EU citizens who become unemployed retain their worker status, and therefore right to reside, in the same way as people in direct employment who lose their jobs.
>>> Supreme Court boost for people stripped of their British citizenship : http://www.bailii.org/uk/cases/UKSC/2017/82.html
A Supreme Court decision handed down recently is good news for people who have had their British citizenship taken away because it was obtained under false pretenses. The Home Office has accepted that in most cases, deprivation rather than nullity is the correct process. Deprivation gives people stripped of citizenship a full right of appeal and has less of a knock-on effect on their families if carried through.
That means that the third parties (spouses and children) are not affected by the deprivation decision whereas they would be in the case of nullity. The worst affected are usually children.
>>> New code of practice on freezing immigrants’ bank accounts : https://www.gov.uk/government/publications/immigration-act-2014-code-of-practice-freezing-orders-bank-accounts-measures
The Home Office published a guidance for caseworkers on when to apply for a court order freezing the bank account of someone alleged to be in the UK unlawfully.
A freezing order under section 40C(2) of the Immigration Act 2014 “prohibits each person and body by or for whom the account is operated from making withdrawals or payments from the account”. The measure was introduced by Schedule 7 of the Immigration Act 2016, as part of the hostile environment package of restrictions aimed at making life intolerable for people without immigration status.
The banks are expected to carry out the first round of immigration checks on some 70 million accounts in January 2018.
>>> Watch out for the approved IELTS tests centres !
The 6th April 2015 was the date from which ALL test taken on or after that date, needed to be from a test centre approved by the Secretary of State as a Secure English Language Test Centre. See Appendix FM 1.21 Guidance at paragraph 2.2.2:
https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/605687/Appendix_FM_Section_1.21.pdf
The Guidance therein applies generally and not just to Appendix FM applications. The types of test which are approved are set out in Appendix O
https://www.gov.uk/guidance/immigration-rules/immigration-rules-appendix-o-approved-english-language-tests
>>> What is coming up in relation to the UK and EEA law immigration in 2018 in the UK ?
Please note that this is a general attempt to predict the possible events that may or may not happen (thanks to the FMO)
Immigration White Paper
The contents of the White Paper are entirely unknown at the time of writing but are expected to address future EU migration and perhaps migration policy more generally. The fact that a major MAC report on future immigration is not expected until September 2018 suggests the White Paper may not be comprehensive when it does eventually arrive (see below).
Second phase EU-UK talks
With sufficient progress having been made, the second phase of EU-UK talks on future relationship will begin in early 2018, including on a transitional phase that is likely to preserve most or all elements of the single market and free movement of people.
European Union (Withdrawal) Bill
Formerly known as the “Great Repeal Bill” but also referred to in some quarters as the “Great Download and Save Bill” this is the main legislative measure bringing about Brexit. In short it:
Repeals the European Communities Act 1972
Directly incorporates into UK law some EU legislation
Imparts extensive powers to the Government to make secondary legislation relevant to Brexit
It is unknown when the Bill will become law but it is likely in early 2018.
Immigration Bill
This is anticipated to be a very short Bill subjecting EEA nationals to UK immigration law and formally repealing the Immigration (Economic Area) Regulations 2016. There may be some potential to propose amendments and it can act as a focus for discussion. Despite (or because of) immigration being an enormous and controversial subject, the Government already commands extensive powers to regulate immigration policy and law without primary legislation.
Migration Advisory Committee report on economic migration
The Migration Advisory Committee (MAC) is an official advisory body appointed by the Government to advise on immigration issues. MAC was commissioned in July 2017 to consider the position of EEA nationals in the UK labour market. The consultation formally closed in October 2017 and the final report is due September 2018.
Law Commission review of Immigration Rules
This exercise is confined to re-writing the law of immigration rather than the policy. However, the Law Commission is a genuinely independent (if conservative) body, consults widely and is already seeking assistance with its task. Simplification of immigration law is extremely desirable in order to improve accessibility.
Target for completion of UK withdrawal talks
The EU has set a target of Autumn 2018 for conclusion of withdrawal talks. This would in theory give sufficient time for all Member States to approve the deal, as is required by Article 50 TFEU (which governs withdrawal).
>>> Home Office and Immigration Enforcement Guidance: Managing detainees' money over £1000 : https://www.gov.uk/government/publications/managing-detainees-cash-exceeding-1000
The revised DSO 05/2011 ‘Management of detainees’ cash exceeding the value of £1000, the Proceeds of Crime Act 2002 (POCA) and the referral process’. Now available via the above link.
The new iteration of this guidance contains updates to the referral process and to the on-call structure of the Intelligence and Financial Investigation teams.
>>> Calculating a Settlement date – from the date of entry clearance was issued from the date the applicant entered the UK ?
The period between the issue of entry clearance and entering the UK : https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=0ahUKEwjL25aw7cDYAhUJIsAKHSWTDZMQFggpMAA&url=https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/606963/Calculating-continuous-leave-v15.0.pdf&usg=AOvVaw3LwXVBLLgw8gcaI-8YnTFB
The period between entry clearance being issued and the applicant entering the UK may be counted toward the qualifying period. Any absences between the date of issue and entry to the UK are considered an allowable absence. This period will count towards the 180 days allowable absence in the relevant 12 month period. The applicant does not need to provide evidence to demonstrate the reason for delayed entry.
If the delay is more than 180 days, the applicant can only include time after the applicant entered the UK in the continuous period calculation.
>>> Correspondence from HM Courts and Tribunals Service re First-tier Immigration Bail: Immigration Act 2016 (4 January 2018) :
http://legalcentre.org//files/IA2016-Stakeholder-letter-final.pdf
“First-tier Tribunal Immigration Bail: Immigration Act 2016
Schedule 10 to the Immigration Act 2016 comes into force on Monday 15 January 2018. It will make changes to the way in which immigration bail is managed by both the Secretary of State for the Home Department (SSHD) and the First-tier Tribunal (Immigration and Asylum Chamber). This letter is to update you on the main changes relating to the First-tier Tribunal.
The current distinction between bail processes in Scotland and the rest of the UK will be removed; with procedures and terminology in use in England, Wales and Northern Ireland applying in Scotland. The terms ‘Bail Bonds’, ‘Recognizance’ and ‘Caution’ will all become known as ‘Financial Conditions’. Financial Conditions will only be payable when bail conditions are not complied with and a Judge has decided an amount is due following a ‘Payment Liability Hearing’ (rather than a Forfeiture Hearing), so it will no longer be possible to take a deposit of bail money in Scotland as a condition of granting bail. Anyone with funds currently lodged with the Tribunal will be entitled to receive a full refund on agreeing to an equivalent Financial Condition and will be contacted by the Glasgow hearing centre.
Where the Tribunal orders that a Financial Condition be paid because of the breach of bail conditions, this can be done in person at a bank or by use of BACS – there will not be the ability to attend a court to make the payment as currently. In the event of non-payment, in England and Wales enforcement of Financial Conditions will move from magistrates’ courts to the county court. In Scotland it will be enforced by the sheriff court, and in Northern Ireland by a county court.
Where a person has been in immigration detention for a period of more than four months a new duty is to be placed on the SSHD to refer the matter to the Tribunal for a decision on whether bail should be granted. This will not apply where the detainee gives written notice that they do not wish their case to be referred. Where a reference is made, it is to be treated as if it were an application for bail.
Once it has granted bail, it will be possible for the Tribunal to direct that the SSHD may exercise power to amend or remove conditions of bail, or to impose new conditions. This means in effect that the Tribunal will be able to ‘transfer’ the management of bail to the Home Office. This will be highlighted on a revised version of the B1 Bail Application Form (see below) and the Tribunal will make any intention to do so clear at the bail hearing, so that the parties may make representations if they wish. This will be particularly important in the first few days of commencement when the current version of the B1 Application Forms may still be before the Tribunal.
Amendments reflecting these changes will be made to the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014, the Judicial Bail Guidance and to bail forms and notices which will be used across the UK.
Revised versions of the B1 Bail Application Form will be available for download from Formfinder (https://hmctsformfinder.justice.gov.uk/) on 12 January 2018. There will also be a new B2 Bail Variation application form for use where a person who is on Tribunal bail would like to change the conditions. If the Home Office wish to apply to the Tribunal to vary the conditions of bail they will use a B3 Application form.
Where an email address has been provided by yourselves on either the B1 or B2 forms bail decisions, where possible and when appropriate, will be served electronically rather than in hard copy.
HMCTS Immigration and Asylum Jurisdictional Support Team”