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The UK Government has published a White Paper describing what it wants from the future relationship between the UK and EU. The 100-page document includes some references to the future of immigration from the EU, but only in certain, limited areas.
Overall, the government does not have a policy on what will replace free movement of people. That is to be the job of a separate White Paper and an Immigration Bill, which “will bring EU migration under UK law, enabling the UK to set out its future immigration system in domestic legislation… further details of the UK’s future immigration system will be set out in due course”.
In the meantime, set out in full below are the various aspects of the White Paper that do touch on immigration and asylum. Perhaps more significant than any of those passages is the promise that “the UK is committed to membership of the European Convention on Human Rights” and “will remain a party to the ECHR after it has left the EU”.
And so:
1.4 Framework for mobility
72. EU citizens are integral to communities across the UK, with 3.5 million EU citizens living in the UK. Approximately 800,000 UK nationals play an equally important role in communities across the EU. The UK and the EU have already reached an agreement on citizens’ rights which provides EU citizens living in the UK and UK nationals living in the EU before the end of the implementation period with certainty about their rights going forward. Individuals will continue to be able to move, live and work on the same basis as now up until the end of December 2020.
1.4.1 Ending free movement of people
73. In future it will be for the UK Government and Parliament to determine the domestic immigration rules that will apply. Free movement of people will end as the UK leaves the EU. The Immigration Bill will bring EU migration under UK law, enabling the UK to set out its future immigration system in domestic legislation.
74. The UK will design a system that works for all parts of the UK. The Migration Advisory Committee (MAC) report, due in September 2018, will provide important evidence on patterns of EU migration and the role of migration in the wider economy to inform this. Further details of the UK’s future immigration system will be set out in due course.
75. The UK will continue to be an open and tolerant nation, and will want to continue to attract the brightest and best, from the EU and elsewhere. The UK’s future immigration arrangements will set out how those from the EU and elsewhere can apply to come and work in the UK. This will be crucial to supporting its public services, as well as enhancing the UK’s attractiveness for research, development and innovation.
1.4.2 Future mobility arrangements
76. Any future mobility arrangements will be consistent with the ending of free movement, respecting the UK’s control of its borders and the Government’s objective to control and reduce net migration. Trade agreements which cover trade in services include provisions on the mobility of people for the provision of services (known as ‘Mode 4’ commitments). Given the depth of the relationship and close ties between the peoples of the UK and the EU, the UK will make a sovereign choice in a defined number of areas to seek reciprocal mobility arrangements with the EU, building on current WTO GATS commitments. The UK has already proposed that this should be achieved in an appropriate framework for mobility, in line with arrangements that the UK might want to offer to other close trading partners in the future, where they support new and deep trade deals. The UK’s future economic partnership should therefore provide reciprocal arrangements, consistent with the ending of free movement, that:
a. support businesses to provide services and to move their talented people;
b. allow citizens to travel freely, without a visa, for tourism and temporary business ac-tivity;
c. facilitate mobility for students and young people, enabling them to continue to benefit from world leading universities and the cultural experiences the UK and the EU have to offer;
d. are as streamlined as possible to ensure smooth passage for legitimate travel while strengthening the security of the UK’s borders; and
e. provide for other defined mobility provisions, including arrangements to ensure that UK citizens living in the EU, in future, continue to benefit from their pension entitle-ments and associated healthcare.
77. These proposals are without prejudice to the Common Travel Area (CTA) arrangements between the UK and Ireland, and the Crown Dependencies. The CTA means that Irish citizens will continue to enjoy a special status in the UK, provided for by domestic legislation, distinct from the status of other EU nationals.
78. The principle of non-discrimination between existing Member States should apply to all of the provisions agreed as part of the framework for mobility.
Business and services
79. UK firms and global investors rely on the ability to move and attract talent to support global operations, and to send people to provide services across Europe. Indeed, mobility is a key element of economic, cultural and scientific cooperation, ensuring professional service providers can reach clients, advanced manufacturers can deploy key personnel to the right place, and scientists can collaborate on world-leading projects.
80. The UK would seek reciprocal arrangements that would allow UK nationals to visit the EU without a visa for short-term business reasons and equivalent arrangements for EU citizens coming to the UK. This would permit only paid work in limited and clearly defined circumstances, in line with the current business visa policy.
81. As is the case with non-EU countries with whom the UK has a trading agreement, the UK also wants to agree reciprocal provisions on intra-corporate transfers that allow UK and EU-based companies to train staff, move them between offices and plants and to deploy expertise where it is needed, based on existing arrangements with non-EU countries. The UK will also discuss how to facilitate temporary mobility of scientists and researchers, self-employed professionals, employees providing services, as well as investors.
Tourism
82. In the year ending September 2017, UK residents made approximately 50 million non-business related visits to the EU spending £24 billion, and EU residents made over 20 million non-business related visits to the UK spending £7.8 billion.
83. The UK therefore proposes reciprocal visa-free travel arrangements to enable UK and EU citizens to continue to travel freely for tourism in the future, maintaining the close links between the people of the UK and the EU. 84. The Government wants UK and EU nationals to continue to be able to use the European Health Insurance Card (EHIC) to receive healthcare should they need it while on holiday.
Students and young people
85. The UK and the EU should continue to give young people and students the chance to benefit from each other’s world leading universities, including cultural exchanges such as Erasmus+.
86. The UK proposes a UK-EU youth mobility scheme to ensure that young people can continue to enjoy the social, cultural and educational benefits of living in each other’s countries. The UK already operates a number of youth mobility schemes with other global partners, for example with Australia and Canada, on which this could be modelled.
Streamlined border arrangements and administrative procedures
87. The UK already has existing arrangements with low-risk, non-EU countries that enable smooth access at the border, such as the Registered Traveller Scheme in place with a number of countries like the US and Japan. The UK wants to agree reciprocal arrangements with the EU that ensure smooth passage for UK nationals when they travel to the EU, for example on business or on holiday. The UK will strengthen the security of its borders, which should include exploring whether to apply the electronic travel authorities proposed for third country nationals to each other’s nationals, and ensuring travel documents meet minimum security standards. But at the border, as now, tourists and business visitors should not routinely have to face questions about the purpose of their visit. The UK also wants to minimise administrative burdens for those seeking permission to travel, enter or reside in each other’s territories, including short, simple and user-friendly application processes.
88. Streamlined arrangements are particularly important at the Gibraltar-Spain border, which is crossed every day by thousands of people from other Member States.
Other mobility provisions
89. While ending free movement, the UK will also make a sovereign choice to discuss other specific mobility areas. The UK will seek reciprocal arrangements on the future rules around some defined elements of social security coordination. This will be important for UK nationals who want to live, work or retire in the EU in the future, as part of our new arrangements. This could cover provisions for the uprating of state pensions, including export rules and accompanying aggregation principles for people who have contributed into multiple countries’ systems. It would also ensure workers only pay social security contributions in one state at a time. There should be reciprocal healthcare cover for state pensioners retiring to the EU or the UK, continued participation in the EHIC scheme and cooperation on planned medical treatment. This would be supported by any necessary administrative cooperation and data-sharing requirements.
90. The UK will also seek to secure onward movement opportunities for UK nationals in the EU who are covered by the citizens’ rights agreement. Some of these UK nationals have chosen to make their lives in the EU, and this should be respected in the opportunities available to them if they decide to change their Member State of residence.
91. The framework for mobility could also cover the recognition of professional qualifications held by UK and EU nationals as covered in section 1.3 of this chapter.
…
2.5.1 Asylum and illegal migration
98. Properly managed migration brings benefits to local communities and economies. But high levels of illegal migration present a global challenge, enabling organised crime, people trafficking and modern slavery to prosper.
99. The UK has a significant presence overseas, conducting capacity and capability building in source and transit countries and deconstructing criminal business models, through participation in development programmes and through seconded national experts. It is vital that the UK and the EU establish a new, strategic relationship to address the global challenges of asylum and illegal migration.
100. The UK therefore proposes a comprehensive, ‘whole of route’ approach that includes interventions at every stage of the migrant journey and ensure no new incentives are created to make dangerous journeys to Europe. It should cover:
a. ongoing operational cooperation, for example working with Frontex to strengthen the EU’s external border, and Europol to combat organised immigration crime;
b. a new legal framework to return illegal migrants and asylum-seekers to a country they have travelled through, or have a connection with, in order to have their protection claim considered, where necessary. People should be prevented from making claims in more than one country, and on multiple occasions. A clear legal structure, facilitated by access to Eurodac (the biometric and fingerprint database used for evidencing secondary asylum claims) or an equivalent system will help achieve this;
c. new arrangements that enable unaccompanied asylum-seeking children in the EU to join close family members in the UK, where it is in their best interests and vice versa;
d. a continued strategic partnership to address the drivers of illegal migration by invest-ing and building cooperation in source and transit countries;
e. continued UK participation in international dialogues with European and African partners, frameworks, and processes, such as the Rabat and Khartoum Processes, to tackle illegal migration upstream; and
f. the option to align and work together on potential future funding instruments through the cooperative accord on overseas development assistance and international action outlined in chapter 3.4.
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[align=justify]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923[/align]
[align=justify] [/align] >>> Court of Justice finds Surinder Singh applies to extended family members: http://www.bailii.org/eu/cases/EUECJ/2018/C8917.html
The unmarried partner of a British citizen who returns to the UK having resided in another EU country does have rights under EU law, the Court of Justice of the European Union has today held in the case of C 89/17 Banger v UK. The court also finds that if such a person is refused, he or she is entitled to a proper investigation of the factual basis of the case.
In other words, the Court of Justice extends the principle of the Surinder Singh judgment to extended family members.
The judgment makes clear that there is no automatic right to a residence card for extended family members. They are entitled to facilitation of their entry and residence and to extensive examination of their personal circumstances and any refusal must be justified by reasons, all in accordance with the rights of extended family members in Article 3 of Directive 2004/38.
This decision means that UK has been wrongly refusing applications of this type for years and will have to formally amend the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052) in order to comply with EU law.
The judgment also implies that the UK’s decision to abolish full rights of appeal for extended family members in 2016 was incompatible with EU law. Instead of merits appeals, extended family members now have to rely on an application for judicial review as their only available remedy.
The court held that when an extended family member is refused a residence document, that person:
- must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with.
It is hard to see that an application for judicial review really provides this type of remedy. The grounds of challenge are based on reviewing whether the decision under challenge was lawful, not whether it was “correct” in the opinion of the judge. Judicial review does not permit the judge hearing the case to make up his or her own mind about what the outcome should be, only whether the decision-maker made any legal errors in reaching the decision.
There is a line of authority suggesting that judicial review is an adequate remedy in EU law, though, so the question of whether a formal right of appeal needs to be restored is not entirely straightforward.
What is straightforward is that the original tribunal decision in Sala which triggered the abolition of rights of appeal for extended family members has been held to be wrong in the Court of Appeal and the Supreme Court and now implied to be wrong by the Court of Justice. There was no need to abolish rights of appeal and on a policy and human level, the Home Office should just restore them. It is very hard indeed to see the justification for removing a relatively cheap and effective remedy and replacing it with a complex, expensive and flawed one.
It is standard when the Home Office wins a case for the regulations to be amended immediately, but when the Home Office loses a case for it to take many months for implementation to occur. The last case the UK lost, Lounes, which was on the issue of the rights of dual EU-UK nationals, was in December 2017 but will only be implemented in late July 2018.
Extended family members wishing to benefit from Surinder Singh will probably need to wait many months before the regulations are formally amended. But applications should not be refused in the meantime and if there is a pressing need an application could be made now.
Looking ahead, Surinder Singh families are not covered by the draft Brexit Withdrawal Agreement, but the UK government has said that they will be able to apply for the settled status scheme anyway.
17 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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20 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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>>> Home Office unlawfully nullifies British citizenship in hundreds of cases
New figures from the Home Office show that hundreds of British citizens have unlawfully had their citizenship nullified since 2013. A Freedom of Information request revealed that there were 262 decisions to nullify British citizenship between 2007 and 2017, peaking at 176 cases in 2013. In December 2017, the Home Office conceded in a Supreme Court case that these nullification decisions were almost all unlawful.
A team of 11 civil servants in the Status Review Unit is now reviewing the historic decisions. A different legal process called deprivation of citizenship is likely to be used in at least some of the reviewed cases.
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>>> Updates to the Tier 2 and 5 guidance for sponsors
The guidance that Tier 2 and 5 sponsors must follow was updated last week. The new version applies to sponsor licence applications made, and certificates of sponsorship assigned, on or after 18 July 2018.
Some of the key changes are:
Fees and refunds
• Application fees for sponsor licence applications and certificates of sponsorship will not be refunded if a sponsor withdraws an application once consideration has begun (paragraph 1.15).
• In the previous update to the guidance in January 2018, sponsors were placed under a new reporting duty. They now have to report within ten working days if the size of the sponsor’s business changes from a small to a medium/large company or vice ver-sa. The change was necessitated by the Immigration Skills Charge (ISC) applicable to a sponsored worker assigned a certificate of sponsorship on or after 6 April 2017 in the Tier 2 General or Intra-Company Transfer categories. This updated guidance contains a further reminder to tell the Home Office if the size of the business chang-es, so that the respective ISC can be correctly levied (1.16).
• Again on the Immigration Skills Charge, refunds will be issued for “all whole unused 6 month periods of leave” except where the worker leaves their post during the first year of employment. In that case, no refund is made in respect of that first year (1.23).
• The guidance also confirms that that the Immigration Skills Charge does not apply to Tier 2 migrants seeking to extend their leave to remain with the same employer in the same role, who made their initial application to switch from Tier 4 after 6 April 2017 (1.18).
Doctors and nurses
• As of 6 July 2018, medical practitioner and nursing occupations (SOC codes 2211 and 2231) have been excluded from the Tier 2 (General) annual quota. To align with this relaxation of the rules, doctors and nurses have been added to the list of people to whom an unrestricted certificate of sponsorship may be assigned (29.4)
• The Occupational English Test has been added to the list of acceptable tests for nurs-es proceeding towards registration with the Nursing and Midwifery Council (15.18).
Resident Labour Market Tests
• Referencing Appendix D paragraph 2K, employers must now provide information about settled worker applicants who do not take up the job or whose applications are rejected. For example, the employer must provide interview notes or other documentation which show the reasons why they have not been employed.
• A paragraph has been added and surrounding paragraphs renumbered to reflect that the fact that established researchers at a Higher Education Institution or Research Council are exempt from the RLMT process (28.11).
Also of note are detailed guidance on rates of pay for new entrants (26.4 and 26.8), further clarification on making affidavits relevant to the Intra-Company Transfer category (8.2) and detailed notes on how to correctly certify a document (8.3).
The High Court has ruled that failure to provide a medical assessment within 24 hours of arrival at a detention centre can make continued detention unlawful. In R (KG) v Secretary of State for the Home Department [2018] EWHC 1767 (Admin) the court found that the Home Office had failed to comply with Rule 34 of the Detention Centre Rules 2001, which requires assessment by a detention centre GP within 24 hours. As a result, the Home Office did not realise that the claimant was a victim of torture and unlawfully detained him for a month.
The claimant, KG, was detained on 6 January 2016 without a medical assessment and claimed asylum the following day. On 14 January 2016 he was seen by a nurse because he had moved to a different detention centre, but no-one asked him about whether he had ever been tortured. KG told the Home Office that he had been tortured in an asylum interview on 15 January 2016 and asked to see a doctor on 18 January 2016. The appointment finally took place on 4 February 2016, after which the Home Office released KG because the GP said that he was a victim of torture.
This case is an excellent example of the High Court supervising the Secretary of State’s compliance with the Detention Centre Rules. Most of the day-to-day functioning of detention centres is shielded from public view so detainees rely on the courts to enforce the rules strictly and punish the Home Office for its mistakes. Hopefully the award of compensation for KG in this case will ensure that Rule 34 medical assessments are provided to all detainees in future.
The government’s view is that Brexit will not affect Irish citizens at all. On 21 June 2018 the government published details of its plan to offer settled status to EU citizens who currently live in the United Kingdom. It confirmed the government’s position that Irish citizens have a general right to live in the United Kingdom which is entirely separate to their rights as EU citizens.
But the document gives no explanation of the legal basis for this right of residence in the UK after Brexit. Although it is clear that the government has no intention at present of enforcing immigration controls against Irish citizens, whether they will have a general legal exemption from UK immigration laws remains an important question.
Firstly, if there is no statutory exemption from immigration control then at least some Irish nationals would be vulnerable to a change in government policy. Secondly, if there are no amendments to the UK Borders Act 2007, the automatic deportation regime imposed by that act would apply to Irish citizens. That would force the government to deport Irish nationals who have committed a serious crime even if the Home Secretary did not wish to deport them.
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Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558 highlights the difference between extended family members’ rights and family members’ rights under EU law, as well as the extent of the tribunal’s statutory remit.
The “updates” on methods of service of a proposal to deprive a person of their citizenship in fact enable service by email or fax to an address/number previously provided, or to a legal representative (whether it is actually received or not). It also enables “service to file” (meaning “not served”, in truth) where service cannot be effected.
These changes are made in the British Nationality (General) (Amendment) Regulations 2018 (SI 2018 No. 851) and come into force on 9 August.
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This toolkit contains leaflets, posters and a briefing pack to help employers across the UK communicate clear and consistent messages about the EU Settlement Scheme.
EU citizens and their families will be able to apply for settled status through the EU Settlement Scheme.
27 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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27 July 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
01 August 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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Modernised guidance on how UK Visas and Immigration makes a decision about reconsidering an application.
UK Visas and Immigration modernised guidance for how it decides what to do when an applicant believes a Home Office temporary or permanent migration decision is incorrect and asks for it to be reconsidered.
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In a highly significant development, the President of the First-tier Tribunal has issued a new guidance note on how migrants who win an appeal against the Home Office can seek legal costs from the department. The guidance envisages costs awards for “unreasonable conduct” where the Home Office contests an appeal “which is, objectively assessed, irresistible or obviously meritorious” and demands that officials carry out an initial assessment of whether an appeal should be defended within six weeks of it being lodged.
Who should costs orders be made against?
The guidance has two parts, reflecting the two different hearings held in the test cases. The first part considers whether an application for costs could be made against individual representatives of the Home Office (Home Office Presenting Officers), or only against the Home Office as a department. The decision of the Presidential panel was that it was inappropriate to make an Order against an individual HOPO. Although this issue was naturally of great importance to HOPOs, it was of less significance for Appellants. If a HOPO has acted unreasonably in the course of an appeal, the important thing for Appellants is that there is some sanction to discourage such conduct in future and that they are compensated for any additional legal expenses they incur as a result. Whether that sanction and compensation technically takes the form of an application for costs against the individual HOPO or against the Home Office more generally may make little practical difference.
When is it unreasonable for the Home Office to defend a wrong decision?
The second part of the guidance considers the wider question of the factors a Judge should consider when deciding if conduct has been unreasonable enough to justify an award of costs. It briefly addresses issues such as the period the costs award might cover, the latitude to be afforded to unrepresented litigants, and the need for Judges to give reasons for their decisions.
The most significant part of the guidance sets out when it is unreasonable for the Home Office to defend an appeal at all. The Home Office’s published policy is to refuse to reconsider a decision, no matter how flawed, if there is a right of appeal to the Tribunal. During the appeal proceedings, Home Office practice has been not to consider the merits of their refusal decision until, at the very earliest, 24 to 48 hours before the full hearing, when the is file assigned to a Home Office Presenting Officer to prepare for the hearing. In some cases, it is only at this point that a conscientious HOPO would recognise that the decision was simply wrong and could not be defended – although even in many such cases, individual HOPOs were unable to get permission to withdraw the decision prior to the hearing and had to appear in court to defend what they knew was an indefensible decision. In cases where the Home Office did not send a representative to court, or where they instructed outside Counsel, there was simply no opportunity for the Home Office to withdraw even those most egregiously incorrect decisions.
The decision of the Presidential Panel on this issue was that this behaviour was unlawful. The new Presidential Guidance makes it clear that it is unreasonable and may be grounds for an Appellant to be awarded their costs. The guidance sets out the following general principles:
1. It will “as a strong general rule, be unreasonable to defend – or continue to defend – an appeal which is, objectively assessed, irresistible or obviously meritorious.”
2. The Home Office should assess every refusal decision within six weeks of being notified that the appeal has been lodged. If the appeal is obviously meritorious, it is unreasonable for the Home Office not to make appropriate concessions or even withdraw the appeal at that point.
3. The Home Office should assess the decision again whenever there is any significant development in the law or the evidence. This means that Appellants whose applications may have been refused because of inadequate or missing evidence have a right to expect that the Home Office will review the refusal decision and withdraw it if appropriate after new evidence has been served. This could be shortly before the hearing, but it could be many months earlier.
4. These assessments must be carried out by a “reasonably competent civil servant”, presumed to be “properly qualified and sufficiently trained so as to adequately discharge the important function of representing a high-profile Government Minister in the self-evidently important sphere of immigration and asylum legal proceedings in a society governed by the rule of law.”
This may give some encouragement to the many Home Office employees who work hard to do the right thing, but sometimes without the training or support they need. It also means that Appellants do have the right to expect that refusal decisions will be reviewed carefully, fairly, and in accordance with the law and the evidence, which has not always been the case in the past.
This guidance is essential reading for anyone who feels that their application to the Home Office has been unfairly refused. As long as they have a right of appeal, they can now point to this guidance and urge the Home Office to reconsider the decisions that are clearly wrong, even long before the hearing.
If the Home Office fails to respond, maintains the refusal decision for inadequate reasons, or only withdraws the decision at a very late stage, the Appellant should consider applying to the Tribunal for an order that the Home Office pay their costs in the appeal.
The full case on which the guidance is based is unreported, but Appellants can nonetheless apply to the Tribunal to be allowed to rely on it. It contains helpful discussions of the reasoning behind the principles set out above, as well as applying these principles to the facts of the four individual cases.
How is a costs application made?
Applications for costs must be made to the Tribunal that heard the appeal and served on the Home Office. They must be made within 28 days of when an appeal is concluded. This could be within 28 days of when the Tribunal decides that the appeal should be treated as withdrawn (because the Home Office has withdrawn its refusal decision), or 28 days after the decision allowing the appeal is sent to the Appellant. There is no specific form or fee for this application. Because the law on when Appellants should be awarded their costs is new and still developing, it may be advisable for Appellants to seek legal advice and assistance before making a costs application.
The Home Office has been found in serious breach of its duty to the court after submitting misleading evidence about how it handled the rescue of refugee children from the demolished Calais “jungle” camp. The judgment in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 was handed down recently.
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Those with a derivative right of residence on Zambrano grounds must not [be] refused a residence permit on the sole ground that they have a criminal record, but deportation can be justified where the personal conduct of the third-country national constitutes a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society considering all relevant circumstances, in the light of the principle of proportionality.
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R (Singh) v The Secretary of State for the Home Department [2018] EWCA Civ 1669 is about how the transitional provisions in the Immigration Rules apply to online applications which must be supported with further evidence sent later by post. The appellant argued that an application made online without supporting evidence was not valid and therefore did not count as an application for the purpose of deciding whether the “old” or “new” Rules applied. The Court of Appeal rejected this argument and ruled that the online application did count and therefore the previous Rules would apply. This meant the appellant could not benefit from a change to the Rules which required the Home Office to chase applicants for missing evidence and give them an additional 10 days to submit it.
[align=justify]09 August 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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>>> Extending a visitor visa while in the UK ?
In certain cases it may be possible to extend one’s visitor visa while in the UK due to certain compelling circumstances. Say, if the couple was visiting the UK and one of the spouses was diagnosed with a serious medical condition. It may then be possible to extend a visitor visa in-country for the purpose of the private medical treatment via the firm FLR(IR).
In certain other cases it may also be possible to extend one's visitor visa. I have done it in the past for number of clients.
10 August 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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>>> Extending a visitor visa while in the UK ?
In certain cases it may be possible to extend one’s visitor visa while in the UK due to certain compelling circumstances. Say, if the couple was visiting the UK and one of the spouses was diagnosed with a serious medical condition. It may then be possible to extend a visitor visa in-country for the purpose of the private medical treatment via the form FLR(IR).
In certain other cases it may also be possible to extend one's visitor visa. I have done it in the past for number of clients.
>>> Home Office concedes that Irish citizens are settled in the UK
The Home Office has confirmed that Irish citizens living in the UK are considered “settled” for the purposes of immigration law. The department said that officials in individual cases who had denied that Irish citizens were settled as soon as they took up residence in the UK were wrong to do so, and that it had send out guidance to ensure that decision-makers are aware of the correct position.
Irish nationals are treated differently in UK immigration law to any other nationality, as the Common Travel Area joins the UK and Republic of Ireland in a free movement zone independently of the European Union. This special status includes an Irish citizen being considered “settled” — having legal permission to live in the UK permanently unless deported for a criminal offence — as soon as they take up ordinary residence here.
>>> How is the government using its increased powers to strip British people of their citizenship?
The recent judgment in Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 saw the Court of Appeal uphold the Home Secretary’s decision to use her power to strip members of a notorious Rochdale grooming gang of their British citizenship. The use of a power once reserved for national security cases to impose additional punishment upon serious criminals is new.
The legal constraints on this power have been significantly loosened over the years, and the Rochdale case shows that the Home Office is prepared to exercise it in circumstances other than those touching on national security, as has traditionally been the case. This would, if the start of a trend, be cause for concern — or at least some public debate.
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The requirement for the couple to have 6 items of (joint) correspondence addressed to them was proved unlawful by the UTT. That said, the application forms still list this requirement and it is best to comply with the requirements rather than taking a risk of a possible refusal. Put it simply – the UK BA caseworkers are simple clerks and they are not suppose to know (and they often do not) the in-depth case-law.
>>> When does an EEA national can apply for Permanent Residence without showing the evidence of economic activity ?
This may be possible when, say, an EEA national wife has been a worker for a period of 5 years. Then the EEA national husband can simply joint the EEA wife’s PR application as a qualified family member.
>>> Permanent Residence BRP card issued for the period under 10 years (usually up to the 31st December 2024) ? Here is why:
From the UK BA, the response:
“Thank you for your enquiry regarding the expiry date on your Biometric Residence Permit (BRP).
To explain, we are required by the EU to restrict BRPs which do not incorporate the next generation of encryption technology to a validity date of 31 December 2024.
As the UK intends to introduce the new technology in due course, the date restriction affects only cards issued to adults with settled status, as no other BRPs that we issue would still be valid on that date.
Any card restricted to 31 December 2024 which is still rightfully held on 01 July 2024 will be replaced free of charge, with the remainder of the 10 year period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving ten year evidence of settled status will still do so but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel. The rightful holder still has settled status.
A date restricted card replaced as a result of a charged application made after the UK introduction of the new encryption technology will be valid to a date 10 years from issue of the initial card. (This typically applies to requests to replace a lost or stolen card, and requests to reflect a lawful change of name, gender or nationality.)
The exact process for providing replacement BRPs to applicants in this position has yet to be determined. Therefore we recommend that applicants study the guidance made available by the Government prior to the expiry of their BRP to establish the steps needed to undertake in replacing their permit.
We hope this clarifies the current situation and thank you for your kind attention to this matter.
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>>> UK Visit visa refused ? Possible ways forward explained
Re-apply
If it works, the simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence and a new fee. But is it likely to work or is it a waste of time and money?
If the application was refused because insufficient evidence was submitted, for example bank statements or similar, then this should be quite easy to correct.
It is far from unknown for a visa official simply to ignore or overlook evidence that was actually submitted, though. Where this happens it is unfair to have to pay another fee and a letter to the Entry Clearance Manager asking for reconsideration is worth considering.
There are some circumstances where it is clear that reconsideration or re-application is not likely to be available and a legal challenge will be needed instead. For example:
• If the previous refusal states that the applicant has been excluded from the UK for a certain period of time, for example for use of deception. If there was some sort of simple and obvious misunderstanding or mistake it may be possible to remedy this by a reconsideration request or new application but in most cases a legal challenge will be needed.
• Where the evidence relied on was rejected as being from an inadequate or unverifiable source. There is little point re-submitting the same documents a second time.
• Where the reason stated by the visa officer is that the applicant is not a genuine visitor or does not have an intention to return. There are usually no extra documents that can be submitted to prove one’s case once these subjective intention issues arise.
Some visa application posts are more reasonable and make better quality decisions than others. Quality of decisions in Islamabad is very poor, for example, whereas New York is far better. A reapplication or reconsideration request is well worth considering at the latter post because someone might actually engage with the issues rather than merely mindlessly re-refusing.
If reconsideration or re-application are not likely to work or have been tried and failed, it is time to consider legal action.
Right of appeal
As of July 2013 it is only possible to appeal to the immigration tribunal against refusal of a visit visa where the grounds of appeal are on human rights grounds. Whether or not the visit engages human rights considerations therefore determines whether there is a right of appeal.
The problem is that a person may attempt to appeal on human rights grounds but, many months later and after having paid appeal fees and legal costs, a judge may decide the visit does not really raise human rights grounds and therefore there was no right of appeal in the first place. A lot of time, energy and money will have been wasted bringing the appeal, and the chance lost to challenge the refusal by other means such as an application for judicial review.
To say this is unsatisfactory is an understatement.
Case of Mostafa
In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) the Upper Tribunal considered this question of when human rights might be engaged in a visit visa case. The tribunal held that where a couple are married human rights are certainly engaged but expressed some scepticism whether human rights might be engaged in other, wider circumstances. The determination is considered further below. Only family life relationships were considered, by the tribunal, though, not private life, and the tribunal also omitted to consider whether a different standard for engagement of human rights was relevant for a temporary visit as opposed to a settlement application. After all, in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 the Court of Appeal in a unified judgment looked at Costello-Roberts v United Kingdom (1993) 19 EHRR 112 then held:
“It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art. 8(1), the threshold of engagement (the “minimum level”) is not a specially high one. Once the article is engaged, the focus moves, as Lord Bingham’s remaining questions indicate, to the process of justification under art. 8(2). It is this which, in all cases which engage article 8(1), will determine whether there has been a breach of the article.”
Lastly, the appellant in Mostafa was unrepresented, meaning that no legal argument was presented on these issues and no onward appeal was realistically feasible.
What sorts of visits might pass the test?
It might be thought that visits between close family members, particularly visits intended to maintain a relationship, would engage human rights protection at some level: without face to face visits, any relationship is surely doomed over time.
For example, a visit from one spouse to another, particularly if separated by the harsh family settlement rules, would on the face of it engage Article 8. A visit of a young child to the UK to see a parent or a parent to see a young child would also appear to engage human rights protection at some level. The same might be said of a visit of an elderly relative to see his or her children and family in the UK where settlement is not an option because of the Catch-22 nature of the new dependent relative rules.
Some other types of relationship may also reach the relevant threshold, yet it may be challenging to arrange the suitable documentary evidence.
>>> How does the UK BA assess the validity of a marriage ?
The ECO must be satisfied that the parties are validly married to each other. Most applications will normally be made in the country where the marriage took place.Enquiries about the marriage laws of other countries should be referred to family operations policy.
The recognition under the law of England or Wales, or Scotland, or Northern Ireland, of any marriage which took place outside the UK is governed by the following three questions:
• Is the type of marriage one recognised in the country in which it took place?
• Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
• Was there anything in the law of either party’s country of domicile that restricted his / her freedom to enter the marriage?
Domicile is a very important concept in English law. It is the place which a person regards as his permanent home and with which he has the closest ties. It contains a dual element of:
1. actual residence in a place; and
2. an intention of remaining there permanently
For more guidance on domicile see SET15 Domicile.
Where one of the parties to a marriage abroad was domiciled in England and Wales at the time of the marriage, and there was a lawful impediment in English law (that is, he / she was under the age of 16; the parties were not respectively male and female; he / she was already lawfully married or a civil partner; the parties were related within the prohibited degrees), the marriage could not be recognised in England and Wales. The same considerations apply in relation to domicile and law in Scotland, and, separately, in Northern Ireland.
If the answers to the above questions are respectively ‘yes’, ‘yes’ and ‘no’ then the marriage will be treated as a marriage for the purpose of the ‘spouse’ paragraphs of the Rules, whether or not it is polygamous (but see separate guidance on dealing with applications from polygamous partners SET14 Polygamous marriages.
Where ECOs have material doubts over the recognition of the marriage in the country in which it took place, and / or over its having been properly executed so as to satisfy the requirements of the law of the country in which it took place, the onus is on the applicant to show that those doubts are misplaced.
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The EU Settlement Scheme for registering Europeans who want to stay legally in the UK after Brexit will sign people up alphabetically, according to a news report today. “Multiple sources” have told the website Business Insider that
“under a confidential plan being discussed by senior officials, caseworkers would process European applicants in “bite-sized chunks” in alphabetical order based on the first letter of their surname for the final phase of the process”
The Home Office has been saying for some time that the Settlement Scheme will be opened on a “phased basis” between 28 August 2018 (when the first pilot begins) and 30 March 2019 (when the post-Brexit transition period begins, assuming there is a deal at all). It was never 100% clear on what basis the department proposed to stagger the applications. Alphabetically seems as good as any other, frankly, if that is what’s envisaged.
Extensive testing of the scheme makes eminent sense, given that around 3.5 million people will be eligible to apply. The first pilot will involve just 4,000 people from a dozen universities and hospitals in the north west of England. Changes to the Immigration Rules come into force for that purpose on 28 August.
At some point, though — the Home Office says no later than 30 March next year — the scheme will be “fully open” to all EU citizens in the UK. The nightmare scenario for officials is an almighty surge of applications right at the beginning of general operations which overwhelms caseworkers, destroys the advertised “within a few days” timeline for a decision, and damages what confidence exists in the process.
In PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC) the Upper Tribunal has refused to protect a Ukrainian draft evader despite acknowledging that there is evidence of that taking part in the conflict might involve committing acts of contrary to basic human conduct. The tribunal found that in reality most people were not punished for draft evasion, so there was no real risk of the appellant being punished for his refusal to take part in the fighting.
Surprisingly, the tribunal went on to rule, in apparent conflict with House of Lords and Court of Appeal authority, that even if the appellant were punished it would not be serious enough to amount to persecution. The judgment also considers that there would be no breach of Article 3 of the European Convention on Human Rights from prison conditions in the Ukraine because the appellant would not be imprisoned in the first place.
The official headnote:
“(i) A legal requirement for conscription and a mechanism for the prosecution or punishment of a person refusing to undertake military service is not sufficient to entitle that person to refugee protection if there is no real risk that the person will be subjected to prosecution or punishment.
(ii) A person will only be entitled to refugee protection if there is a real risk that the prosecution or punishment they face for refusing to perform military service in a conflict that may associate them with acts that are contrary to basic rules of human conduct reaches a minimum threshold of severity.
(iii)VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct.”
PK is a Ukrainian national who arrived in the UK in 2014, before the current conflict in Ukraine began. The Ukrainian army sent call-up papers to him at his parents’ address in October 2016 and again in February 2017, which led him to claim asylum in March 2017. The Secretary of State refused his claim and his appeal was dismissed by the First-tier Tribunal, which considered that it was bound to do so by applying the VB case cited in the headnote.
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UK BA Guidance on considering human rights claims in visit applications
The Home Office view is that refusal of visit visas will not generally raise human rights issues. It is only where the visit is between a spouse or other life partner or a parent and a minor child that the Home Office considers human rights might be engaged, and even then if visits can be conducted in another country then human rights are supposedly not engaged.
This is only the Home Office view and it is for the tribunal to decide in each case what does and does not amount to a human rights claim, but the guidance is nevertheless instructive as a sort of minimum standard.
In short, where private or family life issues are raised and need to be decided by the Home Office, there is a human rights claim and a right of appeal. Interestingly, Baihinga also suggests that a “bare” or “unsubstantiated” claim is, very arguably, still a claim and may still give rise to a right of appeal. The Home Office’s guidance does not currently reflect this understanding, claiming that a “mere assertion” is insufficient.
The Home Office’s guidance adopts an excessively narrow view of human rights that is not consistent with case law, particularly the cases of Mostafa and Baihinga, so you should not necessarily accept the department’s view. It is not for the Home Office to determine whether you have a right of appeal or not, so if you think you can potentially succeed you can lodge an appeal anyway irrespective of what the Home Office thinks and then try to persuade the tribunal that human rights are engaged and that you have a right of appeal.
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>>> UK BA “secret” additional pro-forma for the Tier 1(Entrepreneur) migrants who wants to use the UK BA Super Premium Service
While working one of the client’s cases – the Tier 1 (Entrepreneur) extension application via the UK BA Super Premium Service – I have come across the undocumented UK BA pro-forma, which the UK BA is using in order to decide whether this or that Tier 1 (Entrepreneur) migrant is eligible to use the UK BA Super Premium Service. The contents of the pro-forma are as follows:
“Tier 1 Entrepreneur Summary sheet
Representative:
Date:
Please respond to the questions below. This will be used to determine whether your application is suitable for consideration through the Super Premium Team
1) Current Immigration Status:
2) Have you previously been refused as a Tier 1 Entrepreneur? If so please provide grounds for refusal and date refused)
3) Are you self employed or company director?
4) Brief outline of business/prospective business
5) Method of funding (own funds, 3rd party funding) and amount already invested if extending visa?
6) Method of investment (director’s loan, share capital etc)?
7) Relevant business experience and qualifications?
8) Turnover (if any) and profit/loss (if any) for most recent submitted audited/unaudited accounts if extension application. If initial prospective turnover/profit for next 3 years
9) If extension application the number of employees relied upon?
10) Are you able to provide full payment submissions in the ‘coded format accessible from the HMRC gateway website, p60s, and contracts of employment, p11s and pay slips?
11) How is the accountant certified (e.g. ACCA, ICAEW…….)?
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>>> Submitting an application for leave to remain or Settlement in the UK vs travel plans – be warned !
Some applicants lodge extension or Settlement applications and then withdraw their passports to travel (leave the UK). This is very dangerous as in line with para 34J of the Rules, such actions are treated as application withdrawal :
“34J. Where a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been demined, be treated as withdrawn on the date that request is received by the Home Office”
>>> Can an (heavily) overstaying spouse of a UK citizen apply for ILR ?
Apparently, the answer is “may be”, yet certain conditions apply. For example, if a foreign wife of a UK citizen was issued with a UK spouse visa (under the old para 287 of the Part 8 of the Rules in force at that time) before the 9th July 2018, then it was not a requirement to have extant leave under the para 287.
So, subject to the paras A277, A280(c)(ii), 288, and including the para 287(a)(vi).
Where A280( c ) states that:
(ii) to applications made by persons in the UK who have been granted entry clearance or limited leave to enter or remain under Part 8 before 9 July 2012 and where this is a requirement of Part 8, this leave to enter or limited leave to remain is extant: …
The above possibility for an overstaying spouse of a UK citizen has been backed up by the Upper Tribunal case on point in which the Upper Tribunal said this at para [27]:
“27. We follow that decision and apply it to paragraph 287, which we find does not require applicants to have leave at the time they make their application. The absence of a requirement for current leave is not a unique feature of paragraph 287 and there is no basis for reading one in. It would have been a simple matter to include such a requirement if that were intended. “
And naturally, there had to be NO in-between applications for leave to remain under the (newer) Appendix FM Rules, on the basis of the para A280B
“An applicant aged 18 or over may not rely on paragraph A280 where, since their last grant of limited leave to enter or remain under Part 8, they have been granted or refused leave under Appendix FM, Appendix Armed Forces or paragraph 276BE to CE of these rules, or been granted limited leave to enter or remain in a category outside their original route to settlement.”.
The case of the Mansur (Immigration adviser’s failings, Article 8) [2018] UKUT 274 (IAC) is may be of interest to some. Mr Mansur was let down by his immigration advisers and by the Home Office. The advisers failed to tell him that a fresh application for leave to remain would be invalid because a separate appeal was pending (Immigration Act 1971, section 3C(4)) or to withdraw that pending appeal when instructed to do so. The Home Office incorrectly informed Mr Mansur that his fresh application was valid and being considered, when in reality it had been invalidated because of the pending appeal. As a result, he ended up without leave for several months and was turned down for indefinite leave to remain which he had applied for on the basis of ten years’ continuous lawful residence.
It is a rather basic knowledge for the adviser, not to mention a lawyer, to know, that an applicant may not lodge a fresh application while the appeal is pending. It turns out that Mr. Mansur was very, very lucky for his appeal to be allowed (won), as usually a poor immigration advice does not exonerate the applicant.
Kovacevic (British citizen – Art 21 TFEU) Croatia [2018] UKUT 273 (IAC) is about whether EU free movement law protects dual nationals (i.e. someone who is a citizen of the UK and another EU country) who have never exercised their EU free movement rights. The Upper Tribunal ruled that a dual national, who has always relied on their British nationality to reside in the UK, cannot invoke EU law in order to obtain residence rights for their partner.
The head-note:
“(1) A Union citizen who resides in a Member State of which he or she is a national is not a beneficiary under Article 3(1) of the Citizen’s Directive.
(2) A dual Croatian/British citizen who was residing in the United Kingdom when Croatia joined the EU and who has never exercised EU Treaty rights does not acquire a right of residence under Article 21 TFEU.”.
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>>> Do not let the UK BA get away with the unjustified refusals!
The UK BA refusal letters’ language may be very intimidating, so it is best to seek professional advice from the firm such as ours, to establish the merits of challenging your appeal. Also remember, that the recently introduced legislation can, in certain circumstances, force the UK Border Agency to reimburse your fees you paid the firm like ours. So all-in-all one can talk about a “free” appeal assistance.
See our earlier posts in relation to the new “fees reimbursement” options through the IAC or just book an online or phone consultation with me, Anton Koval, to discuss your case: https://legalcentre.org/Initial-Consultation.html
Guidance for caseworkers considering applications under the EU settlement scheme for use during the private pilot has been published recently.
>>> What does the UK BA mean when by “your claim is now academic” ?
It may be the case when a migrant’s Settlement, for example, application, is refused, then the migrant’s Administrative Review is also refused and the migrant then lodged the Judicial Review (JR). At some point the UK BA may come back to the migrant advising to withdraw the JR and also stating that “the (migrant’s) claim is now academic”. So the “claim is now academic” probably means that a decision has been made by the UK BA. In other words, it is highly likely that the migrant’s request has been granted hence the UK BA conceded and there is no need to continue with the JR unless there are other points of law to argue.
31 August 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
[align=justify] [/align]
[align=justify]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923[/align]
[align=justify][/align] >>> The CJEU judgement in the case of Lunes (Toufic Lunes v Secretary of State for the Home Department (C-165/16) has now been implemented by the UK BA !
[size=small]The Home Office have now implemented the judgment in amendments to the Immigration (EEA) Regulations 2016 which came into force on 24 July 2018. The new Regulation 9A now reflects that dual British/EU citizens can continue to rely on EU law as long as they meet the relevant set of requirements as set out in the amended 2016 Regulations, to facilitate the residence of the non-EU family members and sponsor any applications for a residence documentation, post- naturalization of the EU citizen sponsor.[/size]
09 September 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> According to the UK BA response, the Settled status under the UK Immigration Rules cannot be backdated !
Under the current EEA Regulations when an EEA national (and his/her family member) applies for Permanent Residence, the UK BA can usually backdate the application for the Permanent Residence. That means, if an EEA national has provided, with his/her EEA Permanent Residence application sufficient evidence of his/her economic activity in the UK in the last 5+ years, that EEA national’s EEA Permanent Residence application may then be backdated in relation to that EEA national’s DEEMED date that EEA national has acquired his/her Permanent Status in the UK. Such a backdate of the acquisition of the Permanent Residence date may be very helpful as in many cases the Legal Centre’s EEA clients and their non-EEA family members may, in many cases, apply to become British citizens without any delays (usually +12 months).
Now, from the information received from the UK BA, it is clear, that under the EU Settled Scheme there unlikely be any backdates of the EEA nationals’ ILRs. That sadly means, that those EEA nationals, who has not now obtained their Permanent Residence under the currently available EEA regulations, will, in the future, have to wait for the 12 additional months since the grant of their “new” Settled (ILR) status under then the UK Immigration Rules.
Namely, the UK BA is saying the following:
“Settled status (ILR) cannot be back-dated, you only hold it once it is granted by the Home Office. Therefore individuals will need to be resident for a further 12 months free from immigration control before they are eligible to apply for citizenship.
Kind regards,
Settlement Scheme Toolkit Team”
It is still not late to apply for the Permanent Residence status under the currently existing EEA Regulations in order to then promptly apply to become a British citizen, and avoid the minimum 12 months waiting period before a Naturalization application can, otherwise, be made, under the then UK Immigration Law. We are here to help: https://legalcentre.org/Initial-Consultation.html
TF and MA v Secretary of State for the Home Department [2018] CSIH 58 is a recent Court of Session (Inner House) decision which addresses two key themes within the immigration and asylum sphere. Firstly, the extent to which adverse credibility findings against an appellant on the basis of one ground of appeal can be used in the refusal of a separate unrelated ground. Secondly, in cases based on religious persecution, the nature of evidence given by church witnesses, its admissibility and the weight to be attributed to it.
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- FLR(DL): Form to apply for an extension of stay or indefinite leave to remain in the UK if you were refused asylum but given another type of permission to stay in the UK.
- FLR(LR): Form to apply to extend your stay in the UK on the basis of long residence.
10 September 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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11 September 2018 – Read the reviews about our assistance to immigrants and their families like yours :-)
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Information about applying for a UK visa in the USA, including applying online, paying fees, additional services, visa application centres, posting application forms and the super priority service.
The Court of Appeal has ruled that the Strasbourg decision in Paposhvili v Belgium (application no. 41738/10) has no effect on cases where someone relies on Article 8 of the European Convention on Human Rights to claim that they should not be removed from the UK because of a lack of medical treatment in their country of origin. In SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894, the court considered the case of a woman from St Lucia who suffered from mental health problems so serious that she had been unable to give oral evidence in the First-tier Tribunal. Her counsel argued that Paposhvili had made it easier for a medical condition claim to succeed under Article 8.
Earlier this year the same court had held that Paposhvili had led to a “very modest extension” in the scope of Article 3, from cases where the individual is already dying to cases where, after removal, there would be a serious, rapid and irreversible decline in their health leading to death or intense suffering.
In this appeal, Lord Justice Hickinbottom ruled that there had been no corresponding change in the balancing exercise to be conducted under Article 8:
“I am entirely unpersuaded that Paposhvili has any impact on the approach to article 8 claims. As I have described, it concerns the threshold of severity for article 3 claims; and, at least to an extent, as accepted in AM (Zimbabwe), it appears to have altered the European test for such threshold. However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8. The only relevance to article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage article 8 (see (MM (Zimbabwe) at [23] per Sales LJ).”
It is difficult to dispute this conclusion. In Paposhvili the European Court of Human Rights considered Article 8 and concluded that Belgium would have violated that human right if it had removed Mr Paposhvili — but, crucially, that ruling was based entirely on the court’s view that Belgium had failed to comply with its duty to investigate the likely conditions on return as required by Article 3. There was no discussion before the Grand Chamber about how the Article 8 balancing exercise should work and therefore no ruling for the domestic courts in this country to take account of. This issue awaits further development in the jurisprudence of the Strasbourg court before it becomes a live topic again in domestic courts.
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>>> Migration Advisory Committee recommends changes to the Tier 4 Student visa rules
The MAC’s recommendations are as follows:
1. To retain no cap on the numbers of international students.
2. Government and the sector should continue to work together to grow the number of international students.
3. International students should not be removed from the net migration statistics.
4. Rules of work while studying and dependant rights should remain unchanged.
5. Widening of the window in which applications for switches from Tier 4 to Tier 2 can be made.
6. Post-study leave period extended to six months for Master’s students, though with a more thorough review of whether this is appropriate.
7. The 12 months leave to remain after PhD completion be incorporated into the original visa duration, subject to meeting progress requirements and course completion, for eligibility to remain in the UK after course end date. This would replace the existing Doctoral Extension scheme that allows the same rights but has to be applied for with associated visa costs.
8. Previous Tier 4 students, who passed their Level 6 (or above) qualification in the UK, should be entitled to a two-year period from course completion during which they can apply out-of-country for a Tier 2 visa, under the same rules as current in-country Tier 4 to Tier 2 switches.
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And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> What the Brexit White Paper says about immigration: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/724982/The_future_relationship_between_the_United_Kingdom_and_the_European_Union_WEB_VERSION.pdf
The UK Government has published a White Paper describing what it wants from the future relationship between the UK and EU. The 100-page document includes some references to the future of immigration from the EU, but only in certain, limited areas.
Overall, the government does not have a policy on what will replace free movement of people. That is to be the job of a separate White Paper and an Immigration Bill, which “will bring EU migration under UK law, enabling the UK to set out its future immigration system in domestic legislation… further details of the UK’s future immigration system will be set out in due course”.
In the meantime, set out in full below are the various aspects of the White Paper that do touch on immigration and asylum. Perhaps more significant than any of those passages is the promise that “the UK is committed to membership of the European Convention on Human Rights” and “will remain a party to the ECHR after it has left the EU”.
And so:
1.4 Framework for mobility
72. EU citizens are integral to communities across the UK, with 3.5 million EU citizens living in the UK. Approximately 800,000 UK nationals play an equally important role in communities across the EU. The UK and the EU have already reached an agreement on citizens’ rights which provides EU citizens living in the UK and UK nationals living in the EU before the end of the implementation period with certainty about their rights going forward. Individuals will continue to be able to move, live and work on the same basis as now up until the end of December 2020.
1.4.1 Ending free movement of people
73. In future it will be for the UK Government and Parliament to determine the domestic immigration rules that will apply. Free movement of people will end as the UK leaves the EU. The Immigration Bill will bring EU migration under UK law, enabling the UK to set out its future immigration system in domestic legislation.
74. The UK will design a system that works for all parts of the UK. The Migration Advisory Committee (MAC) report, due in September 2018, will provide important evidence on patterns of EU migration and the role of migration in the wider economy to inform this. Further details of the UK’s future immigration system will be set out in due course.
75. The UK will continue to be an open and tolerant nation, and will want to continue to attract the brightest and best, from the EU and elsewhere. The UK’s future immigration arrangements will set out how those from the EU and elsewhere can apply to come and work in the UK. This will be crucial to supporting its public services, as well as enhancing the UK’s attractiveness for research, development and innovation.
1.4.2 Future mobility arrangements
76. Any future mobility arrangements will be consistent with the ending of free movement, respecting the UK’s control of its borders and the Government’s objective to control and reduce net migration. Trade agreements which cover trade in services include provisions on the mobility of people for the provision of services (known as ‘Mode 4’ commitments). Given the depth of the relationship and close ties between the peoples of the UK and the EU, the UK will make a sovereign choice in a defined number of areas to seek reciprocal mobility arrangements with the EU, building on current WTO GATS commitments. The UK has already proposed that this should be achieved in an appropriate framework for mobility, in line with arrangements that the UK might want to offer to other close trading partners in the future, where they support new and deep trade deals. The UK’s future economic partnership should therefore provide reciprocal arrangements, consistent with the ending of free movement, that:
a. support businesses to provide services and to move their talented people;
b. allow citizens to travel freely, without a visa, for tourism and temporary business ac-tivity;
c. facilitate mobility for students and young people, enabling them to continue to benefit from world leading universities and the cultural experiences the UK and the EU have to offer;
d. are as streamlined as possible to ensure smooth passage for legitimate travel while strengthening the security of the UK’s borders; and
e. provide for other defined mobility provisions, including arrangements to ensure that UK citizens living in the EU, in future, continue to benefit from their pension entitle-ments and associated healthcare.
77. These proposals are without prejudice to the Common Travel Area (CTA) arrangements between the UK and Ireland, and the Crown Dependencies. The CTA means that Irish citizens will continue to enjoy a special status in the UK, provided for by domestic legislation, distinct from the status of other EU nationals.
78. The principle of non-discrimination between existing Member States should apply to all of the provisions agreed as part of the framework for mobility.
Business and services
79. UK firms and global investors rely on the ability to move and attract talent to support global operations, and to send people to provide services across Europe. Indeed, mobility is a key element of economic, cultural and scientific cooperation, ensuring professional service providers can reach clients, advanced manufacturers can deploy key personnel to the right place, and scientists can collaborate on world-leading projects.
80. The UK would seek reciprocal arrangements that would allow UK nationals to visit the EU without a visa for short-term business reasons and equivalent arrangements for EU citizens coming to the UK. This would permit only paid work in limited and clearly defined circumstances, in line with the current business visa policy.
81. As is the case with non-EU countries with whom the UK has a trading agreement, the UK also wants to agree reciprocal provisions on intra-corporate transfers that allow UK and EU-based companies to train staff, move them between offices and plants and to deploy expertise where it is needed, based on existing arrangements with non-EU countries. The UK will also discuss how to facilitate temporary mobility of scientists and researchers, self-employed professionals, employees providing services, as well as investors.
Tourism
82. In the year ending September 2017, UK residents made approximately 50 million non-business related visits to the EU spending £24 billion, and EU residents made over 20 million non-business related visits to the UK spending £7.8 billion.
83. The UK therefore proposes reciprocal visa-free travel arrangements to enable UK and EU citizens to continue to travel freely for tourism in the future, maintaining the close links between the people of the UK and the EU. 84. The Government wants UK and EU nationals to continue to be able to use the European Health Insurance Card (EHIC) to receive healthcare should they need it while on holiday.
Students and young people
85. The UK and the EU should continue to give young people and students the chance to benefit from each other’s world leading universities, including cultural exchanges such as Erasmus+.
86. The UK proposes a UK-EU youth mobility scheme to ensure that young people can continue to enjoy the social, cultural and educational benefits of living in each other’s countries. The UK already operates a number of youth mobility schemes with other global partners, for example with Australia and Canada, on which this could be modelled.
Streamlined border arrangements and administrative procedures
87. The UK already has existing arrangements with low-risk, non-EU countries that enable smooth access at the border, such as the Registered Traveller Scheme in place with a number of countries like the US and Japan. The UK wants to agree reciprocal arrangements with the EU that ensure smooth passage for UK nationals when they travel to the EU, for example on business or on holiday. The UK will strengthen the security of its borders, which should include exploring whether to apply the electronic travel authorities proposed for third country nationals to each other’s nationals, and ensuring travel documents meet minimum security standards. But at the border, as now, tourists and business visitors should not routinely have to face questions about the purpose of their visit. The UK also wants to minimise administrative burdens for those seeking permission to travel, enter or reside in each other’s territories, including short, simple and user-friendly application processes.
88. Streamlined arrangements are particularly important at the Gibraltar-Spain border, which is crossed every day by thousands of people from other Member States.
Other mobility provisions
89. While ending free movement, the UK will also make a sovereign choice to discuss other specific mobility areas. The UK will seek reciprocal arrangements on the future rules around some defined elements of social security coordination. This will be important for UK nationals who want to live, work or retire in the EU in the future, as part of our new arrangements. This could cover provisions for the uprating of state pensions, including export rules and accompanying aggregation principles for people who have contributed into multiple countries’ systems. It would also ensure workers only pay social security contributions in one state at a time. There should be reciprocal healthcare cover for state pensioners retiring to the EU or the UK, continued participation in the EHIC scheme and cooperation on planned medical treatment. This would be supported by any necessary administrative cooperation and data-sharing requirements.
90. The UK will also seek to secure onward movement opportunities for UK nationals in the EU who are covered by the citizens’ rights agreement. Some of these UK nationals have chosen to make their lives in the EU, and this should be respected in the opportunities available to them if they decide to change their Member State of residence.
91. The framework for mobility could also cover the recognition of professional qualifications held by UK and EU nationals as covered in section 1.3 of this chapter.
…
2.5.1 Asylum and illegal migration
98. Properly managed migration brings benefits to local communities and economies. But high levels of illegal migration present a global challenge, enabling organised crime, people trafficking and modern slavery to prosper.
99. The UK has a significant presence overseas, conducting capacity and capability building in source and transit countries and deconstructing criminal business models, through participation in development programmes and through seconded national experts. It is vital that the UK and the EU establish a new, strategic relationship to address the global challenges of asylum and illegal migration.
100. The UK therefore proposes a comprehensive, ‘whole of route’ approach that includes interventions at every stage of the migrant journey and ensure no new incentives are created to make dangerous journeys to Europe. It should cover:
a. ongoing operational cooperation, for example working with Frontex to strengthen the EU’s external border, and Europol to combat organised immigration crime;
b. a new legal framework to return illegal migrants and asylum-seekers to a country they have travelled through, or have a connection with, in order to have their protection claim considered, where necessary. People should be prevented from making claims in more than one country, and on multiple occasions. A clear legal structure, facilitated by access to Eurodac (the biometric and fingerprint database used for evidencing secondary asylum claims) or an equivalent system will help achieve this;
c. new arrangements that enable unaccompanied asylum-seeking children in the EU to join close family members in the UK, where it is in their best interests and vice versa;
d. a continued strategic partnership to address the drivers of illegal migration by invest-ing and building cooperation in source and transit countries;
e. continued UK participation in international dialogues with European and African partners, frameworks, and processes, such as the Rabat and Khartoum Processes, to tackle illegal migration upstream; and
f. the option to align and work together on potential future funding instruments through the cooperative accord on overseas development assistance and international action outlined in chapter 3.4.
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[align=justify]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923[/align]
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>>> Court of Justice finds Surinder Singh applies to extended family members: http://www.bailii.org/eu/cases/EUECJ/2018/C8917.html
The unmarried partner of a British citizen who returns to the UK having resided in another EU country does have rights under EU law, the Court of Justice of the European Union has today held in the case of C 89/17 Banger v UK. The court also finds that if such a person is refused, he or she is entitled to a proper investigation of the factual basis of the case.
In other words, the Court of Justice extends the principle of the Surinder Singh judgment to extended family members.
The judgment makes clear that there is no automatic right to a residence card for extended family members. They are entitled to facilitation of their entry and residence and to extensive examination of their personal circumstances and any refusal must be justified by reasons, all in accordance with the rights of extended family members in Article 3 of Directive 2004/38.
This decision means that UK has been wrongly refusing applications of this type for years and will have to formally amend the Immigration (European Economic Area) Regulations 2016 (SI 2016 No. 1052) in order to comply with EU law.
The judgment also implies that the UK’s decision to abolish full rights of appeal for extended family members in 2016 was incompatible with EU law. Instead of merits appeals, extended family members now have to rely on an application for judicial review as their only available remedy.
The court held that when an extended family member is refused a residence document, that person:
- must have available to them a redress procedure in order to challenge a decision to refuse a residence authorisation taken against them, following which the national court must be able to ascertain whether the refusal decision is based on a sufficiently solid factual basis and whether the procedural safeguards were complied with.
It is hard to see that an application for judicial review really provides this type of remedy. The grounds of challenge are based on reviewing whether the decision under challenge was lawful, not whether it was “correct” in the opinion of the judge. Judicial review does not permit the judge hearing the case to make up his or her own mind about what the outcome should be, only whether the decision-maker made any legal errors in reaching the decision.
There is a line of authority suggesting that judicial review is an adequate remedy in EU law, though, so the question of whether a formal right of appeal needs to be restored is not entirely straightforward.
What is straightforward is that the original tribunal decision in Sala which triggered the abolition of rights of appeal for extended family members has been held to be wrong in the Court of Appeal and the Supreme Court and now implied to be wrong by the Court of Justice. There was no need to abolish rights of appeal and on a policy and human level, the Home Office should just restore them. It is very hard indeed to see the justification for removing a relatively cheap and effective remedy and replacing it with a complex, expensive and flawed one.
It is standard when the Home Office wins a case for the regulations to be amended immediately, but when the Home Office loses a case for it to take many months for implementation to occur. The last case the UK lost, Lounes, which was on the issue of the rights of dual EU-UK nationals, was in December 2017 but will only be implemented in late July 2018.
Extended family members wishing to benefit from Surinder Singh will probably need to wait many months before the regulations are formally amended. But applications should not be refused in the meantime and if there is a pressing need an application could be made now.
Looking ahead, Surinder Singh families are not covered by the draft Brexit Withdrawal Agreement, but the UK government has said that they will be able to apply for the settled status scheme anyway.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance: Returning residents (13 July 2018): https://www.gov.uk/government/publications/returning-residents?utm_source=b270dbbd-2d83-4e4b-889e-cc969a8d5fa4&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on processing returning resident applications
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Home Office unlawfully nullifies British citizenship in hundreds of cases
New figures from the Home Office show that hundreds of British citizens have unlawfully had their citizenship nullified since 2013. A Freedom of Information request revealed that there were 262 decisions to nullify British citizenship between 2007 and 2017, peaking at 176 cases in 2013. In December 2017, the Home Office conceded in a Supreme Court case that these nullification decisions were almost all unlawful.
A team of 11 civil servants in the Status Review Unit is now reviewing the historic decisions. A different legal process called deprivation of citizenship is likely to be used in at least some of the reviewed cases.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Updates to the Tier 2 and 5 guidance for sponsors
The guidance that Tier 2 and 5 sponsors must follow was updated last week. The new version applies to sponsor licence applications made, and certificates of sponsorship assigned, on or after 18 July 2018.
Some of the key changes are:
Fees and refunds
• Application fees for sponsor licence applications and certificates of sponsorship will not be refunded if a sponsor withdraws an application once consideration has begun (paragraph 1.15).
• In the previous update to the guidance in January 2018, sponsors were placed under a new reporting duty. They now have to report within ten working days if the size of the sponsor’s business changes from a small to a medium/large company or vice ver-sa. The change was necessitated by the Immigration Skills Charge (ISC) applicable to a sponsored worker assigned a certificate of sponsorship on or after 6 April 2017 in the Tier 2 General or Intra-Company Transfer categories. This updated guidance contains a further reminder to tell the Home Office if the size of the business chang-es, so that the respective ISC can be correctly levied (1.16).
• Again on the Immigration Skills Charge, refunds will be issued for “all whole unused 6 month periods of leave” except where the worker leaves their post during the first year of employment. In that case, no refund is made in respect of that first year (1.23).
• The guidance also confirms that that the Immigration Skills Charge does not apply to Tier 2 migrants seeking to extend their leave to remain with the same employer in the same role, who made their initial application to switch from Tier 4 after 6 April 2017 (1.18).
Doctors and nurses
• As of 6 July 2018, medical practitioner and nursing occupations (SOC codes 2211 and 2231) have been excluded from the Tier 2 (General) annual quota. To align with this relaxation of the rules, doctors and nurses have been added to the list of people to whom an unrestricted certificate of sponsorship may be assigned (29.4)
• The Occupational English Test has been added to the list of acceptable tests for nurs-es proceeding towards registration with the Nursing and Midwifery Council (15.18).
Resident Labour Market Tests
• Referencing Appendix D paragraph 2K, employers must now provide information about settled worker applicants who do not take up the job or whose applications are rejected. For example, the employer must provide interview notes or other documentation which show the reasons why they have not been employed.
• A paragraph has been added and surrounding paragraphs renumbered to reflect that the fact that established researchers at a Higher Education Institution or Research Council are exempt from the RLMT process (28.11).
Also of note are detailed guidance on rates of pay for new entrants (26.4 and 26.8), further clarification on making affidavits relevant to the Intra-Company Transfer category (8.2) and detailed notes on how to correctly certify a document (8.3).
>>> Torture victim wins unlawful detention claim over delay in medical assessment: http://www.bailii.org/ew/cases/EWHC/Admin/2018/1767.html
The High Court has ruled that failure to provide a medical assessment within 24 hours of arrival at a detention centre can make continued detention unlawful. In R (KG) v Secretary of State for the Home Department [2018] EWHC 1767 (Admin) the court found that the Home Office had failed to comply with Rule 34 of the Detention Centre Rules 2001, which requires assessment by a detention centre GP within 24 hours. As a result, the Home Office did not realise that the claimant was a victim of torture and unlawfully detained him for a month.
The claimant, KG, was detained on 6 January 2016 without a medical assessment and claimed asylum the following day. On 14 January 2016 he was seen by a nurse because he had moved to a different detention centre, but no-one asked him about whether he had ever been tortured. KG told the Home Office that he had been tortured in an asylum interview on 15 January 2016 and asked to see a doctor on 18 January 2016. The appointment finally took place on 4 February 2016, after which the Home Office released KG because the GP said that he was a victim of torture.
This case is an excellent example of the High Court supervising the Secretary of State’s compliance with the Detention Centre Rules. Most of the day-to-day functioning of detention centres is shielded from public view so detainees rely on the courts to enforce the rules strictly and punish the Home Office for its mistakes. Hopefully the award of compensation for KG in this case will ensure that Rule 34 medical assessments are provided to all detainees in future.
>>> How will Brexit affect Irish citizens : https://www.gov.uk/government/publications/eu-settlement-scheme-statement-of-intent ?
The government’s view is that Brexit will not affect Irish citizens at all. On 21 June 2018 the government published details of its plan to offer settled status to EU citizens who currently live in the United Kingdom. It confirmed the government’s position that Irish citizens have a general right to live in the United Kingdom which is entirely separate to their rights as EU citizens.
But the document gives no explanation of the legal basis for this right of residence in the UK after Brexit. Although it is clear that the government has no intention at present of enforcing immigration controls against Irish citizens, whether they will have a general legal exemption from UK immigration laws remains an important question.
Firstly, if there is no statutory exemption from immigration control then at least some Irish nationals would be vulnerable to a change in government policy. Secondly, if there are no amendments to the UK Borders Act 2007, the automatic deportation regime imposed by that act would apply to Irish citizens. That would force the government to deport Irish nationals who have committed a serious crime even if the Home Secretary did not wish to deport them.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance: Statement of changes to the Immigration Rules: CM 9675, 20 July 2018 (20 July 2018): https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-cm-9675-20-july-2018?utm_source=0406d08b-fd7a-419d-b67c-28befec306f5&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This document sets out the specific changes to the Immigration Rules on given dates (including Appendix EU)
>>> UKVI Guidance: EEA nationals qualified persons (24 July 2018) : https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons?utm_source=3df78855-ed6e-4481-9e4e-a008eaea02e2&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This document explains how UK Visas and Immigration assesses if an EEA national is a qualified person.
>>> UKVI Guidance: Free movement rights: direct family members of EEA nationals (24 July 2018): https://www.gov.uk/government/publications/direct-family-members-of-european-economic-area-eea-nationals?utm_source=df1e1678-f0dc-49f9-8293-00f194a5ea8a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This document explains how UK Visas and Immigration considers free movement rights of direct family members of EEA and Swiss nationals.
>>> Time spent as extended family member without permit doesn’t count toward permanent residence: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1558.html
Macastena v Secretary of State for the Home Department [2018] EWCA Civ 1558 highlights the difference between extended family members’ rights and family members’ rights under EU law, as well as the extent of the tribunal’s statutory remit.
>>> People can now be deprived of their British citizenship by email: http://www.legislation.gov.uk/uksi/2018/851/made
The “updates” on methods of service of a proposal to deprive a person of their citizenship in fact enable service by email or fax to an address/number previously provided, or to a legal representative (whether it is actually received or not). It also enables “service to file” (meaning “not served”, in truth) where service cannot be effected.
These changes are made in the British Nationality (General) (Amendment) Regulations 2018 (SI 2018 No. 851) and come into force on 9 August.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance: EU Settlement Scheme: employer toolkit - https://www.gov.uk/government/publications/eu-settlement-scheme-employer-toolkit?utm_source=9fa1b068-1fe4-4cd3-9d38-f869f06b2d43&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This toolkit contains leaflets, posters and a briefing pack to help employers across the UK communicate clear and consistent messages about the EU Settlement Scheme.
EU citizens and their families will be able to apply for settled status through the EU Settlement Scheme.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Collection of the UK visa, immigration and citizenship application forms: https://www.gov.uk/government/collections/uk-visa-forms
You may be surprised how MANY immigration form are there.
>>>The Immigration and Nationality (Fees) Regulations 2018: http://www.legislation.gov.uk/uksi/2018/330/made
The current Immigration and Nationality fees for the in and out of country immigration applications (formal source)
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Collection of the UK visa, immigration and citizenship application forms: https://www.gov.uk/government/collections/uk-visa-forms
You may be surprised how MANY immigration form are there.
>>> The Immigration and Nationality (Fees) Regulations 2018: http://www.legislation.gov.uk/uksi/2018/330/made
The current Immigration and Nationality fees for the in and out of country immigration applications (formal source)
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance re Tier 1 (Exceptional Talent) endorsement review form (30 July 2018): https://www.gov.uk/government/publications/application-for-endorsement-for-tier-1-exceptional-talent-visa?utm_source=a4ab7d00-1c21-44fd-9c33-9db28b11f6f3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form to apply for a Tier 1 (Exceptional Talent) endorsement review.
Updated codes of practice for competent bodies for August 2018.
>>> UKVI Guidance re Reconsiderations (30 July 2018): https://www.gov.uk/government/publications/reconsiderations?utm_source=acc03a41-1595-489e-a50d-81a56845c55c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Modernised guidance on how UK Visas and Immigration makes a decision about reconsidering an application.
UK Visas and Immigration modernised guidance for how it decides what to do when an applicant believes a Home Office temporary or permanent migration decision is incorrect and asks for it to be reconsidered.
>>> UKVI Guidance re Resettlement: policy statement (30 July 2018): https://www.gov.uk/government/publications/resettlement-policy-statement?utm_source=257f9cca-383a-407b-9a73-38219c3ab6cb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Overview of the Home Office’s resettlement policies and the main resettlement schemes.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> New guidance on costs awards against the Home Office could transform immigration appeals: https://www.judiciary.uk/wp-content/uploads/2018/07/costs-guidance-2018.pdf
In a highly significant development, the President of the First-tier Tribunal has issued a new guidance note on how migrants who win an appeal against the Home Office can seek legal costs from the department. The guidance envisages costs awards for “unreasonable conduct” where the Home Office contests an appeal “which is, objectively assessed, irresistible or obviously meritorious” and demands that officials carry out an initial assessment of whether an appeal should be defended within six weeks of it being lodged.
Who should costs orders be made against?
The guidance has two parts, reflecting the two different hearings held in the test cases. The first part considers whether an application for costs could be made against individual representatives of the Home Office (Home Office Presenting Officers), or only against the Home Office as a department. The decision of the Presidential panel was that it was inappropriate to make an Order against an individual HOPO. Although this issue was naturally of great importance to HOPOs, it was of less significance for Appellants. If a HOPO has acted unreasonably in the course of an appeal, the important thing for Appellants is that there is some sanction to discourage such conduct in future and that they are compensated for any additional legal expenses they incur as a result. Whether that sanction and compensation technically takes the form of an application for costs against the individual HOPO or against the Home Office more generally may make little practical difference.
When is it unreasonable for the Home Office to defend a wrong decision?
The second part of the guidance considers the wider question of the factors a Judge should consider when deciding if conduct has been unreasonable enough to justify an award of costs. It briefly addresses issues such as the period the costs award might cover, the latitude to be afforded to unrepresented litigants, and the need for Judges to give reasons for their decisions.
The most significant part of the guidance sets out when it is unreasonable for the Home Office to defend an appeal at all. The Home Office’s published policy is to refuse to reconsider a decision, no matter how flawed, if there is a right of appeal to the Tribunal. During the appeal proceedings, Home Office practice has been not to consider the merits of their refusal decision until, at the very earliest, 24 to 48 hours before the full hearing, when the is file assigned to a Home Office Presenting Officer to prepare for the hearing. In some cases, it is only at this point that a conscientious HOPO would recognise that the decision was simply wrong and could not be defended – although even in many such cases, individual HOPOs were unable to get permission to withdraw the decision prior to the hearing and had to appear in court to defend what they knew was an indefensible decision. In cases where the Home Office did not send a representative to court, or where they instructed outside Counsel, there was simply no opportunity for the Home Office to withdraw even those most egregiously incorrect decisions.
The decision of the Presidential Panel on this issue was that this behaviour was unlawful. The new Presidential Guidance makes it clear that it is unreasonable and may be grounds for an Appellant to be awarded their costs. The guidance sets out the following general principles:
1. It will “as a strong general rule, be unreasonable to defend – or continue to defend – an appeal which is, objectively assessed, irresistible or obviously meritorious.”
2. The Home Office should assess every refusal decision within six weeks of being notified that the appeal has been lodged. If the appeal is obviously meritorious, it is unreasonable for the Home Office not to make appropriate concessions or even withdraw the appeal at that point.
3. The Home Office should assess the decision again whenever there is any significant development in the law or the evidence. This means that Appellants whose applications may have been refused because of inadequate or missing evidence have a right to expect that the Home Office will review the refusal decision and withdraw it if appropriate after new evidence has been served. This could be shortly before the hearing, but it could be many months earlier.
4. These assessments must be carried out by a “reasonably competent civil servant”, presumed to be “properly qualified and sufficiently trained so as to adequately discharge the important function of representing a high-profile Government Minister in the self-evidently important sphere of immigration and asylum legal proceedings in a society governed by the rule of law.”
This may give some encouragement to the many Home Office employees who work hard to do the right thing, but sometimes without the training or support they need. It also means that Appellants do have the right to expect that refusal decisions will be reviewed carefully, fairly, and in accordance with the law and the evidence, which has not always been the case in the past.
This guidance is essential reading for anyone who feels that their application to the Home Office has been unfairly refused. As long as they have a right of appeal, they can now point to this guidance and urge the Home Office to reconsider the decisions that are clearly wrong, even long before the hearing.
If the Home Office fails to respond, maintains the refusal decision for inadequate reasons, or only withdraws the decision at a very late stage, the Appellant should consider applying to the Tribunal for an order that the Home Office pay their costs in the appeal.
The full case on which the guidance is based is unreported, but Appellants can nonetheless apply to the Tribunal to be allowed to rely on it. It contains helpful discussions of the reasoning behind the principles set out above, as well as applying these principles to the facts of the four individual cases.
How is a costs application made?
Applications for costs must be made to the Tribunal that heard the appeal and served on the Home Office. They must be made within 28 days of when an appeal is concluded. This could be within 28 days of when the Tribunal decides that the appeal should be treated as withdrawn (because the Home Office has withdrawn its refusal decision), or 28 days after the decision allowing the appeal is sent to the Appellant. There is no specific form or fee for this application. Because the law on when Appellants should be awarded their costs is new and still developing, it may be advisable for Appellants to seek legal advice and assistance before making a costs application.
>>> Home Office “misled” judge over Calais children, Court of Appeal finds: https://www.judiciary.uk/wp-content/uploads/2018/07/citizens-uk-judgment-final-31.7.18.pdf
The Home Office has been found in serious breach of its duty to the court after submitting misleading evidence about how it handled the rescue of refugee children from the demolished Calais “jungle” camp. The judgment in R (Citizens UK) v Secretary of State for the Home Department [2018] EWCA Civ 1812 was handed down recently.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Court of Appeal reviews law on deportation cases involving EU derived rights of residence: http://www.bailii.org/ew/cases/EWCA/Civ/2018/85.html
Those with a derivative right of residence on Zambrano grounds must not [be] refused a residence permit on the sole ground that they have a criminal record, but deportation can be justified where the personal conduct of the third-country national constitutes a genuine, present and sufficiently serious threat adversely affecting one of the fundamental interests of the society considering all relevant circumstances, in the light of the principle of proportionality.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> An online immigration application is of course valid, Court of Appeal says: http://www.bailii.org/ew/cases/EWCA/Civ/2018/1669.html
R (Singh) v The Secretary of State for the Home Department [2018] EWCA Civ 1669 is about how the transitional provisions in the Immigration Rules apply to online applications which must be supported with further evidence sent later by post. The appellant argued that an application made online without supporting evidence was not valid and therefore did not count as an application for the purpose of deciding whether the “old” or “new” Rules applied. The Court of Appeal rejected this argument and ruled that the online application did count and therefore the previous Rules would apply. This meant the appellant could not benefit from a change to the Rules which required the Home Office to chase applicants for missing evidence and give them an additional 10 days to submit it.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Extending a visitor visa while in the UK ?
In certain cases it may be possible to extend one’s visitor visa while in the UK due to certain compelling circumstances. Say, if the couple was visiting the UK and one of the spouses was diagnosed with a serious medical condition. It may then be possible to extend a visitor visa in-country for the purpose of the private medical treatment via the firm FLR(IR).
In certain other cases it may also be possible to extend one's visitor visa. I have done it in the past for number of clients.
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And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Extending a visitor visa while in the UK ?
In certain cases it may be possible to extend one’s visitor visa while in the UK due to certain compelling circumstances. Say, if the couple was visiting the UK and one of the spouses was diagnosed with a serious medical condition. It may then be possible to extend a visitor visa in-country for the purpose of the private medical treatment via the form FLR(IR).
In certain other cases it may also be possible to extend one's visitor visa. I have done it in the past for number of clients.
>>> Home Office concedes that Irish citizens are settled in the UK
The Home Office has confirmed that Irish citizens living in the UK are considered “settled” for the purposes of immigration law. The department said that officials in individual cases who had denied that Irish citizens were settled as soon as they took up residence in the UK were wrong to do so, and that it had send out guidance to ensure that decision-makers are aware of the correct position.
Irish nationals are treated differently in UK immigration law to any other nationality, as the Common Travel Area joins the UK and Republic of Ireland in a free movement zone independently of the European Union. This special status includes an Irish citizen being considered “settled” — having legal permission to live in the UK permanently unless deported for a criminal offence — as soon as they take up ordinary residence here.
>>> How is the government using its increased powers to strip British people of their citizenship?
The recent judgment in Aziz & Ors v Secretary of State for the Home Department [2018] EWCA Civ 1884 saw the Court of Appeal uphold the Home Secretary’s decision to use her power to strip members of a notorious Rochdale grooming gang of their British citizenship. The use of a power once reserved for national security cases to impose additional punishment upon serious criminals is new.
The legal constraints on this power have been significantly loosened over the years, and the Rochdale case shows that the Home Office is prepared to exercise it in circumstances other than those touching on national security, as has traditionally been the case. This would, if the start of a trend, be cause for concern — or at least some public debate.
>>> UK Visas and Immigration Guidance: EEA nationals qualified persons (09 August 2018): https://www.gov.uk/government/publications/european-economic-area-nationals-qualified-persons?utm_source=37f599b7-ffa3-4159-b031-27fb28d4fa54&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on European Economic Area (EEA) national qualified persons.
>>> UK Visas and Immigration Form: Application for certificate showing right of abode (09 August 2018): https://www.gov.uk/government/publications/application-for-certificate-showing-right-of-abode?utm_source=14c424a2-ee76-4ed7-ab1a-76bb7b2e403d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form ROA to apply for a certificate of entitlement proving you have the right to live and work in the UK.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> The 6 items of correspondence “Rules” for the FLR(M), SET(M) etc applications may I unlawful, the UTT says: https://tribunalsdecisions.service.gov.uk/utiac/2016-ukut-25
The requirement for the couple to have 6 items of (joint) correspondence addressed to them was proved unlawful by the UTT. That said, the application forms still list this requirement and it is best to comply with the requirements rather than taking a risk of a possible refusal. Put it simply – the UK BA caseworkers are simple clerks and they are not suppose to know (and they often do not) the in-depth case-law.
>>> When does an EEA national can apply for Permanent Residence without showing the evidence of economic activity ?
This may be possible when, say, an EEA national wife has been a worker for a period of 5 years. Then the EEA national husband can simply joint the EEA wife’s PR application as a qualified family member.
>>> Permanent Residence BRP card issued for the period under 10 years (usually up to the 31st December 2024) ? Here is why:
From the UK BA, the response:
“Thank you for your enquiry regarding the expiry date on your Biometric Residence Permit (BRP).
To explain, we are required by the EU to restrict BRPs which do not incorporate the next generation of encryption technology to a validity date of 31 December 2024.
As the UK intends to introduce the new technology in due course, the date restriction affects only cards issued to adults with settled status, as no other BRPs that we issue would still be valid on that date.
Any card restricted to 31 December 2024 which is still rightfully held on 01 July 2024 will be replaced free of charge, with the remainder of the 10 year period initially expected being issued on a new BRP.
This means that anyone who has paid a fee in expectation of receiving ten year evidence of settled status will still do so but it will be spread over two BRPs.
The date restriction does not change the entitlements of the rightful holder to work, access services/benefits or travel. The rightful holder still has settled status.
A date restricted card replaced as a result of a charged application made after the UK introduction of the new encryption technology will be valid to a date 10 years from issue of the initial card. (This typically applies to requests to replace a lost or stolen card, and requests to reflect a lawful change of name, gender or nationality.)
The exact process for providing replacement BRPs to applicants in this position has yet to be determined. Therefore we recommend that applicants study the guidance made available by the Government prior to the expiry of their BRP to establish the steps needed to undertake in replacing their permit.
We hope this clarifies the current situation and thank you for your kind attention to this matter.
Kind Regards
BRP Error Team”
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK Visas and Immigration Guidance: Endorsing bodies: Tier 1 (Graduate Entrepreneur): https://www.gov.uk/government/publications/endorsing-bodies-tier-1-graduate-entrepreneur?utm_source=16255110-66a2-4ffc-bee9-f0e7e94245ff&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of authorised institutions for Tier 1 (Graduate Entrepreneur).
Updated to remove the University of Bedfordshire.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK Visit visa refused ? Possible ways forward explained
Re-apply
If it works, the simplest way to deal with a visa refusal is to re-apply, submitting a new application form with new evidence and a new fee. But is it likely to work or is it a waste of time and money?
If the application was refused because insufficient evidence was submitted, for example bank statements or similar, then this should be quite easy to correct.
It is far from unknown for a visa official simply to ignore or overlook evidence that was actually submitted, though. Where this happens it is unfair to have to pay another fee and a letter to the Entry Clearance Manager asking for reconsideration is worth considering.
There are some circumstances where it is clear that reconsideration or re-application is not likely to be available and a legal challenge will be needed instead. For example:
• If the previous refusal states that the applicant has been excluded from the UK for a certain period of time, for example for use of deception. If there was some sort of simple and obvious misunderstanding or mistake it may be possible to remedy this by a reconsideration request or new application but in most cases a legal challenge will be needed.
• Where the evidence relied on was rejected as being from an inadequate or unverifiable source. There is little point re-submitting the same documents a second time.
• Where the reason stated by the visa officer is that the applicant is not a genuine visitor or does not have an intention to return. There are usually no extra documents that can be submitted to prove one’s case once these subjective intention issues arise.
Some visa application posts are more reasonable and make better quality decisions than others. Quality of decisions in Islamabad is very poor, for example, whereas New York is far better. A reapplication or reconsideration request is well worth considering at the latter post because someone might actually engage with the issues rather than merely mindlessly re-refusing.
If reconsideration or re-application are not likely to work or have been tried and failed, it is time to consider legal action.
Right of appeal
As of July 2013 it is only possible to appeal to the immigration tribunal against refusal of a visit visa where the grounds of appeal are on human rights grounds. Whether or not the visit engages human rights considerations therefore determines whether there is a right of appeal.
The problem is that a person may attempt to appeal on human rights grounds but, many months later and after having paid appeal fees and legal costs, a judge may decide the visit does not really raise human rights grounds and therefore there was no right of appeal in the first place. A lot of time, energy and money will have been wasted bringing the appeal, and the chance lost to challenge the refusal by other means such as an application for judicial review.
To say this is unsatisfactory is an understatement.
Case of Mostafa
In the case of Mostafa (Article 8 in entry clearance) [2015] UKUT 112 (IAC) the Upper Tribunal considered this question of when human rights might be engaged in a visit visa case. The tribunal held that where a couple are married human rights are certainly engaged but expressed some scepticism whether human rights might be engaged in other, wider circumstances. The determination is considered further below. Only family life relationships were considered, by the tribunal, though, not private life, and the tribunal also omitted to consider whether a different standard for engagement of human rights was relevant for a temporary visit as opposed to a settlement application. After all, in AG (Eritrea) v Secretary of State for the Home Department [2007] EWCA Civ 801 the Court of Appeal in a unified judgment looked at Costello-Roberts v United Kingdom (1993) 19 EHRR 112 then held:
“It follows, in our judgment, that while an interference with private or family life must be real if it is to engage art. 8(1), the threshold of engagement (the “minimum level”) is not a specially high one. Once the article is engaged, the focus moves, as Lord Bingham’s remaining questions indicate, to the process of justification under art. 8(2). It is this which, in all cases which engage article 8(1), will determine whether there has been a breach of the article.”
Lastly, the appellant in Mostafa was unrepresented, meaning that no legal argument was presented on these issues and no onward appeal was realistically feasible.
What sorts of visits might pass the test?
It might be thought that visits between close family members, particularly visits intended to maintain a relationship, would engage human rights protection at some level: without face to face visits, any relationship is surely doomed over time.
For example, a visit from one spouse to another, particularly if separated by the harsh family settlement rules, would on the face of it engage Article 8. A visit of a young child to the UK to see a parent or a parent to see a young child would also appear to engage human rights protection at some level. The same might be said of a visit of an elderly relative to see his or her children and family in the UK where settlement is not an option because of the Catch-22 nature of the new dependent relative rules.
Some other types of relationship may also reach the relevant threshold, yet it may be challenging to arrange the suitable documentary evidence.
>>> How does the UK BA assess the validity of a marriage ?
14. SET3.14 Assessment of validity of marriage: https://www.gov.uk/government/publications/spouses-set03/spouses-set03?utm_source=Free+Movement&utm_campaign=4dc0988410-Daily+forum+updates&utm_medium=email&utm_term=0_792133aa40-4dc0988410-116194677&mc_cid=4dc0988410&mc_eid=1af5cd4d48#set314-assessment-of-validity-of-marriage `
The ECO must be satisfied that the parties are validly married to each other. Most applications will normally be made in the country where the marriage took place.Enquiries about the marriage laws of other countries should be referred to family operations policy.
The recognition under the law of England or Wales, or Scotland, or Northern Ireland, of any marriage which took place outside the UK is governed by the following three questions:
• Is the type of marriage one recognised in the country in which it took place?
• Was the actual marriage properly executed so as to satisfy the requirements of the law of the country in which it took place?
• Was there anything in the law of either party’s country of domicile that restricted his / her freedom to enter the marriage?
Domicile is a very important concept in English law. It is the place which a person regards as his permanent home and with which he has the closest ties. It contains a dual element of:
1. actual residence in a place; and
2. an intention of remaining there permanently
For more guidance on domicile see SET15 Domicile.
Where one of the parties to a marriage abroad was domiciled in England and Wales at the time of the marriage, and there was a lawful impediment in English law (that is, he / she was under the age of 16; the parties were not respectively male and female; he / she was already lawfully married or a civil partner; the parties were related within the prohibited degrees), the marriage could not be recognised in England and Wales. The same considerations apply in relation to domicile and law in Scotland, and, separately, in Northern Ireland.
If the answers to the above questions are respectively ‘yes’, ‘yes’ and ‘no’ then the marriage will be treated as a marriage for the purpose of the ‘spouse’ paragraphs of the Rules, whether or not it is polygamous (but see separate guidance on dealing with applications from polygamous partners SET14 Polygamous marriages.
Where ECOs have material doubts over the recognition of the marriage in the country in which it took place, and / or over its having been properly executed so as to satisfy the requirements of the law of the country in which it took place, the onus is on the applicant to show that those doubts are misplaced.
>>> Application for UK visa to visit or for short-term stay: form VAF1A: https://www.gov.uk/government/publications/application-for-uk-visa-to-visit-or-for-short-term-stay-form-vaf1a?utm_source=4e707dc7-4ed6-467f-97cc-14f2975ec438&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Form to apply to visit or transit through the UK, for short-term study and parents visiting their child on a Tier 4 (child) visa.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Settled status applications from EU citizens may be processed alphabetically: http://uk.businessinsider.com/exclusive-theresa-may-home-office-settle-status-plan-register-3-million-eu-citizens-alphabetically-2018-8
The EU Settlement Scheme for registering Europeans who want to stay legally in the UK after Brexit will sign people up alphabetically, according to a news report today. “Multiple sources” have told the website Business Insider that
“under a confidential plan being discussed by senior officials, caseworkers would process European applicants in “bite-sized chunks” in alphabetical order based on the first letter of their surname for the final phase of the process”
The Home Office has been saying for some time that the Settlement Scheme will be opened on a “phased basis” between 28 August 2018 (when the first pilot begins) and 30 March 2019 (when the post-Brexit transition period begins, assuming there is a deal at all). It was never 100% clear on what basis the department proposed to stagger the applications. Alphabetically seems as good as any other, frankly, if that is what’s envisaged.
Extensive testing of the scheme makes eminent sense, given that around 3.5 million people will be eligible to apply. The first pilot will involve just 4,000 people from a dozen universities and hospitals in the north west of England. Changes to the Immigration Rules come into force for that purpose on 28 August.
At some point, though — the Home Office says no later than 30 March next year — the scheme will be “fully open” to all EU citizens in the UK. The nightmare scenario for officials is an almighty surge of applications right at the beginning of general operations which overwhelms caseworkers, destroys the advertised “within a few days” timeline for a decision, and damages what confidence exists in the process.
>>> Upper Tribunal refuses asylum to Ukrainian draft evader: http://www.bailii.org/uk/cases/UKUT/IAC/2018/241.html
In PK (Draft evader; punishment; minimum severity) Ukraine [2018] UKUT 241 (IAC) the Upper Tribunal has refused to protect a Ukrainian draft evader despite acknowledging that there is evidence of that taking part in the conflict might involve committing acts of contrary to basic human conduct. The tribunal found that in reality most people were not punished for draft evasion, so there was no real risk of the appellant being punished for his refusal to take part in the fighting.
Surprisingly, the tribunal went on to rule, in apparent conflict with House of Lords and Court of Appeal authority, that even if the appellant were punished it would not be serious enough to amount to persecution. The judgment also considers that there would be no breach of Article 3 of the European Convention on Human Rights from prison conditions in the Ukraine because the appellant would not be imprisoned in the first place.
The official headnote:
“(i) A legal requirement for conscription and a mechanism for the prosecution or punishment of a person refusing to undertake military service is not sufficient to entitle that person to refugee protection if there is no real risk that the person will be subjected to prosecution or punishment.
(ii) A person will only be entitled to refugee protection if there is a real risk that the prosecution or punishment they face for refusing to perform military service in a conflict that may associate them with acts that are contrary to basic rules of human conduct reaches a minimum threshold of severity.
(iii)VB and Another (draft evaders and prison conditions) Ukraine CG [2017] UKUT 79 (IAC) did not consider whether the Ukrainian conflict involved acts contrary to basic rules of human conduct.”
PK is a Ukrainian national who arrived in the UK in 2014, before the current conflict in Ukraine began. The Ukrainian army sent call-up papers to him at his parents’ address in October 2016 and again in February 2017, which led him to claim asylum in March 2017. The Secretary of State refused his claim and his appeal was dismissed by the First-tier Tribunal, which considered that it was bound to do so by applying the VB case cited in the headnote.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Considering human rights claims in visit applications vs appeal prospects: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/424016/considering_hr_claims_from_visitors_guidance_v1_0_ext.pdf
UK BA Guidance on considering human rights claims in visit applications
The Home Office view is that refusal of visit visas will not generally raise human rights issues. It is only where the visit is between a spouse or other life partner or a parent and a minor child that the Home Office considers human rights might be engaged, and even then if visits can be conducted in another country then human rights are supposedly not engaged.
This is only the Home Office view and it is for the tribunal to decide in each case what does and does not amount to a human rights claim, but the guidance is nevertheless instructive as a sort of minimum standard.
In short, where private or family life issues are raised and need to be decided by the Home Office, there is a human rights claim and a right of appeal. Interestingly, Baihinga also suggests that a “bare” or “unsubstantiated” claim is, very arguably, still a claim and may still give rise to a right of appeal. The Home Office’s guidance does not currently reflect this understanding, claiming that a “mere assertion” is insufficient.
The Home Office’s guidance adopts an excessively narrow view of human rights that is not consistent with case law, particularly the cases of Mostafa and Baihinga, so you should not necessarily accept the department’s view. It is not for the Home Office to determine whether you have a right of appeal or not, so if you think you can potentially succeed you can lodge an appeal anyway irrespective of what the Home Office thinks and then try to persuade the tribunal that human rights are engaged and that you have a right of appeal.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance: Tier 2 and 5 sports governing bodies: https://www.gov.uk/government/publications/tier-2-and-5-sports-governing-bodies?utm_source=d0b9f506-a8a6-4a0a-ab5f-58d4de2ca6a5&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Details and contacts for all Tier 2 and 5 sports governing bodies.
Updated list of approved Tier 2 and 5 sports governing bodies.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UK BA “secret” additional pro-forma for the Tier 1(Entrepreneur) migrants who wants to use the UK BA Super Premium Service
While working one of the client’s cases – the Tier 1 (Entrepreneur) extension application via the UK BA Super Premium Service – I have come across the undocumented UK BA pro-forma, which the UK BA is using in order to decide whether this or that Tier 1 (Entrepreneur) migrant is eligible to use the UK BA Super Premium Service. The contents of the pro-forma are as follows:
“Tier 1 Entrepreneur Summary sheet
Representative:
Date:
Please respond to the questions below. This will be used to determine whether your application is suitable for consideration through the Super Premium Team
1) Current Immigration Status:
2) Have you previously been refused as a Tier 1 Entrepreneur? If so please provide grounds for refusal and date refused)
3) Are you self employed or company director?
4) Brief outline of business/prospective business
5) Method of funding (own funds, 3rd party funding) and amount already invested if extending visa?
6) Method of investment (director’s loan, share capital etc)?
7) Relevant business experience and qualifications?
8) Turnover (if any) and profit/loss (if any) for most recent submitted audited/unaudited accounts if extension application. If initial prospective turnover/profit for next 3 years
9) If extension application the number of employees relied upon?
10) Are you able to provide full payment submissions in the ‘coded format accessible from the HMRC gateway website, p60s, and contracts of employment, p11s and pay slips?
11) How is the accountant certified (e.g. ACCA, ICAEW…….)?
………………………………………………………………………
Super Premium Manager:
Approve for SP Team Yes/No”
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Submitting an application for leave to remain or Settlement in the UK vs travel plans – be warned !
Some applicants lodge extension or Settlement applications and then withdraw their passports to travel (leave the UK). This is very dangerous as in line with para 34J of the Rules, such actions are treated as application withdrawal :
“34J. Where a person whose application or claim for leave to remain is being considered requests the return of his passport for the purpose of travel outside the common travel area, the application for leave shall, provided it has not already been demined, be treated as withdrawn on the date that request is received by the Home Office”
>>> Can an (heavily) overstaying spouse of a UK citizen apply for ILR ?
Apparently, the answer is “may be”, yet certain conditions apply. For example, if a foreign wife of a UK citizen was issued with a UK spouse visa (under the old para 287 of the Part 8 of the Rules in force at that time) before the 9th July 2018, then it was not a requirement to have extant leave under the para 287.
So, subject to the paras A277, A280(c)(ii), 288, and including the para 287(a)(vi).
Where A280( c ) states that:
(ii) to applications made by persons in the UK who have been granted entry clearance or limited leave to enter or remain under Part 8 before 9 July 2012 and where this is a requirement of Part 8, this leave to enter or limited leave to remain is extant: …
The above possibility for an overstaying spouse of a UK citizen has been backed up by the Upper Tribunal case on point in which the Upper Tribunal said this at para [27]:
“27. We follow that decision and apply it to paragraph 287, which we find does not require applicants to have leave at the time they make their application. The absence of a requirement for current leave is not a unique feature of paragraph 287 and there is no basis for reading one in. It would have been a simple matter to include such a requirement if that were intended. “
The decision can be downloaded here:
http://www.bailii.org/uk/cases/UKAITUR/2010/IA208252010.html
And naturally, there had to be NO in-between applications for leave to remain under the (newer) Appendix FM Rules, on the basis of the para A280B
“An applicant aged 18 or over may not rely on paragraph A280 where, since their last grant of limited leave to enter or remain under Part 8, they have been granted or refused leave under Appendix FM, Appendix Armed Forces or paragraph 276BE to CE of these rules, or been granted limited leave to enter or remain in a category outside their original route to settlement.”.
>>> When does bad immigration advice affect a human rights appeal ? See https://www.bailii.org/uk/cases/UKUT/IAC/2018/274.html
The case of the Mansur (Immigration adviser’s failings, Article 8) [2018] UKUT 274 (IAC) is may be of interest to some. Mr Mansur was let down by his immigration advisers and by the Home Office. The advisers failed to tell him that a fresh application for leave to remain would be invalid because a separate appeal was pending (Immigration Act 1971, section 3C(4)) or to withdraw that pending appeal when instructed to do so. The Home Office incorrectly informed Mr Mansur that his fresh application was valid and being considered, when in reality it had been invalidated because of the pending appeal. As a result, he ended up without leave for several months and was turned down for indefinite leave to remain which he had applied for on the basis of ten years’ continuous lawful residence.
It is a rather basic knowledge for the adviser, not to mention a lawyer, to know, that an applicant may not lodge a fresh application while the appeal is pending. It turns out that Mr. Mansur was very, very lucky for his appeal to be allowed (won), as usually a poor immigration advice does not exonerate the applicant.
>>> Upper Tribunal: EU law no help to dual nationals who have never exercised free movement rights: https://www.bailii.org/uk/cases/UKUT/IAC/2018/273.html
Kovacevic (British citizen – Art 21 TFEU) Croatia [2018] UKUT 273 (IAC) is about whether EU free movement law protects dual nationals (i.e. someone who is a citizen of the UK and another EU country) who have never exercised their EU free movement rights. The Upper Tribunal ruled that a dual national, who has always relied on their British nationality to reside in the UK, cannot invoke EU law in order to obtain residence rights for their partner.
The head-note:
“(1) A Union citizen who resides in a Member State of which he or she is a national is not a beneficiary under Article 3(1) of the Citizen’s Directive.
(2) A dual Croatian/British citizen who was residing in the United Kingdom when Croatia joined the EU and who has never exercised EU Treaty rights does not acquire a right of residence under Article 21 TFEU.”.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Do not let the UK BA get away with the unjustified refusals!
According to the report here - https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-october-to-december-2017 - the per-centage of immigration decisions being reversed by judges is at its highest on record, new statistics show. Exactly 50% of appeals to the immigration tribunal — mostly challenges to Home Office refusals to allow people to stay in the UK — now succeed.
The UK BA refusal letters’ language may be very intimidating, so it is best to seek professional advice from the firm such as ours, to establish the merits of challenging your appeal. Also remember, that the recently introduced legislation can, in certain circumstances, force the UK Border Agency to reimburse your fees you paid the firm like ours. So all-in-all one can talk about a “free” appeal assistance.
See our earlier posts in relation to the new “fees reimbursement” options through the IAC or just book an online or phone consultation with me, Anton Koval, to discuss your case: https://legalcentre.org/Initial-Consultation.html
>>> EU settlement scheme caseworker guidance: http://legalcentre.org/files/EU_Settlement_Scheme___Caseworker_guidance.pdf
Guidance for caseworkers considering applications under the EU settlement scheme for use during the private pilot has been published recently.
>>> What does the UK BA mean when by “your claim is now academic” ?
It may be the case when a migrant’s Settlement, for example, application, is refused, then the migrant’s Administrative Review is also refused and the migrant then lodged the Judicial Review (JR). At some point the UK BA may come back to the migrant advising to withdraw the JR and also stating that “the (migrant’s) claim is now academic”. So the “claim is now academic” probably means that a decision has been made by the UK BA. In other words, it is highly likely that the migrant’s request has been granted hence the UK BA conceded and there is no need to continue with the JR unless there are other points of law to argue.
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[align=justify]And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923[/align]
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>>> The CJEU judgement in the case of Lunes (Toufic Lunes v Secretary of State for the Home Department (C-165/16) has now been implemented by the UK BA !
[size=small]The Home Office have now implemented the judgment in amendments to the Immigration (EEA) Regulations 2016 which came into force on 24 July 2018. The new Regulation 9A now reflects that dual British/EU citizens can continue to rely on EU law as long as they meet the relevant set of requirements as set out in the amended 2016 Regulations, to facilitate the residence of the non-EU family members and sponsor any applications for a residence documentation, post- naturalization of the EU citizen sponsor.[/size]
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> According to the UK BA response, the Settled status under the UK Immigration Rules cannot be backdated !
Under the current EEA Regulations when an EEA national (and his/her family member) applies for Permanent Residence, the UK BA can usually backdate the application for the Permanent Residence. That means, if an EEA national has provided, with his/her EEA Permanent Residence application sufficient evidence of his/her economic activity in the UK in the last 5+ years, that EEA national’s EEA Permanent Residence application may then be backdated in relation to that EEA national’s DEEMED date that EEA national has acquired his/her Permanent Status in the UK. Such a backdate of the acquisition of the Permanent Residence date may be very helpful as in many cases the Legal Centre’s EEA clients and their non-EEA family members may, in many cases, apply to become British citizens without any delays (usually +12 months).
Now, from the information received from the UK BA, it is clear, that under the EU Settled Scheme there unlikely be any backdates of the EEA nationals’ ILRs. That sadly means, that those EEA nationals, who has not now obtained their Permanent Residence under the currently available EEA regulations, will, in the future, have to wait for the 12 additional months since the grant of their “new” Settled (ILR) status under then the UK Immigration Rules.
Namely, the UK BA is saying the following:
“Settled status (ILR) cannot be back-dated, you only hold it once it is granted by the Home Office. Therefore individuals will need to be resident for a further 12 months free from immigration control before they are eligible to apply for citizenship.
Kind regards,
Settlement Scheme Toolkit Team”
It is still not late to apply for the Permanent Residence status under the currently existing EEA Regulations in order to then promptly apply to become a British citizen, and avoid the minimum 12 months waiting period before a Naturalization application can, otherwise, be made, under the then UK Immigration Law. We are here to help: https://legalcentre.org/Initial-Consultation.html
>>> Fellow church-goers can give “expert evidence” on an asylum seeker’s conversion to Christianity: https://www.bailii.org/scot/cases/ScotCS/2018/[2018]_CSIH_58.html
TF and MA v Secretary of State for the Home Department [2018] CSIH 58 is a recent Court of Session (Inner House) decision which addresses two key themes within the immigration and asylum sphere. Firstly, the extent to which adverse credibility findings against an appellant on the basis of one ground of appeal can be used in the refusal of a separate unrelated ground. Secondly, in cases based on religious persecution, the nature of evidence given by church witnesses, its admissibility and the weight to be attributed to it.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI forms: online application introduced for FLR(DL) and FLR(LR) applications: https://visas-immigration.service.gov.uk/product/flr-lr and https://visas-immigration.service.gov.uk/product/flr-dl
- FLR(DL): Form to apply for an extension of stay or indefinite leave to remain in the UK if you were refused asylum but given another type of permission to stay in the UK.
- FLR(LR): Form to apply to extend your stay in the UK on the basis of long residence.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Forms: Application for UK visa as member of HM Armed Forces: VAF AF: https://www.gov.uk/government/publications/application-for-uk-visa-as-member-of-hm-armed-forces-vaf-af
UKVI have updated the application forms to apply for a UK visa as a current or former member of the armed forces or their family member.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> UKVI Guidance: USA: apply for a UK visa: https://www.gov.uk/government/publications/usa-apply-for-a-uk-visa?utm_source=5dfd5eec-1c08-4d3a-a5af-5475d0bbb9c0&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information about applying for a UK visa in the USA, including applying online, paying fees, additional services, visa application centres, posting application forms and the super priority service.
Change of postal address for applications.
>>> Court of Appeal rules that Paposhvili decision has no effect on Article 8 medical cases: https://www.bailii.org/eu/cases/ECHR/2016/1113.html
The Court of Appeal has ruled that the Strasbourg decision in Paposhvili v Belgium (application no. 41738/10) has no effect on cases where someone relies on Article 8 of the European Convention on Human Rights to claim that they should not be removed from the UK because of a lack of medical treatment in their country of origin. In SL (St Lucia) v Secretary of State for the Home Department [2018] EWCA Civ 1894, the court considered the case of a woman from St Lucia who suffered from mental health problems so serious that she had been unable to give oral evidence in the First-tier Tribunal. Her counsel argued that Paposhvili had made it easier for a medical condition claim to succeed under Article 8.
Earlier this year the same court had held that Paposhvili had led to a “very modest extension” in the scope of Article 3, from cases where the individual is already dying to cases where, after removal, there would be a serious, rapid and irreversible decline in their health leading to death or intense suffering.
In this appeal, Lord Justice Hickinbottom ruled that there had been no corresponding change in the balancing exercise to be conducted under Article 8:
“I am entirely unpersuaded that Paposhvili has any impact on the approach to article 8 claims. As I have described, it concerns the threshold of severity for article 3 claims; and, at least to an extent, as accepted in AM (Zimbabwe), it appears to have altered the European test for such threshold. However, there is no reason in logic or practice why that should affect the threshold for, or otherwise the approach to, article 8 claims in which the relevant individual has a medical condition. As I have indicated and as GS (India) emphasises, article 8 claims have a different focus and are based upon entirely different criteria. In particular, article 8 is not article 3 with merely a lower threshold: it does not provide some sort of safety net where a medical case fails to satisfy the article 3 criteria. An absence of medical treatment in the country of return will not in itself engage article 8. The only relevance to article 8 of such an absence will be where that is an additional factor in the balance with other factors which themselves engage article 8 (see (MM (Zimbabwe) at [23] per Sales LJ).”
It is difficult to dispute this conclusion. In Paposhvili the European Court of Human Rights considered Article 8 and concluded that Belgium would have violated that human right if it had removed Mr Paposhvili — but, crucially, that ruling was based entirely on the court’s view that Belgium had failed to comply with its duty to investigate the likely conditions on return as required by Article 3. There was no discussion before the Grand Chamber about how the Article 8 balancing exercise should work and therefore no ruling for the domestic courts in this country to take account of. This issue awaits further development in the jurisprudence of the Strasbourg court before it becomes a live topic again in domestic courts.
And as usual, the useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre - www.legalcentre.org – Mob : +44(0)7791145923
>>> Migration Advisory Committee recommends changes to the Tier 4 Student visa rules
The MAC’s recommendations are as follows:
1. To retain no cap on the numbers of international students.
2. Government and the sector should continue to work together to grow the number of international students.
3. International students should not be removed from the net migration statistics.
4. Rules of work while studying and dependant rights should remain unchanged.
5. Widening of the window in which applications for switches from Tier 4 to Tier 2 can be made.
6. Post-study leave period extended to six months for Master’s students, though with a more thorough review of whether this is appropriate.
7. The 12 months leave to remain after PhD completion be incorporated into the original visa duration, subject to meeting progress requirements and course completion, for eligibility to remain in the UK after course end date. This would replace the existing Doctoral Extension scheme that allows the same rights but has to be applied for with associated visa costs.
8. Previous Tier 4 students, who passed their Level 6 (or above) qualification in the UK, should be entitled to a two-year period from course completion during which they can apply out-of-country for a Tier 2 visa, under the same rules as current in-country Tier 4 to Tier 2 switches.