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Information for international carriers about visa requirements for passengers travelling to the UK.
>>> The Republic of Ireland announced plans for a new “regularisation scheme” to allow certain undocumented migrants to remain in the country legally: https://www.mrci.ie/2018scheme/
On 4 September the Republic of Ireland announced plans for a new “regularisation scheme” to allow certain undocumented migrants to remain in the country legally. The amnesty will be open to anyone who came to Ireland as an international student between January 2005 and December 2010 and is now undocumented.
Although few details have been released, the announcement was welcomed by rights groups, including the Migrant Rights Centre Ireland. The charity has been campaigning for years for regularisation schemes for the approximately 26,000 adults and children who work, study, live and love in Ireland without papers.
The guidance document to form ROA by which an applicant can apply for a certificate of entitlement proving they have the right to live and work in the UK as been updated.
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>>> UK Government information update: updated information on the rights and status of UK nationals living and travelling in the European Union (EU) if there is no Brexit deal
The Government have published guidance on how to prepare for Brexit if there's no deal. This has today been updated with further technical notices. The updates elevant to ILPA Members are as follows:
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Last week the Court of Justice of the European Union upheld the UK’s approach to the Worker Registration Scheme in force between 2004 and 2011 for citizens of new EU countries. The case is C-618/16 Prefeta v UK. The judgment in effect endorses the Home Office view that time spent working in breach of the registration scheme will not count towards permanent residence.
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The Migration Advisory Committee (MAC) has published its long-awaited research into migration from the EU and how it should be managed after Brexit. The report will disappoint advocates of a fairly liberal regime, recommending as it does that if there is no specific agreement with the EU on migration, there need be no preferential treatment of EU workers over non-EU workers in future. But that does mean that the overall work visa regime would have to be loosened a bit: by abolishing the cap on Tier 2 visas, for example, as well as the requirement to advertise jobs to British citizens before recruiting from abroad. It also takes aim at the bureaucracy of the Points Based System.
If the government does not offer concessions for EU workers as part of the Brexit negotiations and implements the MAC’s recommendations for work migration post-Brexit in 2021, employers will face a number of new, potentially significant, administrative hurdles.
• EU workers who come to the UK once the new immigration system is in force (those in the UK would already have, or be able to apply for, temporary or indefinite leave to remain under the EU Settlement Scheme) will be subject to immigration control. They will require permission to work in the UK, in the same way as their non-EU counterparts currently do. This therefore means that the risk of civil penalties faced by employers will increase significantly overnight. To counter the increased risk, employers will need to ensure that EU nationals, along with their non-EU counterparts, have leave to enter or remain that allows them to work and they will need to also keep a record of visa expiry dates and copies of right to work checks they have performed. This is likely to significantly increase the administrative burden on vast numbers of employers.
• The MAC has also recommended a widening of Tier 2 to include roles at RQF level 3, as opposed to the current RQF level 6 (roughly degree level). This significant widening of the route — the MAC says 142 occupations would become eligible for sponsorship — to include medium skill level roles, combined with the requirement for EU nationals to be sponsored (unless they hold leave in another capacity), will require significant numbers of UK employers to enter the sponsor licence system that have not had to do so before. The MAC has recommended that that system is tweaked but it is unlikely in my view that any such tweaks would significantly reduce the administrative burden on organisations holding a sponsor licence.
These two proposals alone, if implement, are likely to have a significant effect on UK employers that do not currently engage with the immigration system.
The bottom line for EU national is simple as ever – get the Permanent Residence status now and apply to become British to once and forever sour out their immigration issues and, out it simple, forget about the UK BA and the immigration and just live their lives as normal people. The Legal Centre has helped tens of thousands of clients to-date, so we can help you. The help is one click away: www.legalcentre.org
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>>> When might discretion be exercised despite a breach in relation to the Naturalization applications ?
There are some requirements for Naturalization which are set in stone and which cannot be overlooked or waived by Home Office officials even if they are sympathetic. There are other requirements which officials are empowered by the statute to waive. This is referred to as a “discretion”.
Residence not in breach of immigration laws is one such requirement which can be waived.
Officials are instructed by their guidance that discretion should only be exercised where the reasons for the breach “were clearly outside the individual’s control, or if the breach was genuinely inadvertent and short”.
Examples are given in the guidance to officials:
- the breach occurred at a time when the applicant was a minor whose parents failed to ob-tain or renew their leave
- the applicant was a victim of domestic violence whose abusive partner prevented the re-newal of leave
- the applicant had made an ‘in-time’ application, but the application was rejected and so they became in breach
- this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016
- the person had made a late application for leave to remain which was subsequently granted and either the:
- application was not submitted more than 28 days after the expiry of their previous leave and before 24 November 2016
- application was not submitted after more than 28 days overstaying if it was an asylum ap-plication
- person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or be-reavement
- period of overstaying ended on or after 24 November 2016 and leave was granted in ac-cordance with paragraph 39E of the Immigration Rules
- the person arrived the UK clandestinely but either presented themselves without delay to the immigration authorities or was detected by the immigration authorities shortly after arri-val:
- the maximum period involved should normally be 1 month, but may be longer if there are extenuating circumstances
- in these cases you can waive the breach that occurred from entry until the person’s first ap-plication for leave or asylum was determined, provided the application was granted
- an application for asylum or leave to remain was refused but was later acknowledged to be an incorrect decision and the appropriate leave was granted
Discretion will never be exercised by the Home Office where the breach was “both substan-tial and deliberate”. As far as the Home Office is concerned, this includes where a person unsuccessfully attempted to apply for leave to remain in the UK then remained unlawfully, or in cases of unlawful residence leading to a grant of leave under the former 14-year rule or a concession. An exception may be made where the person was granted refugee status as a result. By extension the same approach would probably be applied to periods of unlawful residence ending in regularization under the private life sections of the Immigration Rules.
Example
Ivan entered the UK as a visitor and overstayed. He later applied for leave to remain on the basis of 14 years of long residence and was granted Indefinite Leave to Remain (ILR).
Although Ivan might possess ILR and have resided in the UK for more than five years, none of the residence prior to the grant of ILR will be counted by the Home Office towards his qualifying period for Naturalization. In effect, the “clock” starts from when he was granted ILR.
Ivan faces an additional problem in the shape of the good character test. This excludes someone in Ivan’s position from successfully applying for naturalisation for ten years from the latest breach of immigration law.
The Home Office takes the view that EEA nationals physically present in the UK but who do not have a right of residence under Directive 2004/38 are resident in breach of immigration laws. This is made clear in Home Office policy document European Economic Area (EEA) and Swiss nationals: free movement rights. Page 27 sets out examples of how this approach is considered by the Home Office to work in practice:
This page provides example scenarios on when a European Economic Area (EEA) national is considered in breach of the immigration laws for the purposes of the British Nationality Act 1981 (BNA 1981).
Scenario 1
Paolo, an Italian citizen, came to the UK for employment in 1997. He voluntarily left work on 1 December 2000. No deportation or removal order was made against him, and he has remained without any right of residence under community law [meaning EU law], and with-out leave, ever since. Paolo has been in the UK in breach of the immigration laws only since 7 November 2002, when section 11 of the Nationality, Immigration and Asylum Act 2002 came into force. His residence here between 1 December 2000 and 6 November 2002, alt-hough unauthorised, should not be regarded as a breach.
Scenario 2
Sabine, a French citizen, enrolled as a student in October 1990. Her course ended in June 1993. She then remained in the UK without leave and without any entitlement under com-munity law. No deportation or removal order was made against her. In 1996 she commenced employment, and this has continued to the present day. Sabine should not be treated as hav-ing been in the UK in breach of the immigration laws at any time.
Scenario 3
Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigra-tion laws.
Whether the Home Office approach is correct as a matter of law is questionable. It could be argued that Articles 20 and 21 of the Treaty on the Functioning of the European Union give a right to be physically present in another member state. However, any legal challenge is likely to be stressful and expensive; success can never be guaranteed.
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A British citizen can be deprived of his citizenship if he shows disloyalty to the state, the Court of Appeal has found in the case of Pham v The Secretary of State for the Home Department [2018] EWCA Civ 2064.
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>>> Entry clearance for a child whose parent has limited leave as a parent under appendix FM
If the parent has leave to remain as a parent in the UK, then such a parent requires to prove the adequate maintenance and accommodation for the child, who will be applying for Entry Clearance:
“E-ECC.2.3A. Where a parent of the applicant has, or is applying or has applied for, entry clearance or limited leave to enter or remain as a parent under this Appendix, the applicant must provide evidence that that parent is able to maintain and accommodate themselves, the applicant and any other dependants adequately in the UK without recourse to public funds.
E-ECC.2.4. The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family, including other family members who are not included in the application but who live in the same household, which the family own or occupy exclusively: accommodation will not be regarded as adequate if-
(a) it is, or will be, overcrowded; or
(B) it contravenes public health regulations.”
This requirement contrasts with the parent, who, say, is in the UK as a partner, then such a parent would need to meet the Financial Requirement under the Appendix FM.
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>>> How does the UK BA intends to use the HMRC data in assessing applications made un-der the EU Settlement Scheme ?
The UK BA’s response is as follows:
“The UK has decided, as a matter of domestic policy, that the main requirement for eligibility under the EU Settlement Scheme will be continuous residence in the UK. This means that those applying under the scheme will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights (e.g. the right to work) under EU law.
Where possible, the application process will help the applicant to establish their continuous residence, and whether it amounts to five years, on an automated basis using data held by HM Revenue and Customs (HMRC) and in due course also the Department for Work and Pensions (DWP). The Home Office will only access this data where the applicant volunteers their National Insurance number (NINo). Applicants can choose not to provide their NINo and instead demonstrate their residency using their own documentary evidence if they wish.
Where the applicant provides their NINo, HMRC and DWP will provide data on interactions with the applicant that indicate the period of time that they have been resident in the UK only. The process will not display any personal data that relates to employment, tax, salary, benefits or pensions. The Home Office caseworker and applicant will only be presented with the period of residence covered by the data (the applicant sees this before they submit their application to enable them to add further evidence of their residence for periods not already covered by the data if they wish).
Caseworkers will only be looking for evidence of residence and will not routinely be required to check that any evidence of employment provided by applicants has a matching tax record. And in any case applicants who wish to provide additional evidence of residence are not obliged to provide evidence of employment to do so. However, should clearly fraudulent or criminal activity be identified through the EU Settlement Scheme application process, information may be shared with the relevant authorities.”.
02 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Luxembourg court to be asked if the UK can cancel Brexit
Last week the Scottish Court of Session agreed to make a reference to the Court of Justice of the European Union in Luxembourg to determine whether the UK’s notice that it is leaving the EU under Article 50 can be cancelled.
The case, formally known as Wightman & Others v Secretary of State for Exiting the European Union, has a fairly tortuous procedural history. Initially permission to proceed with the case was refused. This was overturned on appeal. The case proceeded but was refused on its merits by the Outer House (the Scottish equivalent of the High Court). This has now been overturned on appeal to the Inner House (the Scottish equivalent of the Court of Appeal).
03 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Switching from a visitor visa into a partner’s route visa – further insight
Ideally, the Entry Clearance is required, yet there are certain circumstances the applicant may need to lodge an in-country application. Should it be the case, the appendix EX1 is usually relevant. Often the references have to be made, for example, to the Baroness Hale in Chikwamba at the Para 8, and the Chen case at the Para 39. It may also be helpful to further rely upon the case of ZH (Tanzania).
This is a complex and evolving area, so the expert advice, like ours, is needed in most cases.
>>> Can a Tier 2 (ICT) dependent switch in-country into the Tier 2 (General) category ?
Apparently, the answer is “NO”, under the Para 245HD.(b), which clearly prevents such an applicant from switching in-country.
>>> Are you a few days/weeks short for a qualifying time for Settlement ?
If you fall outside the 28 day period, you can apply for an extension and then vary the application when the requirements are met.
05 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> The UK Immigration system (some brave prognosis) after the Brexit
It is just the general view on how the UK immigration system MAY look like after the Brexit:
1) EU free movement will come to an end
2) There will be a level playing field between EU and non-EU workers
3) Highly skilled workers will be prioritised
4) The new immigration system is likely to be just an amended version of the current UK Immigration Rules
5) The Tier 2 cap is likely to be scrapped
6) Access to Tier 2 will be widened for employers and employees
7) No separate visa route for low skilled work
8) The Tier 5 Youth Mobility Scheme will be extended
9) UK nationals will have to apply online before visiting the continent
And…
10) All of the above may be ditched depending on the trade deal offered
>>> You are a non-EEA national with a British spouse in the prison. Is all lost ?
Not necessarily. Although the UK BA tend to INITALLY refuse such applications. If so, the further option is to lodge an appeal (provided the Appellant otherwise satisfies the Rules), relying upon TZ (Pakistan) and PG (India).
>>> Tier 4 Student application – what can be done, if there is “gap” between the course start date (in-country) applications
There may be the case when a student completes one course and his current leave to remain expires BEFORE this new course is about to start say, in a couple of months’ time. The easiest option, is, of course, to leave the UK and re-apply from the applicant’s country of habitual residence.
Yet there are cases when return home of undesirable. In this case and in order to “bridge the gap” the applicant may lodge a human rights application in-country and then, when it will be just 28 days before the start of the new course, vary his/her human rights application for the Tier 4 Student one.
This is a complex area and the legal assistance from the immigration advocates like the Legal Centre (www.legalcentre.org) is strongly advisable
>>> Can a visitor lodge an Entry Clearance application for a different immigration category, while in the UK ?
Apparently, the answer is “No”, in line with the Para 28 of the Immigration Rules:
“An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application”.
>>> Visitor visa refused ? Can one lodge an appeal ?
Yes and No. Usually, there is no right of the appeal upon the refusal of the Visitor Visa application. At the same time, a Judicial Review claim can be lodged to the relevant court which, is successful, may result in the visitor visa being granted.
>>> Settlement applications process in the USA – a major change
Effective from the 10th September 2018.
It should be noted that moving forward, Settlement applications submitted in the USA should still be sent directly to Sheffield, unless the PAC and the Settlement Premium Service is being used ($1900, in addition to the filing fee). The PAC scans and emails to Sheffield when using this service.
To clarify the BCG in NY is no longer processing any applications, they are all being processed in Sheffield or Croydon.
In the case of Pathan & Anor v Secretary of State for the Home Department [2018] EWCA 2103 the Court of Appeal reminds us, once again, of the rigidity and inflexibility of the Points Based System. It is also a good reminder of the purpose and policy behind the Tier 2 visa route.
Briefly, if the UK BA revokes the Tier 2 Sponsorship license, the UK BA may not need to inform the Tier 2 migrants about it AND the Tier 2 migrants may not expect any grace from the UK BA to have (any) chance to find a new Tier 2 sponsor in-country.
06 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
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>>> Is switching from the Tier 2(ICT) into the Tier 2(General) possible without a 12 month cooling off period ?
Apparently, the answer may be “Yes”. If the migrant is earning in excess of the (currently) £159 600 per year, the migrant can leave the UK and apply for the Tier 2(General) and thus avoid the 12 months cooling period.
Note that the para 245HD.( c ) prevents such a migrant from switching in-country. At the same time the para 245HB.( g )(ii) exempts such a migrant from the 12 month cooling period when applying for entry clearance from outside the UK.
>>> Has your immigration application been outstanding for years and years ?
If your immigration application has been outstanding (that is, awaiting a decision by the UK BA) for years, then you may be able at least able to put some pressure upon the UK BA by at least relying upon the case of the Secretary of State for the Home Department v Said [2018] EWCA Civ 627.
09 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Notes on the UK BA pre-Settled and Pre-Settled Status roll-out programme from the recent UK BA meeting – how will the Settled and Pre-Settled process look like
“Roll out – the default position is that there is no personal checking of docs before applying. There is an app which allows you to take a scan of your passport. The app will read the passport’s biometric and pass the data to the UK BA. Other documents (eg evidence of residence) can be photographed or scanned by the applicant and emailed to the UK BA. Generally, only where there is something suspicious, or deficient, about a document, will a caseworker ask the applicant to submit an original by post.
There will be a personal check of docs if the applicant chooses not to use the app – they can send passports to the UK BA to be checked and sent back, or attend a face to face appointment to have their document verified and given back. And of course the UK BA reserves the right to ask for identity documents to be submitted for manual checks even if the applicant has used the app (for example if the chip didn’t read properly).
Applicants opened the web page by first choosing an EEA/other option. There is an option for a British citizen. It is assumed that choosing this option takes you to information for the British Citizen dual national citizens and the British Citizens and advises that you do not need to apply.
First the applicant registers an email, receives an email to activate, continues with the application and creates an account.
Roll out – simply does this more smoothly than was the case in the pilot.
Provide name (title can be problematic – some passports include it with the name, some don’t).
There is a male/female option.
Roll out – non-binary option is under discussion but is unlikely to be included as it does not exist for other forms of ID.
Option for entering relationships (family members don’t need to apply at the same time as the EEA national but it is generally advisable for the EEA national to enter them here).
Drop down box for indicating nationality. This does not include ‘stateless’ (which may be relevant for a family member).
Enter passport details or ID card details (see above re phone app which will auto populate all the personal data (name, DOB, nationality etc) included in the passport’s chip, as well as the passport details.)
Option for ‘any other nationality?’
Photo upload using webcam
Roll out – using mobile camera or upload. There is no requirement for a formal passport photo.
Confirm mobile number and address. Option to send correspondence elsewhere.
Two questions: Do you have permanent residence documentation? And Do you have indefinite leave? Enter reference numbers.
Roll out – these questions will be made clearer as they confuse those EEA nationals who have had nothing to do with any immigration controls. The person must have got evidence of Permanent Residence from the UK BA, not simply have acquired it.
National Insurance Number – record is checked within one minute on upload of the application.
Roll out – Some tax payments, and some benefits, are not proof of residence, so there will be work done to identify those in the NI records.
Convictions of any kind – give details.
Questions on war crimes/genocide etc. as per other application forms. Further info/definitions appear if you hover over the question.
Website then asks for £65 payment if you have not answered ‘yes’ to ‘do you have documented PR/ILR?’
Child fee is £32.50.
Credit card payment – someone else can pay for you if you don’t have a card.
Roll out – other options?
After the payment page, a page tells the applicant whether they are being considered for Settled or pre-Settled status (see below for criteria, meaning etc).
If you’re being considered for pre-settled status and you believe you should be considered for settled status you have the option to provide evidence to support this. If you choose to do so at this stage the next page will tell you which years of residence have a tick for residence accepted, and which do not. You can then upload or send documents to satisfy residence for those years where the NI record is insufficient, or provide evidence of residence for an en-tirely different period if that is easier (the NI look up defaults to searching for the most re-cent residence period). If you agree that you have not been resident for 5 years, then you just accept the pre-settled status. The UK BA wants to discourage discussion at this stage – if, for example, you get pre settled status, you can apply for free to upgrade to settled status, with evidence, at the point where you accumulate your 5 years’ residence. You don’t need to ar-gue about it or send any evidence about it at the initial stage. It’s meant to be simple – 5 years, or no 5 years?
You get the page with the details of the proposed decision and a reference number sent to your email.
If you want a copy of the information you have put on the application, you can download it.
Roll out – you can download it to your device or have it emailed to you.
That is it for the time being.
What happens next?
The application has to be checked by a human. At that stage the caseworker may call for any dubious documents to be sent in or ask for additional evidence, if required.
The caseworker is not looking out for fraud in relation to benefits or tax. If the proof of resi-dence box is ticked, eg. because in that year some NI payments have been made, or some benefits have been paid out, the caseworker does not see the full detail of that (eg employer name, amount of tax, benefit type etc). If there are missing years then the person may need to upload additional evidence, and the caseworker will see that and consider whether it meets the evidence of residence requirement. As per the published guidance, the evidence submitted does not need to be evidence of employment or any ‘permitted activity.’
The default position is that no documents are sent. The exceptions are where there are a very large number of pages which exceed the file upload limit (which they don’t envisage hap-pening as you don’t need much evidence for proving residence in any one year…..); or the caseworker calls for them – see para above.
Obviously the UK BA can’t make a policy statement that they won’t ever refer information to DWP/HMRC to prosecute fraud, but they’re not searching for it at this stage. There is no duty on the HO to pass on discrepancies to other government agencies. The HO does not want to ‘disincentivise’ people from applying.
There will be a security check run, as for all applicants for some form of immigration status. The caseworker will be interested in any discrepancies between security information and declarations on the application form and will ask for more information. The criteria for re-fusal are set out in the draft withdrawal agreement.
The UK BA said that they are not interested in minor offences eg. Driving penalties. Full details have been published elsewhere.
What does pre-settled status mean?
The easy answer is that it is a five year permit for those who cannot already evidence 5 years’ residence in the UK (you choose any period). After 5 years residence the person can apply for settled status. It is an immigration status only.
The statement of intent explains the other rights eg. It is not lost with up to two years’ absence from the UK, and in a footnote on p32: ‘They will continue to have to provide evidence that they meet the relevant eligibility requirements, eg. In any benefit claim or application for social housing, supported housing or homelessness assistance.’
The UK BA stated that there is no existing definition of ‘pre-settled status’ in benefits/housing law. The intention of the Settlement Scheme is to give security to resident EU citizens by regularising their immigration status, not to entitle people to mainstream benefits when they are not already entitled to them. The test for getting pre-settled status is anything from one day’s ‘residence’ in the UK up to 4 years and 364 days. Such a (potentially) short period should not on its own give rise to an entitlement to social benefits. The pre-settled status is just an immigration category. People with it will still have to comply with existing requirements for EEA nationals as to being qualified by exercising Treaty rights and by hav-ing the right to reside. The UK BA confirmed that before the end of the implementation pe-riod in Dec 2020 there will probably need to be legislation which determines what social benefits those with pre-settled status will have, in the period before they become settled and after the end of the implementation period when their (defined) EEA rights fall away.
The UK BA also confirmed that those who do not apply before the end of the grace period ie. June 2021, will have no recognised immigration status afterwards. (Therefore, until that point those who have not registered for pre/settled status will be relying on their existing EEA rights.)
The rights or status of people who enter by Dec 2020 and only register between then and June 2021: the UK BA said that as long as they enter by 23.59 on 31 December 2020 they are covered by the Withdrawal Agreement and can reside lawfully on that basis until 30 June 2021, by which time they must have made an application to the scheme.
What does settled status mean?
Note – this part is explicitly not confirmed by the UK BA policy people because it’s DWP policy: Settled status does have a meaning in benefits/housing law (it is like ILR) but it has not yet been defined in relation to that law in legislation. The intention is that those with set-tled status will be treated like those with ILR, and I understand that that is the case from the date of grant of settled status and has nothing to do with transition etc. Therefore, I under-stand that people with settled status will be subject to the hab res test in benefits law, as Brit-ish citizens are.
EEA nationals with ILR appear to gain an advantage by applying for settled status – it’s free to convert, it’s currently advantageous for family members of EEA nationals, and it’s not lost with up to 5 years’ residence abroad.
Will there be a hard copy document?
The UK BA confirmed that EEA nationals will not get a document. They will be able to print out the email and pdf of the letter confirming that they have pre/settled status but they will not be able to use it as proof of their status. It is an ‘online status’. They can share a log-on to the evidence of their status with an employer, landlord. It is more updatable, more practical.
Cards get lost, damaged, stolen, have room for less information.
The UK BA wishes to move to a ‘no documents’ system, so did not want to begin a card sys-tem for EEA nationals.
Non-EEA nationals will get a card like the existing BRP if they do not already have one.
Meaning of settled status for citizenship?
Settled status is a grant under UK immigration law. For those who get it on registration and did not have ILR or documented permanent residence before, their period free of immigra-tion control will begin on the day of the grant of settled status. The UK BA said nothing about proof of residence for being granted pre/settled status as having any meaning under the BNA, which requires proof of specific periods of residence.
The UK BA added that where someone wishes to demonstrate that they qualify for British citizenship sooner than one year from the grant of settled status they can continue to apply to have their permanent residence documented and that will retrospectively confirm the date they became from free from immigration time restrictions which can then be used to calculate the date that they qualify/qualified for British citizenship.”.
12 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
[size=large]The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.[/size]
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
12 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
[size=large]The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.[/size]
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
12 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
>>> New service from the UK BA beginning in November 2018
From the UK BA email:
“From next month, UK Visas and Immigration is introducing new, streamlined services, allowing customers in the UK to submit all necessary evidence and personal information to support their application quickly and securely through a joined up journey.
The new services will offer a range of benefits to customers, including:
• A streamlined online journey for most application types, with an intuitive easy-to-use form making it easier to apply and the option to purchase additional services for convenience or speed;
• A modernised, digital and more secure process to submit key evidence and personal information, with most customers able to retain their passports and other valuable evidence rather than sending them separately to UKVI;
• Fast and convenient self service with the ability to make applications and upload evidence from home;
• More flexible on-demand, mobile application services, for example at university campuses, employers’ offices or individual customers’ homes;
• Enhanced support for vulnerable customers through a range of financial support for travel costs and mobile services.
UK Visa and Citizenship Application Service
The vast majority of customers will complete their applications via the UK Visa and Citizenship Application Service (UK VCAS), delivered by our commercial partner Sopra Steria. Appointments will be available for free in centres located in 6 major cities; with an additional 50 local user-pay service centres located in libraries; and a user-pay premium service point in central London.
These centres will open around the country from 5th November to early December 2018. During this period, the majority of customers can choose whether to enrol their biometrics and submit their evidence via these new centres or use the existing processes, such as the Post Office.
UKVI Service and Support Centres
For other customers who may be in positions of vulnerability or need more face to face help with their application, free appointments will be offered in 7 dedicated Service and Support Centres (SSCs) from January 2019. This will enable experienced UKVI staff to better understand the customer’s circumstances, validate evidence, and take appropriate action to support them. These customers will continue to use the existing process until January.
Application forms and GOV.UK
Customers will be intuitively led through an online application process, making it clear what they need to do, what supporting evidence they should provide and where they need to go to complete their application.
UKVI’s ambition is to offer a modern, world class customer service to all customers. As such, most visa and immigration services are now available online to customers in the UK via GOV.UK.
Over the next few months the majority of paper forms will be withdrawn and most UK-based customers will need to apply via GOV.UK online.
Support is available to help customers to complete their application online. The Assisted Digital Service aims to ensure that nobody is excluded from making an immigration application due to lack of digital skills or access to a computer. Eligible customers are offered telephone support, or face to face support at a library or their home, to help them access and complete the online form. This service does not provide immigration advice.
We will be in touch later on this month with full details of when every site will open and the process to be followed.
For any questions relating to these new services, please contact FrontEndServicesTeam@homeoffice.gov.uk Premium Sponsors should contact their licence manager.
UKVI and Sopra Steria look forward to working with you to deliver an improved customer service and application process from next month.
12 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> New statement of changes to the Immigration Rules: HC 1534 – An in-depth review of the changes
There is some very welcome news, including more flexibility given to caseworkers on whether and when they can write to applicants to ask for missing documents. (Whether they will in practice or still refuse for minor mistakes is another matter.) In addition, the Home Office will no longer insist on seeing original documents: copies may be provided. So far, all in line with the Secretary of State’s plan to “introduce an immigration system that allows staff greater freedom to use their common sense”.
Except where otherwise indicated, these changes will come into force on 5 November, although the statement of changes does not specify whether it is for applications submitted after 5 November, or decided after 5 November.
Making a valid application, fee waivers and passports
• applicants will no longer need to submit passport-size photographs. This has probably been a redundant requirement for some time, given that applicants are already required to enrol their biometric information, which includes a photograph, as part of their application.
• paper forms can only be used if submitting the application by post. Those who will want to use the Premium Service Centre, or its future equivalent – see https://www.gov.uk/government/news/sopra-steria-has-been-awarded-a-new-ukvi-contract - will need to apply online.
If certain (minor) issues arise during the application process, then:
• where an applicant has not submitted a “valid” application, the Secretary of State may give them an opportunity to rectify the mistake within a specified timescale. It used to be that they could only give 10 working days, but they now have discretion to give more time – or less – it still needs to be confirmed
• the Secretary of State now has discretion to consider an invalid application as valid, provided the specified fee was paid and proof of identity submitted (or, if not submitted, one of the exceptions to submit a proof of identity apply – see paragraph 34(5)). For example, if an applicant were to submit the wrong form, or submit an incomplete form, the Secretary of State could still consider the application as if it had been submitted on the right form.
• the Secretary of State will return an applicant’s ID while the application is outstanding, unless he “considers it necessary to retain it”. This is welcome news. Not having a passport can be problematic: it is needed to give notice of an intention to marry or sit the English language / Life in the UK tests. However, leaving the UK while an application is pending will still result in the application being treated as withdrawn
• those who want to apply for a fee waiver can apply online. They will need to make the fee waiver application first. Once that has been considered and they have received a decision by the Home Office, they will then need to make the application for leave to remain within 10 days. As long as the application for leave to remain is made within those 10 days, the date of the application will be the date of the fee waiver, therefore protecting those who make fee waiver applications on time from becoming overstayers.
These changes will take effect on 1 November, and will apply to applications made on or after that date.
More flexibility and copies of documents
Changes to part 6A of the Rules, relating to Point Based System migrants, also offer more flexibility. For example, officials can decide to:
• request an applicant to submit specified evidence which they have left out entirely. As the Rules are currently drafted, they could only do so if “some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided”.
• request more evidence as many times as they wish (the Rules currently specify that a request for documents will only be made once)
• grant an application even if a specified document is omitted or submitted in the wrong format, if the missing information is verifiable from other documents provided in the application or elsewhere.
Documents will not be requested when even if they were provided, the application would still fall to be refused.
These are the good news for the applicants who are worried about having missed any one document in circumstances where it is clear from the rest of the application that the Rules are met. Of course, caseworkers are not obliged to request missing documents (the Rules say “may”, not “must”), but it is hoped discretion will be used whenever applications would otherwise clearly meet the rules.
Another positive development is being able to submit copies of documents rather than originals. These changes are made throughout the Rules, where all references to “original” (as far as it can be seen now) were deleted and/or replaced with “copies”. This can save applicants money and administrative nightmares.
The Legal Centre has been pioneering this approach for over a decade, long before the UK BA decided to “repeat” the firm’s experience. For example, the Legal Centre’s client and the sponsor (spouse) can simply upload their documents into a shared Dropbox folder, and the application can be printed out by either one to submit to the relevant body (the Visa Application Centre in the applicant’s country or Sheffield (for the Settlement applications in certain countries).
EU Settlement Scheme
Changes to the EU Settlement Scheme include:
• changes to reflect the second trial phase of the scheme, which will run from 1 November to 21 December 2018. Details of who will be eligible to apply during this second phase are at pages three to six of the statement of changes and summarised here: https://homeofficemedia.blog.gov.uk/2018/10/11/fact-sheet-eu-settlement-scheme-phase-2/ They include staff in the higher education, health and social sectors across the UK, and “vulnerable individuals” supported by specific local authorities and community groups.
• the introduction of a right to administrative review. This will be available to those whose settled status application is refused on the basis that they do not meet the eligibility requirement and those who are granted limited (pre-settled) rather than indefinite (settled) leave to remain. Those refused on the basis of suitability or those whose application is rejected as invalid will not have a right to administrative review. They are better than typical administrative reviews:
o the application can be made from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending
o the deadline to apply is 28 days after receipt of the refusal (normally the deadline is 14 days for people applying from inside the UK, and 28 if they are applying from abroad)
o the reviewer can take into consideration documents submitted in support of the administrative review which were not available to the decision-maker at the time of the decision (this can only be done in rare circumstances for other administrative reviews) and can even take themselves the initiative to request further documents to an applicant
• amendments are made to align the rights of “Surinder Singh” family members to the family members of EU citizens.
These changes come into place on 1 November.
Other changes
The list of subjects which require an Academic Technology Approval Scheme certificate is updated. The majority of the changes seem to reflect a technical change of name by the Higher Education Statistics Authority rather than a change in the subjects. These changes will take effect on 1 January 2019 for decisions made on or after that date.
a. the applicant’s GP or a GP based in the practice with which the applicant is normally registered; or
b. a General Medical Council (GMC) registered consultant
This doctor must have “met with the applicant in person, assessed their ability to fulfill the requirements set out in this appendix, and supports their request for an exception from either or both elements of KOLL on the basis that they have a condition which would prevent them from satisfying the requirements for the foreseeable future”.
16 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> A successful Judicial Review may, unfortunately, break down the continued residence
This is because a judicial review does not extend the leave under the Section 3C. The UK BA may, therefore, consider the applicant’s continuous lawful residence under Long Residence as broken.
>>> Losing a Tier 2 sponsorship while applying for ILR
If one applies for ILR on the basis of competing a 5 year employment period and then the current employer withdraws/loses the Certificate of Sponsorship, any new employer of that Tier 2 migrant will need to apply for a new certificate of sponsorship on the basis of para 14 of the court of appeal judgement in QI ( PAKISTAN ): https://www.bailii.org/ew/cases/EWCA/Civ/2011/614.html
17 October 2018 – Just useful and just interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
In SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC), the Upper Tribunal examines the various pieces of law relevant to deciding whether someone who has a child in the UK should be allowed to stay here.
The case is helpful for two reasons:
1. The Home Office’s approach to section 117B(6) in its new guidance, published in February 2018 and discussed on this blog by Nath shortly afterwards, is firmly rejected
2. The tribunal provides a useful summary of the law on evaluating the parent/child relationship
The official headnote:
1. If a parent (‘P’) is unable to demonstrate he / she has been taking an active role in a child’s upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, P may still be able to demonstrate a genuine and subsisting parental relationship with a qualifying child for the purposes of section 117B(6) of the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’). The determination of both matters turns on the particular facts of the case.
2. The question of whether it would not be reasonable to expect a child to leave the United Kingdom (‘UK’) in section 117B(6) of the 2002 Act does not necessarily require a consideration of whether the child will in fact or practice leave the UK. Rather, it poses a straightforward question: would it be reasonable “to expect” the child to leave the UK?
The Home Office has published a new policy document entitled Inadmissibility: EU grants of asylum, first country of asylum and safe third country concepts, all about non-Dublin third country cases. It covers Immigration Rules 345A-D on asylum claims where the claimant has:
1. Already been granted protection in another EU country (rule 345A)
2. Already been granted protection in a non-EU country which is considered safe (rule 345B)
3. A “sufficient degree of connection” to a non-EU safe country to be removed there (rule 345C and 345D)
There are few if any such cases really, so the time spent writing the policy was no doubt time “well” spent.
In ES (s82 NIA 2002, Negative NRM) [2018] UKUT 335 (IAC) a victim of trafficking from Albania had been assessed by the Home Office not to be a victim of trafficking under the National Referral Mechanism. Previous cases have held that the tribunal is effectively fixed with the NRM trafficking decision. Not so, finds Judge Nadine Finch.
Not only does Judge Finch distinguish earlier Court of Appeal authority but she also disagrees with the earlier determination of Judge Gill in AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC), commenting that the relevant finding was obiter and not part of the official headnote.
The official headnote to ES:
1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.
Also, some interesting discussion in the determination of assessing vulnerability of a witness and then how to deal with that witness’s evidence. Good to see a realistic and humane approach being adopted by the UK BA Presenting Officer.
18 October 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 336 (IAC) is a rare example of a case where permission to appeal to the Upper Tribunal was only granted by a High Court judge after a Cart judicial review of the Upper Tribunal. To put it another way, the Upper Tribunal did not think there was merit in the case but was forced to hear it anyway by a High Court judge.
The head-note:
(1) The fact that an application for permission to appeal involves the assertion that a per-son’s removal from the United Kingdom would violate his or her human rights does not, without more, engage that part of the second appeal criteria, which allows permission to appeal (or permission for a ‘Cart’ judicial review) to be granted, on the basis that removal constitutes a ‘compelling reason’ for the appeal to be heard. If the position were otherwise, the second appeal criteria would lose their function as a restriction on the power to grant per-mission to appeal in immigration cases.
(2) Before concluding that submissions regarding the positive contribution made by an individual fall to be taken into account, for the purposes of Article 8(2) of the ECHR, as diminishing the importance to be given to immigration controls, a judge must be satisfied that the contribution is very significant. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement. One touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
(3) The fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family.
(4) If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be significantly damaged.”
20 October 2018 – Just useful and interesting UK & EEA Immigration Law news and up-dates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Is completion of a 10 year lawful residence route possible with a visitor visa ?
Technically, yes, that is possible. However, visitors applying for ILR or another category may be refused under 322(7) because of V 4.2 (a) & (c), unless there was a strong change of circumstances.
In AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234, the Court of Appeal has in effect rebuffed an attempt by the UN High Commissioner for Refugees to make it easier to establish statelessness. The court ruled that the standard of proof for determining a statelessness application is the normal civil standard, i.e. the balance of probabilities.
The appellant had argued that the “real risk” standard of proof, which is used for determining refugee status, should be applied. That lower standard is recommended by the UNHCR in a 2014 handbook on how to apply the 1954 Statelessness Convention. Instead, the Court of Appeal chose to follow a line of domestic authority supporting the use of the ordinary civil standard and noted that, of the states which are party to the Convention, only six use a standard of proof below the balance of probabilities.
An important decision by the UK High Court that demonstrates that possession of a British passport is precarious. Having a passport is a privilege, not a right, and the Home Secretary can exercise his power under the royal prerogative to cancel a passport if he thinks it is in the public interest.
>>> UKVI form triple update: Application for a replacement biometric residence permit: BRP(RC); Application to transfer indefinite leave to remain in UK: NTL; Application to transfer visa to biometric residence permit: TOC
22 October 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
The Judicial Appointments Commission is advertising for 41 new salaried judges to fill vacancies in the immigration and asylum chamber of the First-tier Tribunal. The salary is an attractive £108,171 (slightly more in London).
The scale of this recruitment drive is unprecedented in recent times. The last set of salaried appointments in January 2018 saw 11 judges appointed, with a handful more confirmed the following month.
These piecemeal additions have obviously been insufficient to address a growing shortage. In 2005 there were 152 salaried judges sitting in the tribunal’s immigration and asylum chamber, according to its President, Michael Clements. By last year, that was down to just 57. A report by Justice earlier this year found that “morale among First-tier Tribunal (Immigration and Asylum Chamber) judges is not as it should be”.
So says the Upper Tribunal in PA (Protection claim, Respondent’s enquiries, Bias) [2018] UKUT 337 (IAC); at least if your confidentiality is preserved.
Officials checked Bangladeshi police records for evidence of persecution PA, a Bangladeshi national, claimed asylum in April 2016 on the basis that he was an active member of the Bangladesh National Party. He had entered the UK in 2012 and was placed on reporting conditions in January 2013; the reason for the late asylum claim is not explained. In support of his claim the appellant had provided First Information Reports (FIRs) and charge sheets, issued by the police in Sylhet at the behest of his political opponents.
With a zeal that is not seen in countries where false documents are not so readily available, the Home Office conducted a document verification exercise and produced a report. A member of staff from the British High Commission visited the police station and asked to verify the FIRs and the charge sheets. In a move that seems strange to us in the age of GPDR, the officer in charge looked in the register and after not locating the documents relating to PA happily allowed the High Commission official to have a look through the records himself. The official could not locate the original documents either.
The Home Office unsurprisingly found the documents to be false and refused the applicant’s claim for asylum. The First-tier Tribunal agreed.
The Upper Tribunal granted permission to appeal on three grounds. It may be worth reading the whole determinate to appreciate the scope of the Home Office’s “zeal” in certain cases.
The official headnote:
1. Respondent’s inquiries in country of origin of applicant for international protection
(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC) is not to be read as holding to the contrary.
(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.
(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.
2. Allegations of judicial bias
(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.
(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant’s counsel than for the respondent’s presenting officer has no bearing on whether the judge was biased against the appellant.
(3) It is wholly inappropriate for an official interpreter to have his or her private conversations with an appellant put forward as evidence.
(4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.
(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge’s decision.
(6) Allegations relating to what occurred at a hearing would be resolved far more easily if hearings in the First-tier Tribunal were officially recorded.
23 October 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
Information and guidance on handling visa applications made outside the UK.
Added information about the time limit for raising errors. Removed information about the address to send passports to, the information is no longer valid.
26 October 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
The UK BA Premium Service Centres will close from 30 Nov 2018 so there will be no more same day service appointments the way they were operating before. The new service will be introduced from the 1st November 2018. The services will also include the checking document service for the applicant.
Three different options are being introduced:
1. Standard service – 8 weeks
2. Premium service – 10 working day
3. Super premium service – 24 hours
>>> Tier 4 Students, beware – the danger of travelling after your final exam !
The UK Immigration Officer at the port of entry can revoke your existing Tier 4 BRP card/visa if you travel outside of the UK following a completion of your course.
To avoid this situation the one would be better of extending the current leave (visa) or switching into a different immigration category BEFORE travelling and returning to the UK upon completion of the educational course.
>>> The adequate maintenance requirement in the Immigration Rules
The Supreme Court has recently handed down judgment in four linked cases all concerning the best interests of children who themselves face removal from the UK or whose parent faces removal from the UK. The case is likely to be referred to as KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53.
The cases concern the new scheme of prescriptive immigration rules introduced by Theresa May as Home Secretary in 2012, bolstered by statutory reinforcement in the Immigration Act 2014. These provisions were intended to reduce judicial discretion. The reality has been a mess of conflicting and confusing decisions.
26 October 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Do you owe more than £500 to the NHS ?
If so, then your visa may be refused or even revoked on entry to the UK, under the para 320(22):
“320(22) where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £500 in accordance with the relevant NHS regulations on charges to overseas visitors.”
Those who have “regularized” their status in-country and were issued with the 2.5 year BRP
>>> Is there a limit on how many times the applicant can vary (change the type) of his outstanding application ?
The answer is “No”.
At the same time one should note that it may not be possible to vary an application at the UK BA Premium Service Centres.
29 October 2018 – Just useful and interesting UK & EEA Immigration Law news and updates from the Legal Centre – Open 7 days a week - www.legalcentre.org – Mob : +44(0)7791145923
>>> Can one make a new spouse (out of country application) whilst they have an appeal pending (in respect of the refusal of an earlier spouse visa – out of country as well) ?
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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
>>> UKVI guidance update: updated guidance on form AN (applying for British citizenship by naturalisation): https://www.gov.uk/government/publications/application-to-naturalise-as-a-british-citizen-form-an?utm_source=0a1c58a9-3e7c-484a-842a-454ee2350b8c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
UKVI has published an updated version of 'Naturalisation as a British citizen - a guide for applicants (guide AN)'.
>>> UK visa requirements - list for carriers : https://www.gov.uk/government/publications/uk-visa-requirements-list-for-carriers?utm_source=fcb28d8c-5b15-4105-9c1e-1497c2ab0799&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information for international carriers about visa requirements for passengers travelling to the UK.
>>> The Republic of Ireland announced plans for a new “regularisation scheme” to allow certain undocumented migrants to remain in the country legally: https://www.mrci.ie/2018scheme/
On 4 September the Republic of Ireland announced plans for a new “regularisation scheme” to allow certain undocumented migrants to remain in the country legally. The amnesty will be open to anyone who came to Ireland as an international student between January 2005 and December 2010 and is now undocumented.
Although few details have been released, the announcement was welcomed by rights groups, including the Migrant Rights Centre Ireland. The charity has been campaigning for years for regularisation schemes for the approximately 26,000 adults and children who work, study, live and love in Ireland without papers.
>>> UKVI Guidance: guidance document to form ROA updated : https://www.gov.uk/government/publications/application-for-certificate-showing-right-of-abode
The guidance document to form ROA by which an applicant can apply for a certificate of entitlement proving they have the right to live and work in the UK as been updated.
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 Government information update: updated information on the rights and status of UK nationals living and travelling in the European Union (EU) if there is no Brexit deal
The Government have published guidance on how to prepare for Brexit if there's no deal. This has today been updated with further technical notices. The updates elevant to ILPA Members are as follows:
1. Erasmus+ in the UK if there’s no Brexit deal: https://www.gov.uk/government/publications/erasmus-in-the-uk-if-theres-no-brexit-deal/erasmus-in-the-uk-if-theres-no-brexit-deal
2. Travelling within the Common Travel Area and the associated rights of British and Irish citizens if there is no Brexit deal: https://www.gov.uk/government/publications/travelling-in-the-common-travel-area-if-theres-no-brexit-deal/travelling-within-the-common-travel-area-and-the-associated-rights-of-british-and-irish-citizens-if-there-is-no-brexit-deal
3. Travelling to the EU with a UK passport if there’s no Brexit deal: https://www.gov.uk/government/publications/travelling-to-the-eu-with-a-uk-passport-if-theres-no-brexit-deal/travelling-to-the-eu-with-a-uk-passport-if-theres-no-brexit-deal
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 Immigration and Nationality fees table for all applications made from outside and within the UK has been updated with effect from 8 October 2018: https://www.gov.uk/government/publications/visa-regulations-revised-table?utm_source=c91c0331-545f-42f3-bd56-b701fd8672a3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The good news is that there is NO change in the UK BA fees !
>>> The guidance on applying for a UK visa from Australia has been updated throughout: https://www.gov.uk/government/publications/australia-apply-for-a-uk-visa/apply-for-a-uk-visa-in-australia
>>> The guidance on applying for a UK visa from New Zealand has been updated throughout: https://www.gov.uk/government/publications/new-zealand-apply-for-a-uk-visa/apply-for-a-uk-visa-in-new-zealand
>>> Court of Justice upholds UK approach to Worker Registration Scheme for EU nationals: http://curia.europa.eu/juris/document/document.jsf?text=&docid=205672&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=714440
Last week the Court of Justice of the European Union upheld the UK’s approach to the Worker Registration Scheme in force between 2004 and 2011 for citizens of new EU countries. The case is C-618/16 Prefeta v UK. The judgment in effect endorses the Home Office view that time spent working in breach of the registration scheme will not count towards permanent 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
>>> Migration Advisory Committee (MAC) report: EEA migration: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-eea-migration
MAC report on the impact of EEA migration 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
>>> Migration Advisory Committee: scrap the cap on Tier 2 work visas after Brexit: https://www.gov.uk/government/publications/migration-advisory-committee-mac-report-eea-migration
The Migration Advisory Committee (MAC) has published its long-awaited research into migration from the EU and how it should be managed after Brexit. The report will disappoint advocates of a fairly liberal regime, recommending as it does that if there is no specific agreement with the EU on migration, there need be no preferential treatment of EU workers over non-EU workers in future. But that does mean that the overall work visa regime would have to be loosened a bit: by abolishing the cap on Tier 2 visas, for example, as well as the requirement to advertise jobs to British citizens before recruiting from abroad. It also takes aim at the bureaucracy of the Points Based System.
If the government does not offer concessions for EU workers as part of the Brexit negotiations and implements the MAC’s recommendations for work migration post-Brexit in 2021, employers will face a number of new, potentially significant, administrative hurdles.
• EU workers who come to the UK once the new immigration system is in force (those in the UK would already have, or be able to apply for, temporary or indefinite leave to remain under the EU Settlement Scheme) will be subject to immigration control. They will require permission to work in the UK, in the same way as their non-EU counterparts currently do. This therefore means that the risk of civil penalties faced by employers will increase significantly overnight. To counter the increased risk, employers will need to ensure that EU nationals, along with their non-EU counterparts, have leave to enter or remain that allows them to work and they will need to also keep a record of visa expiry dates and copies of right to work checks they have performed. This is likely to significantly increase the administrative burden on vast numbers of employers.
• The MAC has also recommended a widening of Tier 2 to include roles at RQF level 3, as opposed to the current RQF level 6 (roughly degree level). This significant widening of the route — the MAC says 142 occupations would become eligible for sponsorship — to include medium skill level roles, combined with the requirement for EU nationals to be sponsored (unless they hold leave in another capacity), will require significant numbers of UK employers to enter the sponsor licence system that have not had to do so before. The MAC has recommended that that system is tweaked but it is unlikely in my view that any such tweaks would significantly reduce the administrative burden on organisations holding a sponsor licence.
These two proposals alone, if implement, are likely to have a significant effect on UK employers that do not currently engage with the immigration system.
The bottom line for EU national is simple as ever – get the Permanent Residence status now and apply to become British to once and forever sour out their immigration issues and, out it simple, forget about the UK BA and the immigration and just live their lives as normal people. The Legal Centre has helped tens of thousands of clients to-date, so we can help you. The help is one click away: www.legalcentre.org
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
>>> Illegal working civil penalties: an employer's guide : https://www.gov.uk/government/publications/illegal-working-fines-employers-guide?utm_source=2a435823-4657-4d6d-8b50-362bbec6d497&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A guide to the civil penalty scheme for employers who give a job to an illegal worker.
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 UK Government can and does exercise far greater control over immigration than is commonly perceived: http://www.smf.co.uk/publications/take-back-control/?doing_wp_cron=1537799410.9408040046691894531250
All the evidence actually points to the fact that overall the UK exercises extremely effective control over immigration.
Now talk about the Brexit lies on "immigration being out of control"...
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
>>> When might discretion be exercised despite a breach in relation to the Naturalization applications ?
There are some requirements for Naturalization which are set in stone and which cannot be overlooked or waived by Home Office officials even if they are sympathetic. There are other requirements which officials are empowered by the statute to waive. This is referred to as a “discretion”.
Residence not in breach of immigration laws is one such requirement which can be waived.
Officials are instructed by their guidance that discretion should only be exercised where the reasons for the breach “were clearly outside the individual’s control, or if the breach was genuinely inadvertent and short”.
Examples are given in the guidance to officials:
- the breach occurred at a time when the applicant was a minor whose parents failed to ob-tain or renew their leave
- the applicant was a victim of domestic violence whose abusive partner prevented the re-newal of leave
- the applicant had made an ‘in-time’ application, but the application was rejected and so they became in breach
- this is provided there is no reason to doubt that the form was submitted in good faith and a fresh application was submitted within 28 days of the rejection and before 24 November 2016
- the person had made a late application for leave to remain which was subsequently granted and either the:
- application was not submitted more than 28 days after the expiry of their previous leave and before 24 November 2016
- application was not submitted after more than 28 days overstaying if it was an asylum ap-plication
- person had a period of more than 28 days between their leave expiring and them making a new application and there were exceptional circumstances such as a family illness or be-reavement
- period of overstaying ended on or after 24 November 2016 and leave was granted in ac-cordance with paragraph 39E of the Immigration Rules
- the person arrived the UK clandestinely but either presented themselves without delay to the immigration authorities or was detected by the immigration authorities shortly after arri-val:
- the maximum period involved should normally be 1 month, but may be longer if there are extenuating circumstances
- in these cases you can waive the breach that occurred from entry until the person’s first ap-plication for leave or asylum was determined, provided the application was granted
- an application for asylum or leave to remain was refused but was later acknowledged to be an incorrect decision and the appropriate leave was granted
Discretion will never be exercised by the Home Office where the breach was “both substan-tial and deliberate”. As far as the Home Office is concerned, this includes where a person unsuccessfully attempted to apply for leave to remain in the UK then remained unlawfully, or in cases of unlawful residence leading to a grant of leave under the former 14-year rule or a concession. An exception may be made where the person was granted refugee status as a result. By extension the same approach would probably be applied to periods of unlawful residence ending in regularization under the private life sections of the Immigration Rules.
Example
Ivan entered the UK as a visitor and overstayed. He later applied for leave to remain on the basis of 14 years of long residence and was granted Indefinite Leave to Remain (ILR).
Although Ivan might possess ILR and have resided in the UK for more than five years, none of the residence prior to the grant of ILR will be counted by the Home Office towards his qualifying period for Naturalization. In effect, the “clock” starts from when he was granted ILR.
Ivan faces an additional problem in the shape of the good character test. This excludes someone in Ivan’s position from successfully applying for naturalisation for ten years from the latest breach of immigration law.
The Home Office takes the view that EEA nationals physically present in the UK but who do not have a right of residence under Directive 2004/38 are resident in breach of immigration laws. This is made clear in Home Office policy document European Economic Area (EEA) and Swiss nationals: free movement rights. Page 27 sets out examples of how this approach is considered by the Home Office to work in practice:
This page provides example scenarios on when a European Economic Area (EEA) national is considered in breach of the immigration laws for the purposes of the British Nationality Act 1981 (BNA 1981).
Scenario 1
Paolo, an Italian citizen, came to the UK for employment in 1997. He voluntarily left work on 1 December 2000. No deportation or removal order was made against him, and he has remained without any right of residence under community law [meaning EU law], and with-out leave, ever since. Paolo has been in the UK in breach of the immigration laws only since 7 November 2002, when section 11 of the Nationality, Immigration and Asylum Act 2002 came into force. His residence here between 1 December 2000 and 6 November 2002, alt-hough unauthorised, should not be regarded as a breach.
Scenario 2
Sabine, a French citizen, enrolled as a student in October 1990. Her course ended in June 1993. She then remained in the UK without leave and without any entitlement under com-munity law. No deportation or removal order was made against her. In 1996 she commenced employment, and this has continued to the present day. Sabine should not be treated as hav-ing been in the UK in breach of the immigration laws at any time.
Scenario 3
Colette, a Belgian citizen, came to the UK for a holiday in August 2003 but then remained without permission or entitlement under community law. Any residence in the UK after her entitlement under community law came to an end was residence in breach of the immigra-tion laws.
Whether the Home Office approach is correct as a matter of law is questionable. It could be argued that Articles 20 and 21 of the Treaty on the Functioning of the European Union give a right to be physically present in another member state. However, any legal challenge is likely to be stressful and expensive; success can never be guaranteed.
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
>>> Deprivation of citizenship justified by treasonous conduct finds Court of Appeal: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2064.html
A British citizen can be deprived of his citizenship if he shows disloyalty to the state, the Court of Appeal has found in the case of Pham v The Secretary of State for the Home Department [2018] EWCA Civ 2064.
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
>>> Entry clearance for a child whose parent has limited leave as a parent under appendix FM
If the parent has leave to remain as a parent in the UK, then such a parent requires to prove the adequate maintenance and accommodation for the child, who will be applying for Entry Clearance:
“E-ECC.2.3A. Where a parent of the applicant has, or is applying or has applied for, entry clearance or limited leave to enter or remain as a parent under this Appendix, the applicant must provide evidence that that parent is able to maintain and accommodate themselves, the applicant and any other dependants adequately in the UK without recourse to public funds.
E-ECC.2.4. The applicant must provide evidence that there will be adequate accommodation, without recourse to public funds, for the family, including other family members who are not included in the application but who live in the same household, which the family own or occupy exclusively: accommodation will not be regarded as adequate if-
(a) it is, or will be, overcrowded; or
(B) it contravenes public health regulations.”
This requirement contrasts with the parent, who, say, is in the UK as a partner, then such a parent would need to meet the Financial Requirement under the Appendix FM.
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
>>> How does the UK BA intends to use the HMRC data in assessing applications made un-der the EU Settlement Scheme ?
The UK BA’s response is as follows:
“The UK has decided, as a matter of domestic policy, that the main requirement for eligibility under the EU Settlement Scheme will be continuous residence in the UK. This means that those applying under the scheme will not be required to show that they meet all the requirements of current free movement rules, such as any requirement to have held comprehensive sickness insurance or generally to detail the exercise of specific rights (e.g. the right to work) under EU law.
Where possible, the application process will help the applicant to establish their continuous residence, and whether it amounts to five years, on an automated basis using data held by HM Revenue and Customs (HMRC) and in due course also the Department for Work and Pensions (DWP). The Home Office will only access this data where the applicant volunteers their National Insurance number (NINo). Applicants can choose not to provide their NINo and instead demonstrate their residency using their own documentary evidence if they wish.
Where the applicant provides their NINo, HMRC and DWP will provide data on interactions with the applicant that indicate the period of time that they have been resident in the UK only. The process will not display any personal data that relates to employment, tax, salary, benefits or pensions. The Home Office caseworker and applicant will only be presented with the period of residence covered by the data (the applicant sees this before they submit their application to enable them to add further evidence of their residence for periods not already covered by the data if they wish).
Caseworkers will only be looking for evidence of residence and will not routinely be required to check that any evidence of employment provided by applicants has a matching tax record. And in any case applicants who wish to provide additional evidence of residence are not obliged to provide evidence of employment to do so. However, should clearly fraudulent or criminal activity be identified through the EU Settlement Scheme application process, information may be shared with the relevant authorities.”.
>>> Luxembourg court to be asked if the UK can cancel Brexit
Last week the Scottish Court of Session agreed to make a reference to the Court of Justice of the European Union in Luxembourg to determine whether the UK’s notice that it is leaving the EU under Article 50 can be cancelled.
The case, formally known as Wightman & Others v Secretary of State for Exiting the European Union, has a fairly tortuous procedural history. Initially permission to proceed with the case was refused. This was overturned on appeal. The case proceeded but was refused on its merits by the Outer House (the Scottish equivalent of the High Court). This has now been overturned on appeal to the Inner House (the Scottish equivalent of the Court of Appeal).
>>> Switching from a visitor visa into a partner’s route visa – further insight
Ideally, the Entry Clearance is required, yet there are certain circumstances the applicant may need to lodge an in-country application. Should it be the case, the appendix EX1 is usually relevant. Often the references have to be made, for example, to the Baroness Hale in Chikwamba at the Para 8, and the Chen case at the Para 39. It may also be helpful to further rely upon the case of ZH (Tanzania).
This is a complex and evolving area, so the expert advice, like ours, is needed in most cases.
>>> Can a Tier 2 (ICT) dependent switch in-country into the Tier 2 (General) category ?
Apparently, the answer is “NO”, under the Para 245HD.(b), which clearly prevents such an applicant from switching in-country.
>>> Are you a few days/weeks short for a qualifying time for Settlement ?
If you fall outside the 28 day period, you can apply for an extension and then vary the application when the requirements are met.
>>> The UK Immigration system (some brave prognosis) after the Brexit
It is just the general view on how the UK immigration system MAY look like after the Brexit:
1) EU free movement will come to an end
2) There will be a level playing field between EU and non-EU workers
3) Highly skilled workers will be prioritised
4) The new immigration system is likely to be just an amended version of the current UK Immigration Rules
5) The Tier 2 cap is likely to be scrapped
6) Access to Tier 2 will be widened for employers and employees
7) No separate visa route for low skilled work
8) The Tier 5 Youth Mobility Scheme will be extended
9) UK nationals will have to apply online before visiting the continent
And…
10) All of the above may be ditched depending on the trade deal offered
>>> You are a non-EEA national with a British spouse in the prison. Is all lost ?
Not necessarily. Although the UK BA tend to INITALLY refuse such applications. If so, the further option is to lodge an appeal (provided the Appellant otherwise satisfies the Rules), relying upon TZ (Pakistan) and PG (India).
>>> Tier 4 Student application – what can be done, if there is “gap” between the course start date (in-country) applications
There may be the case when a student completes one course and his current leave to remain expires BEFORE this new course is about to start say, in a couple of months’ time. The easiest option, is, of course, to leave the UK and re-apply from the applicant’s country of habitual residence.
Yet there are cases when return home of undesirable. In this case and in order to “bridge the gap” the applicant may lodge a human rights application in-country and then, when it will be just 28 days before the start of the new course, vary his/her human rights application for the Tier 4 Student one.
This is a complex area and the legal assistance from the immigration advocates like the Legal Centre (www.legalcentre.org) is strongly advisable
>>> Can a visitor lodge an Entry Clearance application for a different immigration category, while in the UK ?
Apparently, the answer is “No”, in line with the Para 28 of the Immigration Rules:
“An applicant for an entry clearance must be outside the United Kingdom and Islands at the time of the application”.
>>> Visitor visa refused ? Can one lodge an appeal ?
Yes and No. Usually, there is no right of the appeal upon the refusal of the Visitor Visa application. At the same time, a Judicial Review claim can be lodged to the relevant court which, is successful, may result in the visitor visa being granted.
>>> Settlement applications process in the USA – a major change
Effective from the 10th September 2018.
It should be noted that moving forward, Settlement applications submitted in the USA should still be sent directly to Sheffield, unless the PAC and the Settlement Premium Service is being used ($1900, in addition to the filing fee). The PAC scans and emails to Sheffield when using this service.
To clarify the BCG in NY is no longer processing any applications, they are all being processed in Sheffield or Croydon.
>>> No second chance for work visa applicants if sponsoring company loses licence: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2103.html
In the case of Pathan & Anor v Secretary of State for the Home Department [2018] EWCA 2103 the Court of Appeal reminds us, once again, of the rigidity and inflexibility of the Points Based System. It is also a good reminder of the purpose and policy behind the Tier 2 visa route.
Briefly, if the UK BA revokes the Tier 2 Sponsorship license, the UK BA may not need to inform the Tier 2 migrants about it AND the Tier 2 migrants may not expect any grace from the UK BA to have (any) chance to find a new Tier 2 sponsor in-country.
>>> UK Immigration Rues in one place: https://www.gov.uk/guidance/immigration-rules/immigration-rules-index
Immigration Rules: Index
The rules are divided into different documents. The index page will help you find the part you need.
Not for the light hearted ©
>>> IELTS Test and the hearing or listening difficulties : https://www.ielts.org/book-a-test/special-requirements/hearing-or-speaking-difficulties
>>> Guidance on how English language requirements are assessed for Tiers 1 and 2 of the points-based system: https://www.gov.uk/government/publications/points-based-system-english-language
>>> Is switching from the Tier 2(ICT) into the Tier 2(General) possible without a 12 month cooling off period ?
Apparently, the answer may be “Yes”. If the migrant is earning in excess of the (currently) £159 600 per year, the migrant can leave the UK and apply for the Tier 2(General) and thus avoid the 12 months cooling period.
Note that the para 245HD.( c ) prevents such a migrant from switching in-country. At the same time the para 245HB.( g )(ii) exempts such a migrant from the 12 month cooling period when applying for entry clearance from outside the UK.
>>> Has your immigration application been outstanding for years and years ?
If your immigration application has been outstanding (that is, awaiting a decision by the UK BA) for years, then you may be able at least able to put some pressure upon the UK BA by at least relying upon the case of the Secretary of State for the Home Department v Said [2018] EWCA Civ 627.
>>> Notes on the UK BA pre-Settled and Pre-Settled Status roll-out programme from the recent UK BA meeting – how will the Settled and Pre-Settled process look like
“Roll out – the default position is that there is no personal checking of docs before applying. There is an app which allows you to take a scan of your passport. The app will read the passport’s biometric and pass the data to the UK BA. Other documents (eg evidence of residence) can be photographed or scanned by the applicant and emailed to the UK BA. Generally, only where there is something suspicious, or deficient, about a document, will a caseworker ask the applicant to submit an original by post.
There will be a personal check of docs if the applicant chooses not to use the app – they can send passports to the UK BA to be checked and sent back, or attend a face to face appointment to have their document verified and given back. And of course the UK BA reserves the right to ask for identity documents to be submitted for manual checks even if the applicant has used the app (for example if the chip didn’t read properly).
Applicants opened the web page by first choosing an EEA/other option. There is an option for a British citizen. It is assumed that choosing this option takes you to information for the British Citizen dual national citizens and the British Citizens and advises that you do not need to apply.
First the applicant registers an email, receives an email to activate, continues with the application and creates an account.
Roll out – simply does this more smoothly than was the case in the pilot.
Provide name (title can be problematic – some passports include it with the name, some don’t).
There is a male/female option.
Roll out – non-binary option is under discussion but is unlikely to be included as it does not exist for other forms of ID.
Option for entering relationships (family members don’t need to apply at the same time as the EEA national but it is generally advisable for the EEA national to enter them here).
Drop down box for indicating nationality. This does not include ‘stateless’ (which may be relevant for a family member).
Enter passport details or ID card details (see above re phone app which will auto populate all the personal data (name, DOB, nationality etc) included in the passport’s chip, as well as the passport details.)
Option for ‘any other nationality?’
Photo upload using webcam
Roll out – using mobile camera or upload. There is no requirement for a formal passport photo.
Confirm mobile number and address. Option to send correspondence elsewhere.
Two questions: Do you have permanent residence documentation? And Do you have indefinite leave? Enter reference numbers.
Roll out – these questions will be made clearer as they confuse those EEA nationals who have had nothing to do with any immigration controls. The person must have got evidence of Permanent Residence from the UK BA, not simply have acquired it.
National Insurance Number – record is checked within one minute on upload of the application.
Roll out – Some tax payments, and some benefits, are not proof of residence, so there will be work done to identify those in the NI records.
Convictions of any kind – give details.
Questions on war crimes/genocide etc. as per other application forms. Further info/definitions appear if you hover over the question.
Website then asks for £65 payment if you have not answered ‘yes’ to ‘do you have documented PR/ILR?’
Child fee is £32.50.
Credit card payment – someone else can pay for you if you don’t have a card.
Roll out – other options?
After the payment page, a page tells the applicant whether they are being considered for Settled or pre-Settled status (see below for criteria, meaning etc).
If you’re being considered for pre-settled status and you believe you should be considered for settled status you have the option to provide evidence to support this. If you choose to do so at this stage the next page will tell you which years of residence have a tick for residence accepted, and which do not. You can then upload or send documents to satisfy residence for those years where the NI record is insufficient, or provide evidence of residence for an en-tirely different period if that is easier (the NI look up defaults to searching for the most re-cent residence period). If you agree that you have not been resident for 5 years, then you just accept the pre-settled status. The UK BA wants to discourage discussion at this stage – if, for example, you get pre settled status, you can apply for free to upgrade to settled status, with evidence, at the point where you accumulate your 5 years’ residence. You don’t need to ar-gue about it or send any evidence about it at the initial stage. It’s meant to be simple – 5 years, or no 5 years?
You get the page with the details of the proposed decision and a reference number sent to your email.
If you want a copy of the information you have put on the application, you can download it.
Roll out – you can download it to your device or have it emailed to you.
That is it for the time being.
What happens next?
The application has to be checked by a human. At that stage the caseworker may call for any dubious documents to be sent in or ask for additional evidence, if required.
The caseworker is not looking out for fraud in relation to benefits or tax. If the proof of resi-dence box is ticked, eg. because in that year some NI payments have been made, or some benefits have been paid out, the caseworker does not see the full detail of that (eg employer name, amount of tax, benefit type etc). If there are missing years then the person may need to upload additional evidence, and the caseworker will see that and consider whether it meets the evidence of residence requirement. As per the published guidance, the evidence submitted does not need to be evidence of employment or any ‘permitted activity.’
The default position is that no documents are sent. The exceptions are where there are a very large number of pages which exceed the file upload limit (which they don’t envisage hap-pening as you don’t need much evidence for proving residence in any one year…..); or the caseworker calls for them – see para above.
Obviously the UK BA can’t make a policy statement that they won’t ever refer information to DWP/HMRC to prosecute fraud, but they’re not searching for it at this stage. There is no duty on the HO to pass on discrepancies to other government agencies. The HO does not want to ‘disincentivise’ people from applying.
There will be a security check run, as for all applicants for some form of immigration status. The caseworker will be interested in any discrepancies between security information and declarations on the application form and will ask for more information. The criteria for re-fusal are set out in the draft withdrawal agreement.
The UK BA said that they are not interested in minor offences eg. Driving penalties. Full details have been published elsewhere.
What does pre-settled status mean?
The easy answer is that it is a five year permit for those who cannot already evidence 5 years’ residence in the UK (you choose any period). After 5 years residence the person can apply for settled status. It is an immigration status only.
The statement of intent explains the other rights eg. It is not lost with up to two years’ absence from the UK, and in a footnote on p32: ‘They will continue to have to provide evidence that they meet the relevant eligibility requirements, eg. In any benefit claim or application for social housing, supported housing or homelessness assistance.’
The UK BA stated that there is no existing definition of ‘pre-settled status’ in benefits/housing law. The intention of the Settlement Scheme is to give security to resident EU citizens by regularising their immigration status, not to entitle people to mainstream benefits when they are not already entitled to them. The test for getting pre-settled status is anything from one day’s ‘residence’ in the UK up to 4 years and 364 days. Such a (potentially) short period should not on its own give rise to an entitlement to social benefits. The pre-settled status is just an immigration category. People with it will still have to comply with existing requirements for EEA nationals as to being qualified by exercising Treaty rights and by hav-ing the right to reside. The UK BA confirmed that before the end of the implementation pe-riod in Dec 2020 there will probably need to be legislation which determines what social benefits those with pre-settled status will have, in the period before they become settled and after the end of the implementation period when their (defined) EEA rights fall away.
The UK BA also confirmed that those who do not apply before the end of the grace period ie. June 2021, will have no recognised immigration status afterwards. (Therefore, until that point those who have not registered for pre/settled status will be relying on their existing EEA rights.)
The rights or status of people who enter by Dec 2020 and only register between then and June 2021: the UK BA said that as long as they enter by 23.59 on 31 December 2020 they are covered by the Withdrawal Agreement and can reside lawfully on that basis until 30 June 2021, by which time they must have made an application to the scheme.
What does settled status mean?
Note – this part is explicitly not confirmed by the UK BA policy people because it’s DWP policy: Settled status does have a meaning in benefits/housing law (it is like ILR) but it has not yet been defined in relation to that law in legislation. The intention is that those with set-tled status will be treated like those with ILR, and I understand that that is the case from the date of grant of settled status and has nothing to do with transition etc. Therefore, I under-stand that people with settled status will be subject to the hab res test in benefits law, as Brit-ish citizens are.
EEA nationals with ILR appear to gain an advantage by applying for settled status – it’s free to convert, it’s currently advantageous for family members of EEA nationals, and it’s not lost with up to 5 years’ residence abroad.
Will there be a hard copy document?
The UK BA confirmed that EEA nationals will not get a document. They will be able to print out the email and pdf of the letter confirming that they have pre/settled status but they will not be able to use it as proof of their status. It is an ‘online status’. They can share a log-on to the evidence of their status with an employer, landlord. It is more updatable, more practical.
Cards get lost, damaged, stolen, have room for less information.
The UK BA wishes to move to a ‘no documents’ system, so did not want to begin a card sys-tem for EEA nationals.
Non-EEA nationals will get a card like the existing BRP if they do not already have one.
Meaning of settled status for citizenship?
Settled status is a grant under UK immigration law. For those who get it on registration and did not have ILR or documented permanent residence before, their period free of immigra-tion control will begin on the day of the grant of settled status. The UK BA said nothing about proof of residence for being granted pre/settled status as having any meaning under the BNA, which requires proof of specific periods of residence.
The UK BA added that where someone wishes to demonstrate that they qualify for British citizenship sooner than one year from the grant of settled status they can continue to apply to have their permanent residence documented and that will retrospectively confirm the date they became from free from immigration time restrictions which can then be used to calculate the date that they qualify/qualified for British citizenship.”.
[size=x-large]>>> UK Government Update: statement by Caroline Nokes MP on the Immigration Health Surcharge increase[/size]: https://www.parliament.uk/business/publicat...-10-11/HCWS995/
[size=large]The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.[/size]
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
>>> UKVI Guidance: Statement of changes to the Immigration Rules: HC 1534: https://www.gov.uk/government/publications/...11-october-2018
The Government has laid out a statement of changes to the Immigration Rules, and an explanatory memorandum.
>>> UKVI Guidance: EU Settlement Scheme pilot: applicant eligibility: https://www.gov.uk/guidance/eu-settlement-s...ntent=immediate
A new phase of the EU Settlement Scheme pilot will open on 1 November 2018 and will run until 21 December 2018.
[size=x-large]>>> UK Government Update: statement by Caroline Nokes MP on the Immigration Health Surcharge increase[/size]: https://www.parliament.uk/business/publicat...-10-11/HCWS995/
[size=large]The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.[/size]
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
>>> UKVI Guidance: Statement of changes to the Immigration Rules: HC 1534: https://www.gov.uk/government/publications/...11-october-2018
The Government has laid out a statement of changes to the Immigration Rules, and an explanatory memorandum.
>>> UKVI Guidance: EU Settlement Scheme pilot: applicant eligibility: https://www.gov.uk/guidance/eu-settlement-s...ntent=immediate
A new phase of the EU Settlement Scheme pilot will open on 1 November 2018 and will run until 21 December 2018.
>>> UK Government Update: statement by Caroline Nokes MP on the Immigration Health Surcharge increase: https://www.parliament.uk/business/publications/written-questions-answers-statements/written-statement/Commons/2018-10-11/HCWS995/
The NHS surcharge fee will double. Students and those under the Youth Mobility Scheme will pay £300 (previously £150) per years, while anyone else will be paying £400 (previously £200) per year.
These changes do not affect permanent residents, who are not required to pay the IHS. Certain vulnerable groups such as asylum seekers and modern slavery victims are exempt from paying the IHS. Short-term migrants (including those on visitor visas) and those without permission to be in the UK are generally charged for secondary care treatment by the NHS at the point of access.
>>> New service from the UK BA beginning in November 2018
From the UK BA email:
“From next month, UK Visas and Immigration is introducing new, streamlined services, allowing customers in the UK to submit all necessary evidence and personal information to support their application quickly and securely through a joined up journey.
The new services will offer a range of benefits to customers, including:
• A streamlined online journey for most application types, with an intuitive easy-to-use form making it easier to apply and the option to purchase additional services for convenience or speed;
• A modernised, digital and more secure process to submit key evidence and personal information, with most customers able to retain their passports and other valuable evidence rather than sending them separately to UKVI;
• Fast and convenient self service with the ability to make applications and upload evidence from home;
• More flexible on-demand, mobile application services, for example at university campuses, employers’ offices or individual customers’ homes;
• Enhanced support for vulnerable customers through a range of financial support for travel costs and mobile services.
UK Visa and Citizenship Application Service
The vast majority of customers will complete their applications via the UK Visa and Citizenship Application Service (UK VCAS), delivered by our commercial partner Sopra Steria. Appointments will be available for free in centres located in 6 major cities; with an additional 50 local user-pay service centres located in libraries; and a user-pay premium service point in central London.
These centres will open around the country from 5th November to early December 2018. During this period, the majority of customers can choose whether to enrol their biometrics and submit their evidence via these new centres or use the existing processes, such as the Post Office.
UKVI Service and Support Centres
For other customers who may be in positions of vulnerability or need more face to face help with their application, free appointments will be offered in 7 dedicated Service and Support Centres (SSCs) from January 2019. This will enable experienced UKVI staff to better understand the customer’s circumstances, validate evidence, and take appropriate action to support them. These customers will continue to use the existing process until January.
Application forms and GOV.UK
Customers will be intuitively led through an online application process, making it clear what they need to do, what supporting evidence they should provide and where they need to go to complete their application.
UKVI’s ambition is to offer a modern, world class customer service to all customers. As such, most visa and immigration services are now available online to customers in the UK via GOV.UK.
Over the next few months the majority of paper forms will be withdrawn and most UK-based customers will need to apply via GOV.UK online.
Support is available to help customers to complete their application online. The Assisted Digital Service aims to ensure that nobody is excluded from making an immigration application due to lack of digital skills or access to a computer. Eligible customers are offered telephone support, or face to face support at a library or their home, to help them access and complete the online form. This service does not provide immigration advice.
We will be in touch later on this month with full details of when every site will open and the process to be followed.
For any questions relating to these new services, please contact FrontEndServicesTeam@homeoffice.gov.uk Premium Sponsors should contact their licence manager.
UKVI and Sopra Steria look forward to working with you to deliver an improved customer service and application process from next month.
Regards,
UK Visas and Immigration.”
>>> UKVI Guidance: Statement of changes to the Immigration Rules: HC 1534: https://www.gov.uk/government/publications/statement-of-changes-to-the-immigration-rules-hc-1534-11-october-2018
The Government has laid out a statement of changes to the Immigration Rules, and an explanatory memorandum.
>>> UKVI Guidance: EU Settlement Scheme pilot: applicant eligibility: https://www.gov.uk/guidance/eu-settlement-scheme-pilot-applicant-eligibility?utm_source=5f1f1a94-ee20-4a78-bc46-4e4e6ddf750f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A new phase of the EU Settlement Scheme pilot will open on 1 November 2018 and will run until 21 December 2018.
>>> New statement of changes to the Immigration Rules: HC 1534 – An in-depth review of the changes
There is some very welcome news, including more flexibility given to caseworkers on whether and when they can write to applicants to ask for missing documents. (Whether they will in practice or still refuse for minor mistakes is another matter.) In addition, the Home Office will no longer insist on seeing original documents: copies may be provided. So far, all in line with the Secretary of State’s plan to “introduce an immigration system that allows staff greater freedom to use their common sense”.
Except where otherwise indicated, these changes will come into force on 5 November, although the statement of changes does not specify whether it is for applications submitted after 5 November, or decided after 5 November.
Making a valid application, fee waivers and passports
Paragraph 34 of the Rules, which deals with valid and invalid immigration applications in the UK, is amended to reflect the introduction of a new in-country application process from next month. The bottom line is they are trying to go digital — see the explanatory memorandum here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/747687/Explanatory-memorandum-HC1534-accessible.pdf - says “the ambition is that most applicants will apply online” — and most people will be able to keep their original documents. Accordingly:
• applicants will no longer need to submit passport-size photographs. This has probably been a redundant requirement for some time, given that applicants are already required to enrol their biometric information, which includes a photograph, as part of their application.
• paper forms can only be used if submitting the application by post. Those who will want to use the Premium Service Centre, or its future equivalent – see https://www.gov.uk/government/news/sopra-steria-has-been-awarded-a-new-ukvi-contract - will need to apply online.
If certain (minor) issues arise during the application process, then:
• where an applicant has not submitted a “valid” application, the Secretary of State may give them an opportunity to rectify the mistake within a specified timescale. It used to be that they could only give 10 working days, but they now have discretion to give more time – or less – it still needs to be confirmed
• the Secretary of State now has discretion to consider an invalid application as valid, provided the specified fee was paid and proof of identity submitted (or, if not submitted, one of the exceptions to submit a proof of identity apply – see paragraph 34(5)). For example, if an applicant were to submit the wrong form, or submit an incomplete form, the Secretary of State could still consider the application as if it had been submitted on the right form.
• the Secretary of State will return an applicant’s ID while the application is outstanding, unless he “considers it necessary to retain it”. This is welcome news. Not having a passport can be problematic: it is needed to give notice of an intention to marry or sit the English language / Life in the UK tests. However, leaving the UK while an application is pending will still result in the application being treated as withdrawn
• those who want to apply for a fee waiver can apply online. They will need to make the fee waiver application first. Once that has been considered and they have received a decision by the Home Office, they will then need to make the application for leave to remain within 10 days. As long as the application for leave to remain is made within those 10 days, the date of the application will be the date of the fee waiver, therefore protecting those who make fee waiver applications on time from becoming overstayers.
These changes will take effect on 1 November, and will apply to applications made on or after that date.
More flexibility and copies of documents
Changes to part 6A of the Rules, relating to Point Based System migrants, also offer more flexibility. For example, officials can decide to:
• request an applicant to submit specified evidence which they have left out entirely. As the Rules are currently drafted, they could only do so if “some of the documents within a sequence have been omitted (for example, if one page from a bank statement is missing) and the documents marking the beginning and end of that sequence have been provided”.
• request more evidence as many times as they wish (the Rules currently specify that a request for documents will only be made once)
• grant an application even if a specified document is omitted or submitted in the wrong format, if the missing information is verifiable from other documents provided in the application or elsewhere.
Documents will not be requested when even if they were provided, the application would still fall to be refused.
These are the good news for the applicants who are worried about having missed any one document in circumstances where it is clear from the rest of the application that the Rules are met. Of course, caseworkers are not obliged to request missing documents (the Rules say “may”, not “must”), but it is hoped discretion will be used whenever applications would otherwise clearly meet the rules.
Another positive development is being able to submit copies of documents rather than originals. These changes are made throughout the Rules, where all references to “original” (as far as it can be seen now) were deleted and/or replaced with “copies”. This can save applicants money and administrative nightmares.
The Legal Centre has been pioneering this approach for over a decade, long before the UK BA decided to “repeat” the firm’s experience. For example, the Legal Centre’s client and the sponsor (spouse) can simply upload their documents into a shared Dropbox folder, and the application can be printed out by either one to submit to the relevant body (the Visa Application Centre in the applicant’s country or Sheffield (for the Settlement applications in certain countries).
EU Settlement Scheme
Changes to the EU Settlement Scheme include:
• changes to reflect the second trial phase of the scheme, which will run from 1 November to 21 December 2018. Details of who will be eligible to apply during this second phase are at pages three to six of the statement of changes and summarised here: https://homeofficemedia.blog.gov.uk/2018/10/11/fact-sheet-eu-settlement-scheme-phase-2/ They include staff in the higher education, health and social sectors across the UK, and “vulnerable individuals” supported by specific local authorities and community groups.
• the introduction of a right to administrative review. This will be available to those whose settled status application is refused on the basis that they do not meet the eligibility requirement and those who are granted limited (pre-settled) rather than indefinite (settled) leave to remain. Those refused on the basis of suitability or those whose application is rejected as invalid will not have a right to administrative review. They are better than typical administrative reviews:
o the application can be made from outside or inside the UK, and it will not be considered withdrawn if an applicant leaves the UK while the administrative review is pending
o the deadline to apply is 28 days after receipt of the refusal (normally the deadline is 14 days for people applying from inside the UK, and 28 if they are applying from abroad)
o the reviewer can take into consideration documents submitted in support of the administrative review which were not available to the decision-maker at the time of the decision (this can only be done in rare circumstances for other administrative reviews) and can even take themselves the initiative to request further documents to an applicant
• amendments are made to align the rights of “Surinder Singh” family members to the family members of EU citizens.
These changes come into place on 1 November.
Other changes
The list of subjects which require an Academic Technology Approval Scheme certificate is updated. The majority of the changes seem to reflect a technical change of name by the Higher Education Statistics Authority rather than a change in the subjects. These changes will take effect on 1 January 2019 for decisions made on or after that date.
Appendix KOLL now specifies the evidence that applicants must provide if they want a medical exemption from the requirement to pass the English language or the Life in the UK tests. People must provide a copy of the form published on gov.uk for this purpose, which can be found here: https://www.gov.uk/government/publications/life-in-the-uk-test-exemption-long-term-physical-or-mental-condition - completed by a doctor who is either:
a. the applicant’s GP or a GP based in the practice with which the applicant is normally registered; or
b. a General Medical Council (GMC) registered consultant
This doctor must have “met with the applicant in person, assessed their ability to fulfill the requirements set out in this appendix, and supports their request for an exception from either or both elements of KOLL on the basis that they have a condition which would prevent them from satisfying the requirements for the foreseeable future”.
>>> A successful Judicial Review may, unfortunately, break down the continued residence
This is because a judicial review does not extend the leave under the Section 3C. The UK BA may, therefore, consider the applicant’s continuous lawful residence under Long Residence as broken.
>>> Losing a Tier 2 sponsorship while applying for ILR
If one applies for ILR on the basis of competing a 5 year employment period and then the current employer withdraws/loses the Certificate of Sponsorship, any new employer of that Tier 2 migrant will need to apply for a new certificate of sponsorship on the basis of para 14 of the court of appeal judgement in QI ( PAKISTAN ): https://www.bailii.org/ew/cases/EWCA/Civ/2011/614.html
>>> UKVI forms: Application to transfer UK visa to new passport: https://www.gov.uk/government/publications/application-to-transfer-uk-visa-to-new-passport?utm_source=f809996e-2318-49b5-b12b-2b14fac84cb6&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The form to apply to transfer a visa to a new passport if you have not travelled to the UK yet has been updated.
>> Upper Tribunal tackles the law on the parent/child relationship: https://www.bailii.org/uk/cases/UKUT/IAC/2018/334.html
In SR (subsisting parental relationship – s117B(6)) Pakistan 2018 UKUT 3345 (IAC), the Upper Tribunal examines the various pieces of law relevant to deciding whether someone who has a child in the UK should be allowed to stay here.
The case is helpful for two reasons:
1. The Home Office’s approach to section 117B(6) in its new guidance, published in February 2018 and discussed on this blog by Nath shortly afterwards, is firmly rejected
2. The tribunal provides a useful summary of the law on evaluating the parent/child relationship
The official headnote:
1. If a parent (‘P’) is unable to demonstrate he / she has been taking an active role in a child’s upbringing for the purposes of E-LTRPT.2.4 of the Immigration Rules, P may still be able to demonstrate a genuine and subsisting parental relationship with a qualifying child for the purposes of section 117B(6) of the Nationality Immigration and Asylum Act 2002 (‘the 2002 Act’). The determination of both matters turns on the particular facts of the case.
2. The question of whether it would not be reasonable to expect a child to leave the United Kingdom (‘UK’) in section 117B(6) of the 2002 Act does not necessarily require a consideration of whether the child will in fact or practice leave the UK. Rather, it poses a straightforward question: would it be reasonable “to expect” the child to leave the UK?
>>> New asylum policy on non-Dublin third country cases: https://www.gov.uk/government/publications/inadmissibility-third-country-cases
The Home Office has published a new policy document entitled Inadmissibility: EU grants of asylum, first country of asylum and safe third country concepts, all about non-Dublin third country cases. It covers Immigration Rules 345A-D on asylum claims where the claimant has:
1. Already been granted protection in another EU country (rule 345A)
2. Already been granted protection in a non-EU country which is considered safe (rule 345B)
3. A “sufficient degree of connection” to a non-EU safe country to be removed there (rule 345C and 345D)
There are few if any such cases really, so the time spent writing the policy was no doubt time “well” spent.
>>> Tribunal to make its own decisions on trafficking cases: https://www.bailii.org/uk/cases/UKUT/IAC/2018/335.html
In ES (s82 NIA 2002, Negative NRM) [2018] UKUT 335 (IAC) a victim of trafficking from Albania had been assessed by the Home Office not to be a victim of trafficking under the National Referral Mechanism. Previous cases have held that the tribunal is effectively fixed with the NRM trafficking decision. Not so, finds Judge Nadine Finch.
Not only does Judge Finch distinguish earlier Court of Appeal authority but she also disagrees with the earlier determination of Judge Gill in AUJ (Trafficking – no conclusive grounds decision) Bangladesh [2018] UKUT 200 (IAC), commenting that the relevant finding was obiter and not part of the official headnote.
The official headnote to ES:
1. Following the amendment to s 82 of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), effective from 20 October 2014, a previous decision made by the Competent Authority within the National Referral Mechanism (made on the balance of probabilities) is not of primary relevance to the determination of an asylum appeal, despite the decisions of the Court of Appeal in AS (Afghanistan) v SSHD [2013] EWCA Civ 1469 and SSHD v MS (Pakistan) [2018] EWCA Civ 594.
2. The correct approach to determining whether a person claiming to be a victim of trafficking is entitled to asylum is to consider all the evidence in the round as at the date of hearing, applying the lower standard of proof.
3. Since 20 October 2014, there is also no right of appeal on the basis that a decision is not in accordance with the law and the grounds of appeal are limited to those set out in the amended s 82 of the 2002 Act.
Also, some interesting discussion in the determination of assessing vulnerability of a witness and then how to deal with that witness’s evidence. Good to see a realistic and humane approach being adopted by the UK BA Presenting Officer.
>>> Tribunal President says bus drivers and brain surgeons to be treated the same: https://www.bailii.org/uk/cases/UKUT/IAC/2018/336.html
Thakrar (Cart JR; Art 8: value to community) [2018] UKUT 336 (IAC) is a rare example of a case where permission to appeal to the Upper Tribunal was only granted by a High Court judge after a Cart judicial review of the Upper Tribunal. To put it another way, the Upper Tribunal did not think there was merit in the case but was forced to hear it anyway by a High Court judge.
The head-note:
(1) The fact that an application for permission to appeal involves the assertion that a per-son’s removal from the United Kingdom would violate his or her human rights does not, without more, engage that part of the second appeal criteria, which allows permission to appeal (or permission for a ‘Cart’ judicial review) to be granted, on the basis that removal constitutes a ‘compelling reason’ for the appeal to be heard. If the position were otherwise, the second appeal criteria would lose their function as a restriction on the power to grant per-mission to appeal in immigration cases.
(2) Before concluding that submissions regarding the positive contribution made by an individual fall to be taken into account, for the purposes of Article 8(2) of the ECHR, as diminishing the importance to be given to immigration controls, a judge must be satisfied that the contribution is very significant. In practice, this is likely to arise only where the matter is one over which there can be no real disagreement. One touchstone for determining this is to ask whether the removal of the person concerned would lead to an irreplaceable loss to the community of the United Kingdom or to a significant element of it.
(3) The fact that a person makes a substantial contribution to the United Kingdom economy cannot, without more, constitute a factor that diminishes the importance to be given to immigration controls, when determining the Article 8 position of that person or a member of his or her family.
(4) If judicial restraint is not properly maintained in this area, there is a danger that the public’s perception of human rights law will be significantly damaged.”
>>> Is completion of a 10 year lawful residence route possible with a visitor visa ?
Technically, yes, that is possible. However, visitors applying for ILR or another category may be refused under 322(7) because of V 4.2 (a) & (c), unless there was a strong change of circumstances.
>>> UK Students – what work you CAN NOT do: https://www.ukcisa.org.uk/Information--Advice/Working/What-kind-of-work-can-you-do and the in-depth information here, too: https://www.ukcisa.org.uk/blog/6257/A-working-definition
>>> Court of Appeal says statelessness must be proved on balance of probabilities: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2234.html
In AS (Guinea) v Secretary of State for the Home Department [2018] EWCA Civ 2234, the Court of Appeal has in effect rebuffed an attempt by the UN High Commissioner for Refugees to make it easier to establish statelessness. The court ruled that the standard of proof for determining a statelessness application is the normal civil standard, i.e. the balance of probabilities.
The appellant had argued that the “real risk” standard of proof, which is used for determining refugee status, should be applied. That lower standard is recommended by the UNHCR in a 2014 handbook on how to apply the 1954 Statelessness Convention. Instead, the Court of Appeal chose to follow a line of domestic authority supporting the use of the ordinary civil standard and noted that, of the states which are party to the Convention, only six use a standard of proof below the balance of probabilities.
>>> High Court upholds Home Secretary’s decision to cancel passports of British citizens: https://www.bailii.org/ew/cases/EWHC/Admin/2018/2651.html
An important decision by the UK High Court that demonstrates that possession of a British passport is precarious. Having a passport is a privilege, not a right, and the Home Secretary can exercise his power under the royal prerogative to cancel a passport if he thinks it is in the public interest.
>>> UKVI form triple update: Application for a replacement biometric residence permit: BRP(RC); Application to transfer indefinite leave to remain in UK: NTL; Application to transfer visa to biometric residence permit: TOC
The forms have been now updated.
>>> Wanted: 40 immigration judges, salary £100,000+
The link: https://www.judicialappointments.gov.uk/vacancies/109
The Judicial Appointments Commission is advertising for 41 new salaried judges to fill vacancies in the immigration and asylum chamber of the First-tier Tribunal. The salary is an attractive £108,171 (slightly more in London).
The scale of this recruitment drive is unprecedented in recent times. The last set of salaried appointments in January 2018 saw 11 judges appointed, with a handful more confirmed the following month.
These piecemeal additions have obviously been insufficient to address a growing shortage. In 2005 there were 152 salaried judges sitting in the tribunal’s immigration and asylum chamber, according to its President, Michael Clements. By last year, that was down to just 57. A report by Justice earlier this year found that “morale among First-tier Tribunal (Immigration and Asylum Chamber) judges is not as it should be”.
>>> Home Office CAN speak to your persecutor without asking you: https://www.bailii.org/uk/cases/UKUT/IAC/2018/337.html
So says the Upper Tribunal in PA (Protection claim, Respondent’s enquiries, Bias) [2018] UKUT 337 (IAC); at least if your confidentiality is preserved.
Officials checked Bangladeshi police records for evidence of persecution PA, a Bangladeshi national, claimed asylum in April 2016 on the basis that he was an active member of the Bangladesh National Party. He had entered the UK in 2012 and was placed on reporting conditions in January 2013; the reason for the late asylum claim is not explained. In support of his claim the appellant had provided First Information Reports (FIRs) and charge sheets, issued by the police in Sylhet at the behest of his political opponents.
With a zeal that is not seen in countries where false documents are not so readily available, the Home Office conducted a document verification exercise and produced a report. A member of staff from the British High Commission visited the police station and asked to verify the FIRs and the charge sheets. In a move that seems strange to us in the age of GPDR, the officer in charge looked in the register and after not locating the documents relating to PA happily allowed the High Commission official to have a look through the records himself. The official could not locate the original documents either.
The Home Office unsurprisingly found the documents to be false and refused the applicant’s claim for asylum. The First-tier Tribunal agreed.
The Upper Tribunal granted permission to appeal on three grounds. It may be worth reading the whole determinate to appreciate the scope of the Home Office’s “zeal” in certain cases.
The official headnote:
1. Respondent’s inquiries in country of origin of applicant for international protection
(1) There is no general legal requirement on the Secretary of State to obtain the consent of an applicant for international protection before making an inquiry about the applicant in the applicant’s country of origin. The decision in VT (Article 22 Procedures Directive – confidentiality) Sri Lanka [2017] UKUT 368 (IAC) is not to be read as holding to the contrary.
(2) The United Kingdom’s actual legal obligations in this area are contained in Article 22 of the Procedures Directive (2005/85/EC), as given effect in paragraph 339IA of the Immigration Rules. So far as obtaining information is concerned, these provisions prohibit making such an inquiry in a manner that would result in alleged actors of persecution being directly informed of the fact that that an application for international protection has been made, which would jeopardise the applicant’s (or his family’s) physical integrity, liberty or security.
(3) If information is obtained in a way that has such an effect, the fact that the applicant may have given consent will not affect the fact that there is a breach of Article 22.
2. Allegations of judicial bias
(1) An allegation of bias against a judge is a serious matter and the appellate court or tribunal will expect all proper steps to be taken by the person making it, in the light of a response from the judge.
(2) The views of an appellant who cannot speak English and who has had no prior experience of an appeal hearing are unlikely to be of assistance, insofar as they concern verbal exchanges between the judge and representatives at the hearing of the appeal. In particular, the fact that the judge had more questions for the appellant’s counsel than for the respondent’s presenting officer has no bearing on whether the judge was biased against the appellant.
(3) It is wholly inappropriate for an official interpreter to have his or her private conversations with an appellant put forward as evidence.
(4) As a general matter, if Counsel concludes during a hearing that a judge is behaving in an inappropriate manner, Counsel has a duty to raise this with the judge.
(5) Although each case will turn on its own facts, an appellate court or tribunal may have regard to the fact that a complaint of this kind was not made at the hearing or, at least, before receipt of the judge’s decision.
(6) Allegations relating to what occurred at a hearing would be resolved far more easily if hearings in the First-tier Tribunal were officially recorded.
>>> UKVI Guidance: EU Settlement Scheme: evidence of UK residence: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence?utm_source=5fc34169-4721-4f7c-acfb-37f23d86246f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
How to provide evidence that you’ve been living here if we can’t confirm this through an automated check of UK tax and benefits records.
>>> UKVI Guidance: Correcting an incorrect endorsement: ECB19: https://www.gov.uk/government/publications/correcting-an-incorrect-endorsement-ecb19?utm_source=1732d22a-1854-466c-ab04-71a1e20e2541&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information and guidance on handling visa applications made outside the UK.
Added information about the time limit for raising errors. Removed information about the address to send passports to, the information is no longer valid.
>>> The closure of the UK BA Premium Service Centres and the NEW options to get decisions in 24 hours: http://legalcentre.org/files/UK_UK_New_Services_Oct_2018.pdf
The UK BA Premium Service Centres will close from 30 Nov 2018 so there will be no more same day service appointments the way they were operating before. The new service will be introduced from the 1st November 2018. The services will also include the checking document service for the applicant.
Three different options are being introduced:
1. Standard service – 8 weeks
2. Premium service – 10 working day
3. Super premium service – 24 hours
The fees for the NEW Super Premium Service will be the same as the fees for the OLD Same Day Service: https://www.gov.uk/government/publications/visa-regulations-revised-table/8-october-2018
>>> Tier 4 Students, beware – the danger of travelling after your final exam !
The UK Immigration Officer at the port of entry can revoke your existing Tier 4 BRP card/visa if you travel outside of the UK following a completion of your course.
To avoid this situation the one would be better of extending the current leave (visa) or switching into a different immigration category BEFORE travelling and returning to the UK upon completion of the educational course.
>>> The adequate maintenance requirement in the Immigration Rules
The Guidance can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/452967/IDI_Adequate_Maintenance_and_Accommodation_Appendix_FM_Annex_1_7A.pdf
>>> Supreme Court: bad behaviour by parent irrelevant to best interests of children: https://www.bailii.org/uk/cases/UKSC/2018/53.html
The Supreme Court has recently handed down judgment in four linked cases all concerning the best interests of children who themselves face removal from the UK or whose parent faces removal from the UK. The case is likely to be referred to as KO (Nigeria) and Others v Secretary of State for the Home Department [2018] UKSC 53.
The cases concern the new scheme of prescriptive immigration rules introduced by Theresa May as Home Secretary in 2012, bolstered by statutory reinforcement in the Immigration Act 2014. These provisions were intended to reduce judicial discretion. The reality has been a mess of conflicting and confusing decisions.
>>> Do you owe more than £500 to the NHS ?
If so, then your visa may be refused or even revoked on entry to the UK, under the para 320(22):
“320(22) where one or more relevant NHS body has notified the Secretary of State that the person seeking entry or leave to enter has failed to pay a charge or charges with a total value of at least £500 in accordance with the relevant NHS regulations on charges to overseas visitors.”
Those who have “regularized” their status in-country and were issued with the 2.5 year BRP
>>> Is there a limit on how many times the applicant can vary (change the type) of his outstanding application ?
The answer is “No”.
At the same time one should note that it may not be possible to vary an application at the UK BA Premium Service Centres.
>>> Can one make a new spouse (out of country application) whilst they have an appeal pending (in respect of the refusal of an earlier spouse visa – out of country as well) ?
The answer is generally “Yes”, on the basis of https://web.archive.org/web/20170310053253/https://www.gov.uk/government/publications/appeal-procedures-apl01/archived-appeal-procedures-apl01#apl120-applicant-makes-fresh-application-while-an-appeal-is-outstanding
>>> UKVI forms: updated form SU07 to sponsor a visa applicant: https://www.gov.uk/government/publications/sponsor-a-visa-applicant-form-su07
Form SU07 to sponsor a visa applicant, otherwise known as the 'sponsorship undertaking form', has been updated.