19 December 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
1. In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.
2. It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.
The Upper Tribunal has held in the case of LS (Article 45 TFEU – derivative rights) [2018] UKUT 426 (IAC) that the family member of a cross border worker within the EU — one who lives in one EU country but works regularly in another — can derive a right of residence from Article 45 TFEU if required for childcare by the cross border worker. The determination is based on the little-known case of C-457/12 S & G.
On the facts, this meant the foreign national mother / mother-in-law of a naturalised British couple was allowed to remain in the UK under EU law because the couple were both traveling regularly to the EU for work and the mother was needed for childcare. The family had no other reasonable childcare possibilities available to them and the tribunal was not willing to find that the mother should give up her job to do the childcare.
The tribunal held that, to succeed, first of all, the appellant needs to show:
1. That he or she is a family member (for example, spouse or partner or dependent parent or grandparent);
2. Of a Union citizen who is exercising Article 45 TFEU rights as a worker in another EU country (“Any Union citizen who regularly travels, in the course of his or her professional activities, to a Member State other that the Member State in which he or she resides will fall within the scope of Article 45.”);
3. And that the appellant is needed by the Union citizen for childcare purposes, which will require demonstration “by the provision of reliable evidence, that genuine and reasonable steps have been taken or investigated to obtain alternative childcare provision”;
4. And that the Union citizen would be deterred from exercising his or her Article 45 free movement rights as a worker if the childcare was not available (“Any interference must be real such that the Tribunal is satisfied that the Union citizen will in fact be discouraged from the effective exercise of his or her rights as a direct consequence of the childcare issues.”).
When it comes to demonstrating that alternative childcare is not feasible the tribunal makes clear that merely preferring that a family member provide the childcare is not sufficient and some serious effort is needed:
“Sources of alternative childcare may include, inter alia, other friends or family, the child’s nursery or school (including breakfast or after school clubs), child-minders, the use of one or more au pairs, the employment of one or more live-in nannies, or a combination of the above.”
The case succeeded on its facts. An au pair arrangement would not work because there are limits to au pair contracts and evidence of babysitter searches was presented to the tribunal. The child was already at a full time nursery but the couple worked such long hours and travelled so frequently for work that a team of three live-in nannies would be needed to provide 24/7 childcare frequently but on an unpredictable basis. The tribunal held this would not be feasible for the couple.
20 December 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
• Scrapping the overall cap on sponsored work visas, currently branded as Tier 2 (General)
• Lowering the skills threshold from level 6 (degree) to level 3 (A-level)
• Abolishing the Resident Labour Market Test
• Reducing the bureaucratic burden on sponsoring employers
The minimum income will be at £30 000, although this is likely to be further reduced to £21 000.
Workers, including the EU citizens who arrive after the implementation period, in lower skilled jobs, will only be able to work in the UK for up to 12 months with the obligatory cooling off period of 12 months. Also, workers in the lower skills job may not be able to bring dependents with them.
As usual with the UK Government plants, the above may well (not) be implemented or (heavily) amended.
The new system will be phased in from 2021. It is about future migration and so will not affect EU citizens already living in the UK, who will be able to apply for “settled status” in order to stay legally after Brexit (whether or not there is a deal on an orderly exit).
21 December 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
After successful private pilots of the system, the next testing phase of the EU Settlement Scheme is now opening more widely.
EU citizens living in the UK who have a valid passport will be able to take part in a public test phase of the EU Settlement Scheme.
From 21 January 2019, EU citizens, as well as their non-EU citizen family members who hold a valid biometric residence card, will be able to apply for the immigration status they will need once the UK has left the EU. By applying during this test phase, they will also provide valuable insight into how the system is performing so that further improvements can be made before the scheme is fully rolled out from March 2019.
A policy equality statement on increasing the immigration health surcharge.
The NHS Surcharge fee will be increased (£150/£200 will become £300/£300 respectfully)
>>> Useful EEA case-law in relation to the Primary responsibility for adults:
- EA014782016 [2018] UKAITUR EA014782016 (5 April 2018)
- Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 (13 December 2017)
- TR (Pakistan) v Secretary of State for the Home Department [2015] EWCA Civ 1412 (01 December 2015)
- Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC) (13 August 2015)
>>> Can a child of the 2 parents with ILR, who was born outside of the UK, be granted ILE (Indefinite Leave to Enter) ?
The answer is “yes”. The child should apply for ILE Entry clearance as soon as possible.
The parents also need to prove that they have adequate maintenance and accommodation. The child needs to pass (if relevant) the TB test etc.
The parents will need to show that it is their intention to settle in the UK (ie intend to make the UK their home) and that they’re not just applying/returning for the purpose of getting their child indefinite leave (para 297(i)(b)).
22 December 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
>>> Immigration health surcharge to double from 8 January 2019
The immigration health surcharge will double on 8 January 2019. The extra fee paid by visa applicants to fund the NHS will rise to £400 a year, up from £200, for applications made on or after that date. Students and those on the Youth Mobility Scheme pay £300 (up from £150).
An Order authorising the increase was made on 18 December and will comes into force “on the twenty-first day after the day on which it is made”.
24 December 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
>>> Appealing with a child who is over 17 at the date of the hearing ? Beware of the Rules !
If a child of an appellant has turned 18 or more at the date of the hearing, then the Section 85(4) comes into play and therefore the child cannot meet the rules under para 297(ii).
27 December 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
31 December 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
01 January 2019 – 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 High Court has ruled that a claimant is entitled to extra unlawful detention damages for frustration and anxiety where the Home Office fails to provide a release address. The guidance on this issue provided by R (Diop) v Secretary of State for the Home Department [2018] EWHC 3420 (Admin) is especially important in light of the changes made to the system of bail accommodation since the Immigration Act 2016 came into force. The Home Office has refused to set up an application system for applying for accommodation under Schedule 10 of the Act, which has led to more detainees resorting to applications for bail in principle from the First-tier Tribunal and lengthy waiting periods for release after bail has been granted.
This decision means that the Home Office will have to pay additional compensation if that delay is unlawful.
03 January 2019 – 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
07 January 2019 – 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
According to the UK BA, a migrant who wishes to make an application for secondary employment would have to pay the IHS charge again and then make a refund claim.
>>> Immigration and nationality law for adopted children
There are different types of adoption:
-Adoptions under the terms of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (or just “Hague Convention” in this context). The Hague Convention only applies to inter-country adoptions. In other words, a family based in the US adopting a child in the US cannot adopt under the terms of the Hague Convention. In addition, not all counties are party to the Convention.
-Overseas adoptions recognized by UK law. These are adoptions which took place in countries or territories whose adoption procedures are recognized by the UK. For adoptions which took place before 3 January 2014, the list of countries is found in The Adoption (Designation of Overseas Adoptions) Order 1973 and The Adoption (Designation of Overseas Adoptions)(Variation) Order 1993. For adoptions which took place after 3 January 2014, the list of countries is found in The Adoption (Recognition of Overseas Adoptions) Order 2013 for England, Wales and Northern Ireland; and in The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013 for Scotland.
- Overseas adoptions not recognized by UK law. These are adoptions which took place in countries not listed above. These cases can be very difficult in immigration terms unless they are classed as “de facto adoptions” (see below) but the recent case of W v SSHD [2017] EWHC 1733 (Fam) provides a rare example of a reported successful resolution, although not without considerable stress and expense
- De facto adoptions, defined at paragraph 309A of the Immigration Rules as situations where:
(i) The adoptive parents have been living together abroad for at least eighteen months; and
(ii) The adoptive parents have been living together with the child for twelve months; and
(iii) The adoptive parents have cared for the child for the full eighteen month period.
De facto adoptions are a concept of the Immigration Rules. They do not “mean” anything under family law and do not grant parental rights to parents or nationality rights to a child.
Immigration and nationality law apply differently depending on the type of adoption.
08 January 2019 – 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 immigration and asylum tribunal has issued updated but essentially unchanged Practice Directions. The new document is almost identical to the previous version, dated November 2014. It seems that there has been just one change:
"13. Bail applications
13.1 Subject to First-tier Rule 39(3), an application for bail must, if practicable, be listed for hearing within six working days of receipt by the Tribunal of the notice of application."
09 January 2019 – 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 starts issuing refunds for the Super Premium Application in cases they are not able to consider the application within 24 hours
A colleague has just received an email from the UK BA, confirming that the UK BA has refunded his client £610 as they were not able to make a decision in 24 hours… at least some relief for client.
>>> The NHS surcharge fees has been increased from the 8th January 2019
Today (8 January 2019), the Immigration Health Surcharge has increased from £200 to £400 per year; £150 to £300 for students and those on the Youth Mobility Scheme. This increase was approved by Parliament in December 2018. Those who make an application on or after 8 January 2019 will pay the new surcharge rate.
Full guidance on the policy for applications by the family of people who have UK visas under the points-based system (PBS dependants).
>>> Strasbourg court upholds deportation of Turkish man born and raised in Germany: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-188384%22]}
In Cabucak v Germany (application no. 18706/16), the European Court of Human Rights dismissed a strong Article 8 claim to uphold a deportation order made against a serial drug-dealer.
Mr Cabucak, who despite being a Turkish national was born and raised in Germany, has a tragic life story. His father killed his mother when he was two years old. He has a German daughter and successfully appealed against a previous deportation order in 2005. Unfortunately, Mr Cabucak continued to commit criminal offences and therefore the German authorities made a second deportation decision in 2008 which was upheld by the domestic courts.
The European Court of Human Rights agreed with the German authorities that deportation was a proportionate response to Mr Cabucak’s offending. It accepted that there would be some negative impact on his daughter and noted that he had only been to Turkey on two brief holidays as a child, but this was not enough for him to succeed under Article 8.
The new policy makes clear that where a relationship is in doubt, the applicant declines to produce DNA evidence and the Home Office ultimately concludes that the relationship is unproven (supposedly on the balance of probabilities standard of proof, although the policy rather unhelpfully does not actually say this) then the application will be refused.
11 January 2019 – 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 does not cope with the 24 hour Super Premium Service applications
The following E-mails are being sent to the applicants/lawyers by the UK BA:
"If we cannot decide the application within the 24- hour service standard for reasons outside the control of the customer the application will be decided as quickly as possible and the SPV element of the fee refunded to the customer. We are currently reviewing decisions made since the start of the UKVCAS transition period to identify cases where we have not delivered a decision within the SPV service standard. We aim to complete this exercise by January 2019.
Yours faithfully,
UK Visas and Immigration"
>>> Can a visitor lodge an application to register as a British citizen via the form UKM ?
In the case of Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848, Lord Justice Irwin in the Court of Appeal held that where an appeal against deportation is allowed, the Home Office cannot make a second decision to deport unless there has been a change of circumstances.
14 January 2019 – 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
16 January 2019 – 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
17 January 2019 – 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 Court of Appeal has reluctantly but unanimously agreed with the Home Office’s decision to refuse a Tier 1 (Entrepreneur) application for further leave to remain based on a factual issue of specified documents not being submitted. It rejected arguments that evidential flexibility should apply. The case is Harpreet Singh v Secretary of State for the Home Department [2018] EWCA Civ 2861.
Since January 2015, 1,700 settlement applications from Tier 1 (General) migrants have been refused under paragraph 322(5) of the Immigration Rules, primarily due to discrepancies between earnings declared to HMRC and to the Home Office at the time of making an application.
During that time, the higher courts in England and Wales have been busy deciding issues relating to the plausibility of explanations put forward by applicants and issues of fundamental fairness whilst the Court of Session in Scotland has remained silent – until now.
Dadzie [2018] CSOH 128 and Oji [2018] CSOH 127 are the first reported cases in the Court of Session on refusal of indefinite leave to remain under paragraph 322(5) because of tax discrepancies. The facts in both cases were very similar and the court heard them together. Ultimately both decisions were overturned because of flaws in how the allegations were put to the applicants and a failure to consider the innocent explanations put forward.
21 January 2019 – 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
22 January 2019 – 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
>>> Immigration Rules must be rewritten, Law Commission says
The Immigration Rules should be redrafted and restructured in order to cut down on complexity, the Law Commission says. Launching a consultation on Simplifying the Immigration Rules today, the influential law reform body proposes major revisions to “provide a more logical structure, remove unnecessary repetitions and improve the drafting”.
The regulations that underpin the UK’s immigration system have grown from 40 pages in 1973 to around 1,100 today, the commission points out. The sheer length, unwieldy drafting and confusing structure of the Rules make it difficult for migrants — as well as Home Office decision-makers — to understand and follow them.
The Law Commission gives the example of the rules on applying to extend an entrepreneur visa. These include a requirement that the applicant has created two new full-time jobs by setting up their business. Paragraph 50 of Appendix A now devotes 750 words to the evidence required to prove this; the equivalent a decade ago took just 76 words.
On structure, the Law Commission says that having the requirements for a particular visa scattered around different sections of the Rules is the worst possible approach. Instead, it recommends that the redrafted Rules follow either
a “common provisions” approach, where applicants can check the requirements common to all visas before turning to their particular route
a “booklet” approach, where all the requirements for a particular route are gathered together under one heading.
Either way, the commission provisionally recommends that the Rules be divided into 15 categories:
Visitors
Students
Work
Short-term work and work experience
Business and investment
Family members of workers, businesspersons, investors and students
Family members of British citizens, settled persons and persons with refugee/humanitarian protection status
Long residence and private life
Armed forces
Other categories
ECAA nationals and settlement
EU citizens and family members
Asylum
Temporary protection
Stateless persons
There are 54 consultation questions in total. The deadline for responses is 26 April 2019.
23 January 2019 – 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
>>> So you are chaning your Tier 2 employer ? You may need to:
Your new employer will need to assign you with an unrestricted CoS in order for you to make a Change of Employment application. However, your new employer will probably first have to have run a resident labour market test (RLMT) before assigning the CoS, unless an RLMT exception applies.
The Tier 2 application can then be submitted online here:
You will have to pay the application fee. It appears you will also have to pay the IHS fee again – which is due to increase to £400 per year tomorrow. You should though get a refund on the IHS.
The domestic violence concession allows victims of domestic abuse access to public funds while they make an application for settlement. The High Court has now made clear that this concession only applies to those who are already on the route to settlement as a partner in the case of FA v Secretary of State for the Home Department [2018] EWHC 3475.
24 January 2019 – 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
A reminder from the Court of Justice of the European Union that EU law still applies to the UK until Brexit actually happens. The Irish asylum authorities had asked, in effect, whether the triggering of Article 50 meant that it shouldn’t send asylum seekers across to the UK any more. The Court of Justice said no. The case is C‑661/17 MA, SA and AZ v International Protection Appeals Tribunal and others.
25 January 2019 – 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 updated Guidance on how the UK Visas and Immigration staff consider claims on the basis of family life or on the basis of private life, on a 10-year route to settlement
29 January 2019 – 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
>>> Is it possible to switch from Tier5 intoto Tier2 in-country?
Yes, it is possible under the para 245HD.(b)(i):
(4) a Tier 5 (Temporary Worker) Migrant...
But it is NOT possible for the Tier 5 (Youth Mobility Scheme) Temporary Migrants.
>>> Can a PBS dependent apply for ILR independently from the main PBS applicant ?
The answer is usually "No", because the PBS dependent needs to satisfy the Para 319E, including
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
>>> Can a migrant who used deception in the past under the Tier 1 and Tier 4 routes apply for ILR under the Appendix FM ?
For example, an applicant was refused visas under the Tier 1 and Tier 4 immigration categories 4 because of fraudulent documents with the 10 years ban in 2012. The decision letter says that any future applications under spouse route etc. would not be affected. So, in 2015 the applicant was granted entry clearance as a spouse of a British citizen. In 2020 the applicant is planning to apply for ILR.
Can this applicant expect a grant of ILR ?
The answer is "Probably", if the applicant satisfies the Para D-ILRP.1.1., including satisfying the Paras S-ILR.
If the applicant previously satisfied the Paras S-LTR, despite the previous fraudulent documents, then the applicant should be able to satisfy the analogous paragraphs in Para S-ILR.
This is a complex case and assistance of an experiences firm like the Legal Centre (www.legalcentre.org) is advised.
In the event of no deal, EU citizens will be able to enter the UK to visit, work or study after 29 March 2019. For stays longer than 3 months, European Temporary Leave to Remain will be required.
Guidance for EU citizens coming to the UK to visit, study, work or join family if the UK leaves the EU with no Brexit deal.
This explains the transitional immigration arrangements for EU citizens arriving in the UK after free movement has ended if the UK leaves the EU without a deal.
05 February 2019 – 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 I ask the Home Office to waive their application fees ?
The answer is "Yes, but there are conditions".
The following 2 cases form the basis of Home Office policy on fee waivers. The first is R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The second case is R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin).
The case law has found that it was unlawful for the Secretary of State to charge a fee for a human rights based application where the applicant cannot afford the fee. In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the person concerned cannot afford the fee and the Secretary of State must agree to waive the fee when an applicant is unable to afford the fee and has a human rights claim.
Who can qualify for a fee waiver?
In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. More particularly, the following groups can qualify:
- Applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
- Applications for leave to remain under the 5-year parent route
- Applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under Article 8 of the European Convention on Human Rights (the right to respect for private and family life)
- Applications for leave to remain on the basis of other ECHR rights
- Applications for further leave to remain from applicants granted discretionary leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
- Applications for further discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave and are seeking to extend it for reasons related to trafficking or slavery
It is possible for an applicant to pay for their fee but apply for a fee waiver for one or more dependant.
Importantly, applications for Indefinite Leave to Remain (ILR), even if based on a human rights claim, are not covered. Applicants could be extending their leave forever, until they can afford to pay the indefinite leave to remain fee. This is currently £2,389 and will in all likelihood continue to increase over the years.
Criteria to be granted a fee waiver
Applicants for a fee waiver will need to show that one of the following three circumstances apply:
1. They are destitute
Applicants are considered destitute when
- They do not have adequate accommodation or any means of obtaining it; or
- They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.
2. They would be rendered destitute by payment of the fee
This route is for those who are not destitute at the time of the application, and have adequate accommodation and can meet their other essential living needs, but have no disposable income.
In these cases, however, there is also a need to consider
- Whether, if receiving accommodation and essential living needs support from family or friends, they are able to borrow the required amount for their immigration application also (but only if receiving accommodation this way).
- Whether the applicant’s financial circumstances are likely to change – for instance, for those with the relevant leave, because of an offer of employment – within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time).
What happens after the fee waiver application is submitted?
What happens after an application for a fee waiver has been considered depends on the outcome of the application.
Application is granted
If an applicant is granted a fee waiver they will be issued with a Unique Reference Number (URN) to be used when applying for leave to remain online.
The application for leave to remain must be submitted within 10 working days of the date of the decision (not the date that the decision is received). They must then make an appointment at a Service and Support Centre within 17 working days.
If an applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
Application is refused
The status of an applicant when their application for a fee waiver is refused depends on whether the applicant had valid leave at the time of the application.
Applicants who had valid leave at the time of the application will be advised that they do not qualify for a fee waiver and be given 10 working days to submit additional evidence that demonstrates they qualify for a fee waiver. If the new evidence submitted satisfies the caseworker that they are eligible for a fee waiver, their application will be granted and they will be given another 10 working days to submit the application for leave to remain.
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, their application will be refused and they will be given 10 working days to submit an application for leave to remain and pay the application fee. If they do not do so before their leave expires, they will become overstayers.
If the applicant had no valid leave at the date of application, their application will simply be rejected as invalid. They will need to submit a new application with the fee or a new application for a fee waiver.
08 February 2019 – 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
A major government review of legal aid proposes no significant changes in the immigration and asylum field. Despite evidence of the impact of cuts over the past five years, and the role that legal aid would have played in preventing the Windrush scandal, the Ministry of Justice has refused to roll back the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as it relates to immigration work. The sole exception is an amendment granting legal aid to unaccompanied migrant children.
The review, published this morning, shows an 85% reduction in legal help for non-asylum immigration matters since LASPO, and a 62% reduction in full representation.
11 February 2019 – 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
13 February 2019 – 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 use the expired passport with the immigration application
The answer is "Possibly". The para 34(5)(b)(ii) of the Rules does provide this opportunity:
"(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card"
...yet the Home Office caseworkers may not know their own Rules...and still refuse the application, demanding the valid original passpport !
Under EU law it is not necessary that a person be working in a member state in order to be entitled to family benefits in respect of his children living in another member state. So ruled the Court of Justice of the European Union in C-322/17 Bogatu v Minister for Social Protection.
22 February 2019 – 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
24 February 2019 – 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
In a newly reported judgment the Upper Tribunal has quashed the Secretary of State’s decision to refuse a request from the Greek government to take charge of the asylum claims of a mother and her three children so they could reunite with the father, who lives in the UK. The case is R (BJ & Ors) v Secretary of State for the Home Department (Article 9, Dublin III; interpretation) [2019] UKUT 66 (IAC).
The Home Office had refused to let the family come to the UK because the father, who had previously been recognised as a refugee, had become a British citizen. As a result, the mother and children were stuck in Greece while the father remained in the UK, despite the family having been identified by the Greek government as eligible for transfer to the UK.
The Home Office argued that Article 9 of the Dublin III Regulation only applied to current beneficiaries of international protection and therefore excluded this family because the father was no longer a refugee. That is despite an Upper Tribunal decision from last year which rejected that interpretation. The present tribunal chose not to adopt the reasoning of the earlier decision, but fortunately still concluded that Article 9 applies to both current and former beneficiaries of international protection. The decision is a victory for common sense.
27 February 2019 – 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
>>> UK Immigration White Paper anaylsis
From 1 January 2021, everyone, bar British and Irish citizens, will be subject to immigration control. The current system will apply to EU nationals in the same way it currently does to TCNs.
a. EU citizens will not be visa nationals and will continue to be able to use the e-gates.
b. (EU) Visitors will be allowed to switch into Tier 2 employment.
c. An Electronic Travel Authorisation (ETA) will be introduced for those who do not need to obtain a visa before travelling to the UK for visiting purposes. This is similar to the US ESTA scheme. The EU is also planning to introduce a similar scheme – ETIAS – which UK citizens will be subject to after Brexit.
d. For skilled workers: Tier 2 (General) will be opened to medium skilled workers with the skills threshold dropping from RQF level 6 to 3.
e. RLMT will be abolished for RQF Level 6 positions but it appears that it may be retained in some form for levels 3-5.
f. ISC will remain in place for all Tier 2 migrants.
g. The immigration cap which applies to most Tier 2 (General) migrants applying overseas will be abolished.
h. A consultation on the salary threshold is foreseen for Tier 2 (General) applicants. However, the minimum salary for ICT applicants will be retained. They are looking to explore options for start-ups who cannot pay high wages but can provide equity into the business.
i. Small companies that only need to sponsor a small number of migrants may not require a sponsor licence is likely to refer to a work permit scheme where you apply directly to the Home Office who acts as a ‘sponsor’.
j. Sponsorship – the White Paper refers to greater reliance on data held across government in order to adopt a more risk-based approach and remove bureaucracy for employers. The issue is how the Home Office will police this. It appears that this will lead to the Home Office doing a lot more desktop reviews e.g. checking HMRC records to ensure that the salary being paid matches the one stated on the CoS.
On the minimum salary and whether the Shortage Occupation List will be retained if the Tier 2 cap is abolished – it was thought that they might retain the £30,000 threshold, although the Home Office said that they would consult on this, but expand the shortage occupation list and that roles on that list would be subject to a lower salary threshold.
Low Skilled Workers:
An uncapped temporary immigration route will be introduced which will allow nationals of certain low risk countries to come to the UK for up to 12 months to work.
The White Paper emphasises that this category will not lead to ILR, no dependants will be able to accompany the main applicant and there will be a 12-month cooling off period once the migrant has left the UK. It may be difficult for the Home Office to prevent abuse of this category. It could be seen as enabling people simply to pay for the privilege of working in the UK. This appears to be a very liberal system which goes beyond what is offered by other countries and could end up being a bit of a free for all for nationals from the designated countries.
Seasonal agricultural worker scheme is apparently being introduced very shortly.
The Youth Mobility would also be extended to EU countries, on a reciprocal basis.
It appears that the White Paper is signalling the end of the Points Based System as no reference is made to it in the document.
Self-employment routes
Tier 1 (Entrepreneur) will be replaced by innovator and start-up visa categories. However, the Home Office does not appear to have consulted on the requirements for these categories.. Numbers permitted under Tier 1 (Exceptional Talent) will be increased.
The White Paper appears to indicate that the only routes for self-employment which lead to ILR, with the exception of the Tier 1 (Exceptional Talent) route, will continue to be those requiring investment. It seems this will be a massive issue for those EU nationals who could previously come and establish themselves in business in the UK without having to make an investment.
Everyone who graduates with a bachelor's or master's degree from a UK insti***ion will be given six months to work in the UK after the end of their course. PhD graduates will get 12 months.
The key issue as far as studying is concerned is that it appears that EU students will fit in to Tier 4. The White Paper does talk about streamlining or making it less burdensome on the sponsors but only a commitment to look at that rather than making suggestions as to how they are looking to change it.
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>>> Family members of cross border workers can derive EU right to reside if needed for childcare: https://tribunalsdecisions.service.gov.uk/utiac/2018-ukut-426
The headnote:
1. In determining whether the absence of adequate provision for the childcare of the child of a Union citizen may be a factor capable of discouraging that Union citizen from effectively exercising his or her free movement rights under Article 45 TFEU, the Tribunal will need to undertake a wide evaluative assessment of the particular childcare needs in light of all relevant circumstances.
2. It is necessary for an appellant claiming to have a derivative right of residence under Article 45 TFEU to establish a causal link between the absence of adequate childcare and the interference with the effective exercise by a Union citizen of his or her free movement rights, and the appellant will need to demonstrate, by the provision of reliable evidence, that genuine and reasonable steps have been taken to obtain alternative childcare provision.
The Upper Tribunal has held in the case of LS (Article 45 TFEU – derivative rights) [2018] UKUT 426 (IAC) that the family member of a cross border worker within the EU — one who lives in one EU country but works regularly in another — can derive a right of residence from Article 45 TFEU if required for childcare by the cross border worker. The determination is based on the little-known case of C-457/12 S & G.
On the facts, this meant the foreign national mother / mother-in-law of a naturalised British couple was allowed to remain in the UK under EU law because the couple were both traveling regularly to the EU for work and the mother was needed for childcare. The family had no other reasonable childcare possibilities available to them and the tribunal was not willing to find that the mother should give up her job to do the childcare.
The tribunal held that, to succeed, first of all, the appellant needs to show:
1. That he or she is a family member (for example, spouse or partner or dependent parent or grandparent);
2. Of a Union citizen who is exercising Article 45 TFEU rights as a worker in another EU country (“Any Union citizen who regularly travels, in the course of his or her professional activities, to a Member State other that the Member State in which he or she resides will fall within the scope of Article 45.”);
3. And that the appellant is needed by the Union citizen for childcare purposes, which will require demonstration “by the provision of reliable evidence, that genuine and reasonable steps have been taken or investigated to obtain alternative childcare provision”;
4. And that the Union citizen would be deterred from exercising his or her Article 45 free movement rights as a worker if the childcare was not available (“Any interference must be real such that the Tribunal is satisfied that the Union citizen will in fact be discouraged from the effective exercise of his or her rights as a direct consequence of the childcare issues.”).
When it comes to demonstrating that alternative childcare is not feasible the tribunal makes clear that merely preferring that a family member provide the childcare is not sufficient and some serious effort is needed:
“Sources of alternative childcare may include, inter alia, other friends or family, the child’s nursery or school (including breakfast or after school clubs), child-minders, the use of one or more au pairs, the employment of one or more live-in nannies, or a combination of the above.”
The case succeeded on its facts. An au pair arrangement would not work because there are limits to au pair contracts and evidence of babysitter searches was presented to the tribunal. The child was already at a full time nursery but the couple worked such long hours and travelled so frequently for work that a team of three live-in nannies would be needed to provide 24/7 childcare frequently but on an unpredictable basis. The tribunal held this would not be feasible for the couple.
>>> UKVI Guidance: EU Settlement Scheme pilot: applicant information: https://www.gov.uk/government/collections/eu-settlement-scheme-pilot-applicant-information?utm_source=c72b8ffd-964a-4bf4-abd5-9e47ee139dd3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information for applicants to the EU Settlement Scheme during the pilot running from 1 November to 21 December 2018.
Updated to add closing and reopening date for applications.
>>> Immigration White Paper published – some interesting points: https://www.gov.uk/government/publications/the-uks-future-skills-based-immigration-system
The UK Government intends to:
• Scrapping the overall cap on sponsored work visas, currently branded as Tier 2 (General)
• Lowering the skills threshold from level 6 (degree) to level 3 (A-level)
• Abolishing the Resident Labour Market Test
• Reducing the bureaucratic burden on sponsoring employers
The minimum income will be at £30 000, although this is likely to be further reduced to £21 000.
Workers, including the EU citizens who arrive after the implementation period, in lower skilled jobs, will only be able to work in the UK for up to 12 months with the obligatory cooling off period of 12 months. Also, workers in the lower skills job may not be able to bring dependents with them.
As usual with the UK Government plants, the above may well (not) be implemented or (heavily) amended.
The new system will be phased in from 2021. It is about future migration and so will not affect EU citizens already living in the UK, who will be able to apply for “settled status” in order to stay legally after Brexit (whether or not there is a deal on an orderly exit).
>>> UKVI News: EU Settlement Scheme rolled out to public test phase: https://www.gov.uk/government/news/eu-settlement-scheme-rolled-out-to-public-test-phase?utm_source=09f6a04d-09ba-46af-95b8-5c1a614d4304&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
After successful private pilots of the system, the next testing phase of the EU Settlement Scheme is now opening more widely.
EU citizens living in the UK who have a valid passport will be able to take part in a public test phase of the EU Settlement Scheme.
From 21 January 2019, EU citizens, as well as their non-EU citizen family members who hold a valid biometric residence card, will be able to apply for the immigration status they will need once the UK has left the EU. By applying during this test phase, they will also provide valuable insight into how the system is performing so that further improvements can be made before the scheme is fully rolled out from March 2019.
>>> Settled and pre-settled status for EU citizens and their families: https://www.gov.uk/settled-status-eu-citizens-families
A detailed UK Government’s overview of the process
>>> Immigration health surcharge: policy equality statement - https://www.gov.uk/government/publications/immigration-health-surcharge-policy-equality-statement?utm_source=7d0a157e-99ce-4c0f-934a-8bb247ec1e59&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A policy equality statement on increasing the immigration health surcharge.
The NHS Surcharge fee will be increased (£150/£200 will become £300/£300 respectfully)
>>> Useful EEA case-law in relation to the Primary responsibility for adults:
- EA014782016 [2018] UKAITUR EA014782016 (5 April 2018)
- Patel v The Secretary of State for the Home Department [2017] EWCA Civ 2028 (13 December 2017)
- TR (Pakistan) v Secretary of State for the Home Department [2015] EWCA Civ 1412 (01 December 2015)
- Ayinde and Thinjom (Carers – Reg.15A – Zambrano) [2015] UKUT 560 (IAC) (13 August 2015)
>>> Can a child of the 2 parents with ILR, who was born outside of the UK, be granted ILE (Indefinite Leave to Enter) ?
The answer is “yes”. The child should apply for ILE Entry clearance as soon as possible.
The parents also need to prove that they have adequate maintenance and accommodation. The child needs to pass (if relevant) the TB test etc.
The parents will need to show that it is their intention to settle in the UK (ie intend to make the UK their home) and that they’re not just applying/returning for the purpose of getting their child indefinite leave (para 297(i)(b)).
>>> Immigration health surcharge to double from 8 January 2019
The immigration health surcharge will double on 8 January 2019. The extra fee paid by visa applicants to fund the NHS will rise to £400 a year, up from £200, for applications made on or after that date. Students and those on the Youth Mobility Scheme pay £300 (up from £150).
An Order authorising the increase was made on 18 December and will comes into force “on the twenty-first day after the day on which it is made”.
>>> Appealing with a child who is over 17 at the date of the hearing ? Beware of the Rules !
If a child of an appellant has turned 18 or more at the date of the hearing, then the Section 85(4) comes into play and therefore the child cannot meet the rules under para 297(ii).
>>> Court of Appeal finds that ordinary residents should be first in the queue for organ donations: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2696.html
One line: Access to organs — but only if you have ILR.
>>> Home Office man falsified records for hundreds of illegal immigrants: https://www.thetimes.co.uk/article/home-office-man-falsified-records-for-hundreds-of-illegal-immigrants-8px5prc2g
A junior Home Office official was the key figure in a £6 million conspiracy that enabled hundreds of illegal migrants to remain in the UK.
>>> Can You Get a UK Bank Account as a Non-UK Resident?
See https://www.theaccountancy.co.uk/articles/can-you-get-a-uk-bank-account-as-a-non-uk-resident-13365.html
>>> Higher damages payable for unlawful detention caused by delay in providing bail accommodation: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3420.html
The High Court has ruled that a claimant is entitled to extra unlawful detention damages for frustration and anxiety where the Home Office fails to provide a release address. The guidance on this issue provided by R (Diop) v Secretary of State for the Home Department [2018] EWHC 3420 (Admin) is especially important in light of the changes made to the system of bail accommodation since the Immigration Act 2016 came into force. The Home Office has refused to set up an application system for applying for accommodation under Schedule 10 of the Act, which has led to more detainees resorting to applications for bail in principle from the First-tier Tribunal and lengthy waiting periods for release after bail has been granted.
This decision means that the Home Office will have to pay additional compensation if that delay is unlawful.
>>> UKVI Guidance: UKVI Service Standard Guidance updated: https://www.gov.uk/government/organisations/uk-visas-and-immigration/about-our-services?utm_source=58492ded-e812-452d-b882-b9f9f41b5c44&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
UKVI have updated their service standard guidance.
>>> Tier 2 Secondary Employment and the NHS Sucarge fee: http://www.ponaehalitut.co.uk/forums/newreply.php?p=1825699&noquote=1
According to the UK BA, a migrant who wishes to make an application for secondary employment would have to pay the IHS charge again and then make a refund claim.
>>> Immigration and nationality law for adopted children
There are different types of adoption:
-Adoptions under the terms of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 (or just “Hague Convention” in this context). The Hague Convention only applies to inter-country adoptions. In other words, a family based in the US adopting a child in the US cannot adopt under the terms of the Hague Convention. In addition, not all counties are party to the Convention.
-Overseas adoptions recognized by UK law. These are adoptions which took place in countries or territories whose adoption procedures are recognized by the UK. For adoptions which took place before 3 January 2014, the list of countries is found in The Adoption (Designation of Overseas Adoptions) Order 1973 and The Adoption (Designation of Overseas Adoptions)(Variation) Order 1993. For adoptions which took place after 3 January 2014, the list of countries is found in The Adoption (Recognition of Overseas Adoptions) Order 2013 for England, Wales and Northern Ireland; and in The Adoption (Recognition of Overseas Adoptions)(Scotland) Regulations 2013 for Scotland.
- Overseas adoptions not recognized by UK law. These are adoptions which took place in countries not listed above. These cases can be very difficult in immigration terms unless they are classed as “de facto adoptions” (see below) but the recent case of W v SSHD [2017] EWHC 1733 (Fam) provides a rare example of a reported successful resolution, although not without considerable stress and expense
- De facto adoptions, defined at paragraph 309A of the Immigration Rules as situations where:
(i) The adoptive parents have been living together abroad for at least eighteen months; and
(ii) The adoptive parents have been living together with the child for twelve months; and
(iii) The adoptive parents have cared for the child for the full eighteen month period.
De facto adoptions are a concept of the Immigration Rules. They do not “mean” anything under family law and do not grant parental rights to parents or nationality rights to a child.
Immigration and nationality law apply differently depending on the type of adoption.
>>> Tribunal updates Practice Directions: https://www.judiciary.uk/publications/practice-direction-for-the-immigration-and-asylum-chambers/
The immigration and asylum tribunal has issued updated but essentially unchanged Practice Directions. The new document is almost identical to the previous version, dated November 2014. It seems that there has been just one change:
"13. Bail applications
13.1 Subject to First-tier Rule 39(3), an application for bail must, if practicable, be listed for hearing within six working days of receipt by the Tribunal of the notice of application."
>>> The UK BA starts issuing refunds for the Super Premium Application in cases they are not able to consider the application within 24 hours
A colleague has just received an email from the UK BA, confirming that the UK BA has refunded his client £610 as they were not able to make a decision in 24 hours… at least some relief for client.
>>> The NHS surcharge fees has been increased from the 8th January 2019
Today (8 January 2019), the Immigration Health Surcharge has increased from £200 to £400 per year; £150 to £300 for students and those on the Youth Mobility Scheme. This increase was approved by Parliament in December 2018. Those who make an application on or after 8 January 2019 will pay the new surcharge rate.
>>> UKVI Guidance: Guidance for dependants of UK visa applicants (Tiers 1, 2, 4, 5): https://www.gov.uk/government/publications/guidance-for-dependants-of-uk-visa-applicants-tiers-1-2-4-5?utm_source=99ff3820-a368-4c61-b6b2-2320ff0a58ee&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Full guidance on the policy for applications by the family of people who have UK visas under the points-based system (PBS dependants).
>>> Strasbourg court upholds deportation of Turkish man born and raised in Germany: https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-188384%22]}
In Cabucak v Germany (application no. 18706/16), the European Court of Human Rights dismissed a strong Article 8 claim to uphold a deportation order made against a serial drug-dealer.
Mr Cabucak, who despite being a Turkish national was born and raised in Germany, has a tragic life story. His father killed his mother when he was two years old. He has a German daughter and successfully appealed against a previous deportation order in 2005. Unfortunately, Mr Cabucak continued to commit criminal offences and therefore the German authorities made a second deportation decision in 2008 which was upheld by the domestic courts.
The European Court of Human Rights agreed with the German authorities that deportation was a proportionate response to Mr Cabucak’s offending. It accepted that there would be some negative impact on his daughter and noted that he had only been to Turkey on two brief holidays as a child, but this was not enough for him to succeed under Article 8.
>>> New immigration policy on DNA evidence: https://www.gov.uk/government/publications/dna-policy
The new policy makes clear that where a relationship is in doubt, the applicant declines to produce DNA evidence and the Home Office ultimately concludes that the relationship is unproven (supposedly on the balance of probabilities standard of proof, although the policy rather unhelpfully does not actually say this) then the application will be refused.
>>> The UK BA does not cope with the 24 hour Super Premium Service applications
The following E-mails are being sent to the applicants/lawyers by the UK BA:
"If we cannot decide the application within the 24- hour service standard for reasons outside the control of the customer the application will be decided as quickly as possible and the SPV element of the fee refunded to the customer. We are currently reviewing decisions made since the start of the UKVCAS transition period to identify cases where we have not delivered a decision within the SPV service standard. We aim to complete this exercise by January 2019.
Yours faithfully,
UK Visas and Immigration"
>>> Can a visitor lodge an application to register as a British citizen via the form UKM ?
Apparently, the answer is "yes", according to the form and the current Guidance: https://www.gov.uk/government/publications/application-to-register-as-a-british-citizen-form-ukm
>>> Home Office cannot make second deportation decision absent change of circumstances: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2848.html
In the case of Harverye v Secretary of State for the Home Department [2018] EWCA Civ 2848, Lord Justice Irwin in the Court of Appeal held that where an appeal against deportation is allowed, the Home Office cannot make a second decision to deport unless there has been a change of circumstances.
>>> UKVI Guidance: Sponsor a Tier 2 or 5 worker: guidance for employers: https://www.gov.uk/government/publications/sponsor-a-tier-2-or-5-worker-guidance-for-employers?utm_source=ac7903af-c1f3-4e5b-9de0-2140c9fedb5d&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guide on how to apply for a Tier 2 or 5 sponsor licence and how to sponsor a migrant worker:
>>> UKVI Guidance: Guidance on policy for UK visas under Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/guidance-on-policy-for-uk-visas-under-tier-1-exceptional-talent?utm_source=5aa40bd4-2258-4b42-a04b-0c7416dafc7b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This is the full guidance on UK Visas and Immigration’s policy on visa applications under Tier 1 (Exceptional Talent).
>>> UKVI Form: Tier 1 (Exceptional Talent) endorsement review form: https://www.gov.uk/government/publications/application-for-endorsement-for-tier-1-exceptional-talent-visa and https://www.google.com/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&cad=rja&uact=8&ved=2ahUKEwjcka-XvOvfAhW1oXEKHct8BKcQFjAAegQICRAC&url=https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/300994/Code_of_Practice_-_April_2014.pdf&usg=AOvVaw0d4vFgEfzzl3OD3w9dnowi
Form to apply for a Tier 1 (Exceptional Talent) endorsement review.
Updated codes of practice for competent bodies: Tier 1 (Exceptional Talent) in line with changes to the Immigration Rules.
>>> UKVI Guidance: Studying under Tier 4 of the points-based system: https://www.gov.uk/government/publications/studying-under-tier-4-of-the-points-based-system?utm_source=96fdfd33-3774-466e-8941-ee217389a960&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for how UK Visas and Immigration considers applications from people to enter or remain in the UK under Tier 4.
Replaced the document with a new version.
>>> UKVI Guidance: Good character: nationality policy guidance: https://www.gov.uk/government/publications/good-character-nationality-policy-guidance?utm_source=d8e5166c-119d-45a8-927f-271ae260b93c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on assessing the good character requirement in nationality applications.
Updated guidance.
>>> UKVI Guidance: Points-based system: Tier 1 (Exceptional Talent): https://www.gov.uk/government/publications/points-based-system-tier-1-exceptional-talent?utm_source=1935f115-ea9d-40f5-917a-1bb5ebc3c4be&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for how UK Visas and Immigration considers applications in the Tier 1 (Exceptional Talent) category of the PBS.
Replaced the document with a new version.
>>> Failure to submit specified documents fatal to Tier 1 (Entrepreneur) application: https://www.bailii.org/ew/cases/EWCA/Civ/2018/2861.html
The Court of Appeal has reluctantly but unanimously agreed with the Home Office’s decision to refuse a Tier 1 (Entrepreneur) application for further leave to remain based on a factual issue of specified documents not being submitted. It rejected arguments that evidential flexibility should apply. The case is Harpreet Singh v Secretary of State for the Home Department [2018] EWCA Civ 2861.
>>> Two successful judicial reviews in “paragraph 322(5)” tax cases: https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh128.pdf?sfvrsn=0 and https://www.scotcourts.gov.uk/docs/default-source/cos-general-docs/pdf-docs-for-opinions/2018csoh127.pdf?sfvrsn=0
Since January 2015, 1,700 settlement applications from Tier 1 (General) migrants have been refused under paragraph 322(5) of the Immigration Rules, primarily due to discrepancies between earnings declared to HMRC and to the Home Office at the time of making an application.
During that time, the higher courts in England and Wales have been busy deciding issues relating to the plausibility of explanations put forward by applicants and issues of fundamental fairness whilst the Court of Session in Scotland has remained silent – until now.
Dadzie [2018] CSOH 128 and Oji [2018] CSOH 127 are the first reported cases in the Court of Session on refusal of indefinite leave to remain under paragraph 322(5) because of tax discrepancies. The facts in both cases were very similar and the court heard them together. Ultimately both decisions were overturned because of flaws in how the allegations were put to the applicants and a failure to consider the innocent explanations put forward.
>>> Passport application unlawfully refused ?
One can opt for the paid for (£££) reconsideration request or just simply use the complaints procedure via this link (free): https://www.gov.uk/government/organisations/hm-passport-office/about/complaints-procedure
>>> UKVI Guidance: 3C and 3D leave: https://www.gov.uk/government/publications/3c-and-3d-leave?utm_source=b021f702-e86f-4d04-b73f-7acd5c0e432c&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on how staff can prevent an individual from becoming an overstayer while they are awaiting or appealing a decision.
>>> UKVI Guidance: EU Settlement Scheme: applicant information: https://www.gov.uk/government/collections/eu-settlement-scheme-applicant-information?utm_source=f771097d-79ce-493d-8c3e-4131302dc441&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Information for applicants to the EU Settlement Scheme during the public test phase running from 21 January 2019.
>>> UKVI Guidance: Using the ‘EU Exit: ID Document Check’ app: http://www.ilpa.org.uk/resource/35054/ukvi-guidance-using-the-eu-exit-id-document-check-app-17-january-2019
Information for EU citizens and their families applying to the EU Settlement Scheme.
>>> UKVI Guidance: EU Settlement Scheme: evidence of UK residence: https://www.gov.uk/guidance/eu-settlement-scheme-evidence-of-uk-residence?utm_source=c91d4657-2169-4607-85c9-757f08d09547&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 some benefits records.
Added information about the number of documents that can be submitted and the maximum file size of each document.
>>> How do I renew my brp that says no time limit: https://www.whatdotheyknow.com/request/how_do_i_renew_my_brp_that_says
>>> Immigration Rules must be rewritten, Law Commission says
The Immigration Rules should be redrafted and restructured in order to cut down on complexity, the Law Commission says. Launching a consultation on Simplifying the Immigration Rules today, the influential law reform body proposes major revisions to “provide a more logical structure, remove unnecessary repetitions and improve the drafting”.
The regulations that underpin the UK’s immigration system have grown from 40 pages in 1973 to around 1,100 today, the commission points out. The sheer length, unwieldy drafting and confusing structure of the Rules make it difficult for migrants — as well as Home Office decision-makers — to understand and follow them.
The Law Commission gives the example of the rules on applying to extend an entrepreneur visa. These include a requirement that the applicant has created two new full-time jobs by setting up their business. Paragraph 50 of Appendix A now devotes 750 words to the evidence required to prove this; the equivalent a decade ago took just 76 words.
On structure, the Law Commission says that having the requirements for a particular visa scattered around different sections of the Rules is the worst possible approach. Instead, it recommends that the redrafted Rules follow either
- a “common provisions” approach, where applicants can check the requirements common to all visas before turning to their particular route
- a “booklet” approach, where all the requirements for a particular route are gathered together under one heading.
Either way, the commission provisionally recommends that the Rules be divided into 15 categories:- Visitors
- Students
- Work
- Short-term work and work experience
- Business and investment
- Family members of workers, businesspersons, investors and students
- Family members of British citizens, settled persons and persons with refugee/humanitarian protection status
- Long residence and private life
- Armed forces
- Other categories
- ECAA nationals and settlement
- EU citizens and family members
- Asylum
- Temporary protection
- Stateless persons
There are 54 consultation questions in total. The deadline for responses is 26 April 2019.>>> So you are chaning your Tier 2 employer ? You may need to:
Your new employer will need to assign you with an unrestricted CoS in order for you to make a Change of Employment application. However, your new employer will probably first have to have run a resident labour market test (RLMT) before assigning the CoS, unless an RLMT exception applies.
The Tier 2 application can then be submitted online here:
https://visas-immigration.service.gov.uk/product/tier2-general
You will have to pay the application fee. It appears you will also have to pay the IHS fee again – which is due to increase to £400 per year tomorrow. You should though get a refund on the IHS.
There is some reference to Change of Employment applications in the Tier 2 guidance here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/725905/Tier-2-5-sponsor-guidance_07-2018_final.pdf
and in the Tier 2/5 SG here:
https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/753725/Tier_2_Policy_Guidance_11_2018.pdf
>>> UKVI guidance: EU Settlement Scheme: apply for an administrative review: https://www.gov.uk/guidance/eu-settlement-scheme-apply-for-an-administrative-review?utm_source=6359212a-bd43-4591-aef3-21837fad81a3&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
How to apply for an administrative review under the EU Settlement Scheme.
Added information that applications for administrative review must be made from inside the UK
>>> Unlawful entrants can’t rely on domestic violence concession: https://www.bailii.org/ew/cases/EWHC/Admin/2018/3475.html
The domestic violence concession allows victims of domestic abuse access to public funds while they make an application for settlement. The High Court has now made clear that this concession only applies to those who are already on the route to settlement as a partner in the case of FA v Secretary of State for the Home Department [2018] EWHC 3475.
>>> Settled status fee for EU citizens scrapped: https://www.gov.uk/government/speeches/pm-statement-to-the-house-of-commons-on-brexit-21-january-2019
The Prime Minister has announced that the £65 fee for EU citizens applying for post-Brexit settled status will be scrapped.
>>> UKVI Guidance: Short-term students: https://www.gov.uk/government/publications/short-term-students?utm_source=898deba5-621e-4cef-96b3-45b1c8132beb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on how short-term student applications for entry clearance or leave to enter are considered.
>>> UKVI Guidance: Tier 1 (Entrepreneur) application guidance: https://www.gov.uk/government/publications/guidance-on-application-for-uk-visa-as-tier-1-entrepreneur
Updated guidance to apply to come to the UK as a Tier 1 (Entrepreneur) or to extend your stay.
>>> Brexit doesn’t mean Brexit just yet, Court of Justice holds in asylum case: http://curia.europa.eu/juris/document/document.jsf?text=&docid=210174&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=9859083
A reminder from the Court of Justice of the European Union that EU law still applies to the UK until Brexit actually happens. The Irish asylum authorities had asked, in effect, whether the triggering of Article 50 meant that it shouldn’t send asylum seekers across to the UK any more. The Court of Justice said no. The case is C‑661/17 MA, SA and AZ v International Protection Appeals Tribunal and others.
>>> Outside of the UK Settlement application - from which countries do I need to send the documents to Sheffield by post ? See https://www.whatdotheyknow.com/request/437582/response/1112711/attach/html/6/FOI Annex 45712.pdf.html
>>> UKVI Guidance: Appendix FM 1.0b: family life (as a partner or parent) and private life: 10-year routes: https://www.gov.uk/government/publications/appendix-fm-10b-family-life-as-a-partner-or-parent-and-private-life-10-year-routes?utm_source=e28667aa-c28a-4887-8c32-52a19cccc32a&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
The updated Guidance on how the UK Visas and Immigration staff consider claims on the basis of family life or on the basis of private life, on a 10-year route to settlement
>>> Is it possible to switch from Tier5 intoto Tier2 in-country?
Yes, it is possible under the para 245HD.(b)(i):
(4) a Tier 5 (Temporary Worker) Migrant...
But it is NOT possible for the Tier 5 (Youth Mobility Scheme) Temporary Migrants.
>>> Can a PBS dependent apply for ILR independently from the main PBS applicant ?
The answer is usually "No", because the PBS dependent needs to satisfy the Para 319E, including
(b) The applicant must be the spouse or civil partner, unmarried or same-sex partner of a person who:
(i) has indefinite leave to remain as a Relevant Points Based System Migrant; or
(ii) is, at the same time being granted indefinite leave to remain as a Relevant Points Based System Migrant, or
(iii) has become a British Citizen where prior to that they held indefinite leave to remain as a Relevant Points Based System Migrant.
>>> Can a migrant who used deception in the past under the Tier 1 and Tier 4 routes apply for ILR under the Appendix FM ?
For example, an applicant was refused visas under the Tier 1 and Tier 4 immigration categories 4 because of fraudulent documents with the 10 years ban in 2012. The decision letter says that any future applications under spouse route etc. would not be affected. So, in 2015 the applicant was granted entry clearance as a spouse of a British citizen. In 2020 the applicant is planning to apply for ILR.
Can this applicant expect a grant of ILR ?
The answer is "Probably", if the applicant satisfies the Para D-ILRP.1.1., including satisfying the Paras S-ILR.
If the applicant previously satisfied the Paras S-LTR, despite the previous fraudulent documents, then the applicant should be able to satisfy the analogous paragraphs in Para S-ILR.
This is a complex case and assistance of an experiences firm like the Legal Centre (www.legalcentre.org) is advised.
>>> UKVI Guidance: European Temporary Leave to Remain in the UK: https://www.gov.uk/guidance/european-temporary-leave-to-remain-in-the-uk?utm_source=a52f30df-a365-4132-a07b-0b048d30e64b&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
>>> UKVI News Story: Government outlines no deal arrangements for EU citizens: https://www.gov.uk/government/news/government-outlines-no-deal-arrangements-for-eu-citizens?utm_source=c8c35f32-63bf-4847-a716-ceba7ecf2d50&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
In the event of no deal, EU citizens will be able to enter the UK to visit, work or study after 29 March 2019. For stays longer than 3 months, European Temporary Leave to Remain will be required.
Guidance for EU citizens coming to the UK to visit, study, work or join family if the UK leaves the EU with no Brexit deal.
>>> UKVI Policy Paper: EU immigration after free movement ends if there's no deal: https://www.gov.uk/government/publications/eu-immigration-after-free-movement-ends-if-theres-no-deal?utm_source=82e9b6ca-2abe-41a2-bbf6-ed0525934d39&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This explains the transitional immigration arrangements for EU citizens arriving in the UK after free movement has ended if the UK leaves the EU without a deal.
>>> UKVI Guidance: Apply for a Tier 4 sponsor licence: https://www.gov.uk/guidance/apply-for-a-tier-4-sponsor-licence?utm_source=3bf50786-0af1-40e1-9e37-0441349b6eae&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
How to apply for a student sponsor license.
Updated content.
>>> Can I ask the Home Office to waive their application fees ?
The answer is "Yes, but there are conditions".
The following 2 cases form the basis of Home Office policy on fee waivers. The first is R (Omar) v Secretary of State for the Home Department [2012] EWHC 3448 (Admin). The second case is R (Carter) v Secretary of State for the Home Department [2014] EWHC 2603 (Admin).
The case law has found that it was unlawful for the Secretary of State to charge a fee for a human rights based application where the applicant cannot afford the fee. In other words, charging a fee for a human rights based immigration application will itself breach human rights law where the person concerned cannot afford the fee and the Secretary of State must agree to waive the fee when an applicant is unable to afford the fee and has a human rights claim.
Who can qualify for a fee waiver?
In accordance with the above case law, only those who raise a human right claim will be eligible for a fee waiver, and only where this human rights claim “constitutes a substantive basis of their application”. More particularly, the following groups can qualify:
- Applications for leave to remain under the 5-year partner route from applicants who are not required to meet the minimum income threshold because their sponsor is in receipt of one or more specified benefits and who instead must demonstrate that their sponsor can provide adequate maintenance
- Applications for leave to remain under the 5-year parent route
- Applications for leave to remain under the 10-year partner, parent or private life route, where the applicant claims that refusal of that application for leave to remain would breach their rights (or the rights of other specified persons) under Article 8 of the European Convention on Human Rights (the right to respect for private and family life)
- Applications for leave to remain on the basis of other ECHR rights
- Applications for further leave to remain from applicants granted discretionary leave following refusal of asylum or humanitarian protection, where the applicant claims that refusal to grant further leave to remain would breach their ECHR rights
- Applications for further discretionary leave from victims of trafficking or slavery who have had a positive conclusive grounds decision, have already accrued 30 months’ discretionary leave and are seeking to extend it for reasons related to trafficking or slavery
It is possible for an applicant to pay for their fee but apply for a fee waiver for one or more dependant.
Importantly, applications for Indefinite Leave to Remain (ILR), even if based on a human rights claim, are not covered. Applicants could be extending their leave forever, until they can afford to pay the indefinite leave to remain fee. This is currently £2,389 and will in all likelihood continue to increase over the years.
Criteria to be granted a fee waiver
Applicants for a fee waiver will need to show that one of the following three circumstances apply:
1. They are destitute
Applicants are considered destitute when
- They do not have adequate accommodation or any means of obtaining it; or
- They have adequate accommodation or the means of obtaining it, but cannot meet their other essential living needs.
2. They would be rendered destitute by payment of the fee
This route is for those who are not destitute at the time of the application, and have adequate accommodation and can meet their other essential living needs, but have no disposable income.
In these cases, however, there is also a need to consider
- Whether, if receiving accommodation and essential living needs support from family or friends, they are able to borrow the required amount for their immigration application also (but only if receiving accommodation this way).
- Whether the applicant’s financial circumstances are likely to change – for instance, for those with the relevant leave, because of an offer of employment – within a reasonable period (and it would be reasonable in all the circumstances to expect the applicant to delay their application for this length of time).
3. There are exceptional circumstances
The Home Office Fee Waiver Guidance can be found here: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/769216/fee-waiver-v3.0ext__003_.pdf
How to submit the application and what evidence should be included
Fee waiver requests are made online, before the application for leave to remain is made: https://visas-immigration.service.gov.uk/product/fee-waiver
What happens after the fee waiver application is submitted?
What happens after an application for a fee waiver has been considered depends on the outcome of the application.
Application is granted
If an applicant is granted a fee waiver they will be issued with a Unique Reference Number (URN) to be used when applying for leave to remain online.
The application for leave to remain must be submitted within 10 working days of the date of the decision (not the date that the decision is received). They must then make an appointment at a Service and Support Centre within 17 working days.
If an applicant fails to make the application within these timescales, they may need to make a new fee waiver application. If their leave has expired in the meantime, they may become an overstayer.
Application is refused
The status of an applicant when their application for a fee waiver is refused depends on whether the applicant had valid leave at the time of the application.
Applicants who had valid leave at the time of the application will be advised that they do not qualify for a fee waiver and be given 10 working days to submit additional evidence that demonstrates they qualify for a fee waiver. If the new evidence submitted satisfies the caseworker that they are eligible for a fee waiver, their application will be granted and they will be given another 10 working days to submit the application for leave to remain.
If the new evidence does not satisfy the caseworker that they are eligible for a fee waiver, their application will be refused and they will be given 10 working days to submit an application for leave to remain and pay the application fee. If they do not do so before their leave expires, they will become overstayers.
If the applicant had no valid leave at the date of application, their application will simply be rejected as invalid. They will need to submit a new application with the fee or a new application for a fee waiver.
>>> UKVI Guidance: Applying for a UK visa: approved English language tests: https://www.gov.uk/government/publications/guidance-on-applying-for-uk-visa-approved-english-language-tests?utm_source=f5417c86-34e4-458d-8377-6c34e12d1f60&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
List of tests and test centres approved by UK Visas and Immigration to show that applicants have the required level of English for their visa.
>>> Immigration legal aid cuts to remain in place following major government review: https://www.gov.uk/government/publications/post-implementation-review-of-part-1-of-laspo?utm_source=aa5932f5-0595-4770-bf2a-ad4190123cfb&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
A major government review of legal aid proposes no significant changes in the immigration and asylum field. Despite evidence of the impact of cuts over the past five years, and the role that legal aid would have played in preventing the Windrush scandal, the Ministry of Justice has refused to roll back the Legal Aid, Sentencing and Punishment of Offenders Act 2012 as it relates to immigration work. The sole exception is an amendment granting legal aid to unaccompanied migrant children.
The review, published this morning, shows an 85% reduction in legal help for non-asylum immigration matters since LASPO, and a 62% reduction in full representation.
>>> UKVI Guidance: Considering immigration status and deciding enforcement action: https://www.gov.uk/government/publications/considering-immigration-status-and-deciding-enforcement-action?utm_source=bfcc36f1-8fe6-4be8-b08d-b0cec07cb319&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance for enforcement officers considering immigration status and deciding enforcement action, including curtailment.
Updated ‘European Economic Area: administrative removal’ document.
>>> UKVI Data: Country returns guide: https://www.gov.uk/government/publications/country-returns-guide?utm_source=a4183fe7-1fc1-46ba-8709-78c97e8b22a1&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on returning immigration offenders to their country of origin.
>>> UKVI Guidance: Criminality guidance in article 8 ECHR cases: https://www.gov.uk/government/publications/criminality-guidance-in-article-8-echr-cases?utm_source=047a0f6c-c9f1-49d4-a0d6-3d5617995e8f&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
This guidance deals with how article 8 ECHR cases are considered when deporting a criminal.
>>> UKVI Guidance: Deporting families of foreign offenders: https://www.gov.uk/government/publications/deporting-families-of-foreign-offenders?utm_source=f80a99d2-d91a-4eee-bf0c-2f91afcf6478&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
Guidance on managing the deportation of families of foreign offenders.
>>> Guidance on how ex-gratia payments are managed and resolved, and how actual and non-financial losses are assessed by UK Visas and Immigration, Immigration Enforcement and Border Force: https://www.gov.uk/government/publications/ex-gratia-guidance?utm_source=2fd862ca-f1d4-4875-9338-93d23c307653&utm_medium=email&utm_campaign=govuk-notifications&utm_content=immediate
>>> Can one use the expired passport with the immigration application
The answer is "Possibly". The para 34(5)(b)(ii) of the Rules does provide this opportunity:
"(ii) if the applicant does not have a valid passport or national identity card, their most recent passport or (except a PBS applicant) their most recent national identity card"
...yet the Home Office caseworkers may not know their own Rules...and still refuse the application, demanding the valid original passpport !
>>> No job required to export child benefit, Court of Justice holds: http://curia.europa.eu/juris/document/document.jsf?text=&docid=210563&pageIndex=0&doclang=EN&mode=req&dir=&occ=first&part=1&cid=11559813
Under EU law it is not necessary that a person be working in a member state in order to be entitled to family benefits in respect of his children living in another member state. So ruled the Court of Justice of the European Union in C-322/17 Bogatu v Minister for Social Protection.
Эта среда не была исключением:
1. Получена BRP карточка очередного клиента - Peramnent Residence (EU law). Заявление рассматривали 4 недели.
2. Получено положительно решение по натурализации очередной клиентки. Срок рассмотрения так же 4 недели.
>>> Free movement rights: direct family members of EEA nationals: https://www.gov.uk/government/publications/direct-family-members-of-european-economic-area-eea-nationals
Guidance on free movement rights of direct family members of European Economic Area (EEA) and Swiss nationals
>>> Deportation order revocation process: https://www.gov.uk/government/publications/who-needs-an-entry-clearance-ecb04/ecb04-who-needs-an-entry-clearance
>>> Dublin III family reunion for refugees who have become British citizens: https://www.bailii.org/uk/cases/UKUT/IAC/2019/66.html
In a newly reported judgment the Upper Tribunal has quashed the Secretary of State’s decision to refuse a request from the Greek government to take charge of the asylum claims of a mother and her three children so they could reunite with the father, who lives in the UK. The case is R (BJ & Ors) v Secretary of State for the Home Department (Article 9, Dublin III; interpretation) [2019] UKUT 66 (IAC).
The Home Office had refused to let the family come to the UK because the father, who had previously been recognised as a refugee, had become a British citizen. As a result, the mother and children were stuck in Greece while the father remained in the UK, despite the family having been identified by the Greek government as eligible for transfer to the UK.
The Home Office argued that Article 9 of the Dublin III Regulation only applied to current beneficiaries of international protection and therefore excluded this family because the father was no longer a refugee. That is despite an Upper Tribunal decision from last year which rejected that interpretation. The present tribunal chose not to adopt the reasoning of the earlier decision, but fortunately still concluded that Article 9 applies to both current and former beneficiaries of international protection. The decision is a victory for common sense.
>>> UK Immigration White Paper anaylsis
From 1 January 2021, everyone, bar British and Irish citizens, will be subject to immigration control. The current system will apply to EU nationals in the same way it currently does to TCNs.
a. EU citizens will not be visa nationals and will continue to be able to use the e-gates.
b. (EU) Visitors will be allowed to switch into Tier 2 employment.
c. An Electronic Travel Authorisation (ETA) will be introduced for those who do not need to obtain a visa before travelling to the UK for visiting purposes. This is similar to the US ESTA scheme. The EU is also planning to introduce a similar scheme – ETIAS – which UK citizens will be subject to after Brexit.
d. For skilled workers: Tier 2 (General) will be opened to medium skilled workers with the skills threshold dropping from RQF level 6 to 3.
e. RLMT will be abolished for RQF Level 6 positions but it appears that it may be retained in some form for levels 3-5.
f. ISC will remain in place for all Tier 2 migrants.
g. The immigration cap which applies to most Tier 2 (General) migrants applying overseas will be abolished.
h. A consultation on the salary threshold is foreseen for Tier 2 (General) applicants. However, the minimum salary for ICT applicants will be retained. They are looking to explore options for start-ups who cannot pay high wages but can provide equity into the business.
i. Small companies that only need to sponsor a small number of migrants may not require a sponsor licence is likely to refer to a work permit scheme where you apply directly to the Home Office who acts as a ‘sponsor’.
j. Sponsorship – the White Paper refers to greater reliance on data held across government in order to adopt a more risk-based approach and remove bureaucracy for employers. The issue is how the Home Office will police this. It appears that this will lead to the Home Office doing a lot more desktop reviews e.g. checking HMRC records to ensure that the salary being paid matches the one stated on the CoS.
On the minimum salary and whether the Shortage Occupation List will be retained if the Tier 2 cap is abolished – it was thought that they might retain the £30,000 threshold, although the Home Office said that they would consult on this, but expand the shortage occupation list and that roles on that list would be subject to a lower salary threshold.
Low Skilled Workers:
An uncapped temporary immigration route will be introduced which will allow nationals of certain low risk countries to come to the UK for up to 12 months to work.
The White Paper emphasises that this category will not lead to ILR, no dependants will be able to accompany the main applicant and there will be a 12-month cooling off period once the migrant has left the UK. It may be difficult for the Home Office to prevent abuse of this category. It could be seen as enabling people simply to pay for the privilege of working in the UK. This appears to be a very liberal system which goes beyond what is offered by other countries and could end up being a bit of a free for all for nationals from the designated countries.
Seasonal agricultural worker scheme is apparently being introduced very shortly.
The Youth Mobility would also be extended to EU countries, on a reciprocal basis.
It appears that the White Paper is signalling the end of the Points Based System as no reference is made to it in the document.
Self-employment routes
Tier 1 (Entrepreneur) will be replaced by innovator and start-up visa categories. However, the Home Office does not appear to have consulted on the requirements for these categories.. Numbers permitted under Tier 1 (Exceptional Talent) will be increased.
The White Paper appears to indicate that the only routes for self-employment which lead to ILR, with the exception of the Tier 1 (Exceptional Talent) route, will continue to be those requiring investment. It seems this will be a massive issue for those EU nationals who could previously come and establish themselves in business in the UK without having to make an investment.
Everyone who graduates with a bachelor's or master's degree from a UK insti***ion will be given six months to work in the UK after the end of their course. PhD graduates will get 12 months.
The key issue as far as studying is concerned is that it appears that EU students will fit in to Tier 4. The White Paper does talk about streamlining or making it less burdensome on the sponsors but only a commitment to look at that rather than making suggestions as to how they are looking to change it.